Legislative restrictions on PM’s term

IN December 2019, the then Paka­tan Harapan government tabled the Constitutional (Amend­ment) (No. 2) Bill 2009 aimed at limiting the prime minister’s tenure to a maximum of two parliamentary terms.

Unfortunately, the Bill did not get enough support and was withdrawn by the successor government, Perikatan Nasional.

Two weeks ago, the proposal was revived by DAP secretary- general Anthony Loke, and Prime Minister Datuk Seri Anwar Ibra­him commented favourably on it.

This has aroused many respon­ses from proponents and opponents. Regrettably, some commen­tators are racialising what is in its core an issue of check and balan­ce, and good governance.

A fundamental question is whe­ther the PM’s term limit is compa­ti­ble with our system of parliamentary government as contrasted with the presidential system in countries like the Philippines and the United States.

In the 36 presidential systems around the world, it is normally the case that the popularly-elected president is limited to one or two terms.

In the Philippines, for example, the president is limited to a single six-year term.

In the United States, it is two consecutive or non-consecutive terms of four years each.

In contrast, in the 73 parliamen­tary systems on record, there is generally no term or time limit to how long a prime minister can serve in office as long as he/she commands majority support in parliament after each electoral exercise.

For example, in Singapore, Lee Kuan Yew occupied the premier’s post for about 31 years.

Malaysian prime ministers Tunku Abdul Rahman and Tun Dr Mahathir Mohamad occupied the PM’s position for a total of 13 and 24 years, respectively.

In India, Jawahar Lal Nehru was the country’s PM for about 16 years.

In support of reform, the following are the prominent arguments:

First, term limits are a necessa­ry, democratic safeguard against authoritarian rule. If power is concentrated in a single leader over a long period of time, there is a real danger of power becoming perso­nalised with resulting abuse­s.

In country after country where the same leader and coalition hold the reins of power decade after decade, democracy often transforms into an “elected dictatorship”. The abuses of 1MDB and during the Covid-19 pandemic are clear illustrations.

Second, term limits though very uncommon in parliamentary demo­­cracies are not entirely unknown. Four out of 73 parliamentary democracies – Thailand, Laos, Cuba and Mongolia – impose term limits.

Third, supporters of the propo­sal also point to an ironic contrast between presidential and parliamentary democracies. It is pointed out that a president has greater democratic legitimacy because his election involves a nationwide electorate. Yet, he is subject to limits on his terms and tenure.

On the other hand, a prime minister is not elected by the people to the office of the PM but is appointed by the King. His election is to a single seat from a single constituency. His claim to power derives from his royal appointment and to the (not always demonstrable) fact that the party or coalition he leads commands a simple majority in the elected House.

Fourth, if the PM happens to lead a “minority government” in a “hung Parliament”, then the issue of lack of legitimacy for the enormous power he wields becomes even more serious.

Objections to the proposal: First, it is pointed out that there is no need for a limit on the PM’s term because elections already serve that purpose. This view flies in the face of facts. In so many countries around the world, leaders manipulate the system to stay in power for decades.

Second, the proposed amendment is criticised by some as an affront to and a violation of the Yang di-Pertuan Agong’s power in Article 40(2)(a) and 43(2)(a) to appoint anyone in His Majesty’s discretion as the PM. While the appointment is discretionary, it is not an absolute but a controlled discretion.

The PM must come from the Dewan Rakyat. Under Article 43(7), he must not be a citizen by naturalisation or registration. He must, in the judgment of the King, be likely to command the confidence of the majority of the members of the Dewan Rakyat. A PM appointed by the King can be voted out of office by a vote of no-confidence, and that will not be an affront to His Majesty.

Despite some difficult precedents from the states, a majority of scholars believe that if a party or coalition has an absolute majo­rity, its leader has a democratic right to be commissioned. At the federal level, it has been the case that only if there is a hung parliament or a loss of majority due to death, defection, resignation or disqualification of MPs does the royal discretion come alive.

Third, there is also a surprising view by an academic that the law should not impose term limits because the King has the right to determine how many terms a PM can serve. This is incredible. If the supreme Constitution imposes a term or time limit, then that is the law and is binding on all persons. The Yang di-Pertuan Agong himself is limited to a rotational term of five years, and that has always been respected.

Fourth, there is an opinion that the constitutional amendment will require the consent of the Con­ference of Rulers under Arti­cle 38(4), which says that no law directly affecting the privileges, position, honours or dignities of the Rulers shall be passed without the consent of the Conference of Rulers. Limiting the PM to a number of terms does not in any way directly affect the position of the Rulers. Article 38(4) and the 3R argument should not be invoked and misused like this.

Fifth, some office bearers of PAS have tried to add a racial-religious dimension by insisting that the constitutional amendment should ensure that only a Muslim can be the PM. This demand has no legal basis either in the 1957 or the 1963 Constitution. It will not go down well with our sister states of Sabah and Sarawak across the South China Sea, and will only worsen existing tensions between the peninsula and the Borneo states.

In summing up, it is recommen­ded that the Amendment Bill tabled in December 2019 should be emulated. As a first step, it should be confined to the federal PM only and need not be exten­ded to the states.

The Bill should limit the PM’s tenure to “two terms” and not to “10 years” as is being talked about. There is an important distinction between the two.

In our parliamentary system, the Dewan Rakyat has no fixed term. It can be dissolved earlier. Thus, if a second-term PM ceases to command the confidence of the Dewan Rakyat, then under Article 43(4), he has two options – submit his resignation or seek the King’s discretion to dissolve the House.

If the Monarch grants the request to dissolve, the term of parliament will end prematurely before its life of five years. This means that a second-term PM who lost the confidence may still be eligible to be reappointed after the next general election because his 10 years as PM are not up yet. To prevent this occurrence, the Bill should limit the PM’s term to “two parliamentary terms” and not to “10 years”.

Finally, I agree with Mohsin Abdullah that “prime ministers have wide powers, not just in Cabinet appointments but in control over government-linked companies and agencies. The checks and balances on the PM’s powers is more important than the length of his or her tenure”.

To promote answerability, accoun­tability and responsibility, the government must continue vigorously with broader reforms of our critical institutions like Parliament, the judiciary, the Malaysian Anti-Corruption Agen­cy and the Police.

Emeritus Professor Datuk Dr Shad Saleem Faruqi wishes all Muslim readers the joys and blessings of Hari Raya Aidilfitri.

The views expressed here are the writer’s own.