An overturning of popular will


  • Reflecting On The Law
  • Thursday, 27 Feb 2020

The dizzying chain of political developments have raised a number of monumental constitutional issues.

THE unexpected resignation of Prime Minister Tun Dr Mahathir Mohamad and the collapse of the Pakatan Harapan government less than two years after a euphoric victory in May 2018 is a sad illustration of the dark underbelly of parliamentary democracy.

The wish of the voters and the painstaking process of electoral results can be undone by the plotting and intrigue of a few unscrupulous representatives in Parliament.

Unlike the presidential system in the United States, the Westminster system we borrowed from Britain gives no security of tenure to the government or to the legislators.

Under Article 43(4) of the Federal Constitution, if the Prime Minister ceases to command the confidence of the majority of the members of the Dewan Rakyat, then he has two choices.

First, advise the King to dissolve Parliament and call a general election. Second, tender the resignation of the entire Cabinet.

Dr Mahathir chose the second course of action. The King accepted the resignation but asked Dr Mahathir to continue in an interim capacity.

The “interim appointment” has turned the spotlight on a number of monumental constitutional issues dealing with royal powers when there is a vacancy in the post of the Prime Minister.

First, can the King refuse the letter of resignation? Certainly, he can try to persuade the PM to pull back the letter but if the PM refuses, the PM cannot be forced against his will to carry on. So, the answer to the question must be a no.

Second, if the PM resigns, is the Cabinet also dissolved? Around the Commonwealth, there are precedents both ways.

However, it is submitted that under Article 43(2)(b), the Cabinet is the Prime Minister’s personal selection and is appointed by the King on the sole advice of the Prime Minister.

The Cabinet sinks or swims together. It is collectively responsible to Parliament under Article 43(3).

If the PM resigns, all his appointees must vacate their posts to allow the incoming PM to start afresh with new recommendations.

Third, can the King, on his own discretion, dissolve Parliament and call an election?

Some lawyers are quoting Article 55(2), which states that the Yang di-Pertuan Agong may prorogue or dissolve Parliament.

On this basis, they suggest that the King is indeed vested with a discretion to dissolve Parliament on his own.

With all due respect, the power in Article 55(2) is subject to the advice of the Prime Minister under Article 40(1). In general, our King is a constitutional monarch who acts on advice, save in those situations where he is explicitly granted discretion by the law.

Such a discretion is given in Article 40(2)(b) but for a different matter. Article 40(2)(b) explicitly confers on the King a personal power to accept or reject a request for premature dissolution of the Dewan Rakyat.

If Tun Mahathir had made a request for dissolution, His Majesty would have had an undoubted discretion to refuse or accept the request.

However, one should distinguish between “dissolving Parliament on the King’s discretion” and “refusing the PM’s request for dissolution”.

Fourth, is there a time limit for the interim PM? In law, there is no time limit. But that does not mean that he can hold the post until the next general election!

He is there until the King determines the situation in Parliament.

Fifth, if the elected Parliament is still in place but there is a vacancy in the post of the PM due to any factor whatsoever – be it resignation, death, defeat on the floor of the House, break-up of the ruling coalition, loss of leadership position of the ruling majority or defection –then His Majesty has the arduous and pivotal task under Article 43(2)(a) of searching for a leader who, in his opinion, commands the confidence of the members of the Dewan Rakyat.

If there emerges a clear-cut, alternative leader with a sufficient majority of 112 or more, then the King has no choice but to anoint him with the mantle of prime ministership.

But if the situation in Parliament is fluid, and no one person or party seems to have a clear majority, then the King has to play a monumental role.

As a constitutional monarch, he cannot rule the country on his own. He cannot dissolve Parliament on his own. There must be a Prime Minister in place to advise him – even if a temporary one by whatever name called, whether interim, caretaker or acting.

The problem is that the Constitution nowhere uses such terms as interim, caretaker or acting.

In Article 43(2) there is a passing mention of the appointment of a PM and a Cabinet after dissolution (popularly known as caretaker government). But there is no provision for an interim PM while Parliament is still in place.

In such a situation, we cannot wring our hands in despair. We have to rely on constitutional conventions, Commonwealth precedents and to draw an analogy from Article 43(2) to justify the appointment of an interim Prime Minister.

This is what our King has done. There is nothing illegal about it.

In trying to determine the support of the majority of the members of the House, the King can adopt any reasonable method to inform himself of the political situation.

First, he may insist that the interim PM advise him to summon Parliament as soon as may be to take a vote of confidence on the floor.

Second, the King may instruct party leaders to submit their list of supporters.

Third, His Majesty may seek statutory declarations from MPs.

Fourth, he may interview each of the MPs personally in the presence of a witness to record their statement of support.

The MPs’ submissions to the King may determine the political fate of the nation in the near future. The irony, however, is that in a parliamentary democracy, with the evil of defections quite rife, the MPs’ declarations are not eternal, and they may switch loyalties again!

Nevertheless, our King must be commended for his diligence, unprecedented though his methodology is.

Emeritus Professor Dr Shad Saleem Faruqi is holder of the Tun Hussein Onn Chair at the Institute of Strategic and International Studies Malaysia.

The views expressed here are entirely the writer’s own.

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