Capping the PM’s tenure

THE government must be congratulated for agreeing to limit the prime minister’s tenure to 10 years as part of its institutional reform agenda. Understandably, the proposal has aroused responses from opponents and proponents.

The main arguments in favour of retaining the status quo are:

First, democratic elections already provide a safeguard. However, this view flies in the face of facts. In many countries around the world, PMs and presidents remain in power for decades – some by visionary and popular leadership; others by manipulating the electoral system.

Second, the amendment will violate the Yang di-Pertuan Agong’s discretionary power in Articles 40(2)(a) and 43(2)(a) to appoint a member of the Dewan Rakyat who, in his judgement, is likely to command the confidence of the majority of the members of the House.

I submit that the discretion to appoint a PM, though wide, is partly controlled by the Constitution.

> The PM must come from the Dewan Rakyat: Article 43(2)(a).

> Under Article 43(7), the PM must not be a citizen by naturalisation or registration.

> The Dewan Rakyat’s expression of no-confidence against a royal appointee is not an affront to the King’s powers. Under Article 43(4), if a PM ceases to command the confidence of the House, he and his Cabinet must either resign or advise an early dissolution.

> A term or time limit enacted by a constitutional amendment passed by a two-thirds majority under Article 159(3) is within the powers of Parliament. In many areas, time limits are known to the Constitution. For example, the Yang di Pertuan Agong himself is subject to a time limit of five years on the throne under Article 32(3).

Third, time limits are common in 36 presidential systems around the world but rare in 73 parliamentary governments. But in the interest of good governance, why should we hesitate to blaze new trails? In any case, time limits in parliamentary democracies are not entirely unknown. Three out of 73 parliamentary democracies – Thailand, Laos, Cuba – impose term or time limits. The 2017 Constitution of Thailand, for example, introduced a maximum eight-year term limit for the PM, which can be served consecutively or non-consecutively.

Fourth, a time limit on a charismatic leader who inspires, guides and achieves results through vision, empathy and competence may be bad for the nation. It may prevent long-term strategic policies or tempt those in power to adopt short-term populist measures in order to win re-election.

But one can convincingly argue that time or term limits are a necessary, democratic safeguard against authoritarian rule.

In country after country, when the same leader or coalition holds the reins of power decade after decade, democracy often transforms into “elected dictatorship”. A time or term limit will reduce concentration of power, corruption and nepotism.

Second, in a presidential system, the president has democratic legitimacy because his election involves a nationwide electorate. In contrast, in parliamentary democracies, a PM is not elected to office by the electorate. His election is to a single parliamentary seat from a single constituency. His claim to power derives from his royal appointment and from the (not always demonstrable) parliamentary support of the majority of MPs.

If the PM happens to lead a “minority government” in a “hung Parliament”, then the issue of political legitimacy for the enormous power he wields becomes even more contentious. It is necessary, therefore, to put a limit on the tenure of a PM.

There are several ways of doing it.

First, limit the PM to a maximum of two parliamentary terms, whether consecutive or otherwise.

Second, limit the PM to 10 years in total whether in consecutive or non-consecutive parliamentary terms.

Third, adopt a mixed system. Limit the PM to two consecutive terms but allow him to come back and be reappointed at the end of a successor’s term.

The choice between the three alternatives is a close one and requires thorough deliberation.

The two-term rule: This poses a number of challenges.

First, in our parliamentary system, the Dewan Rakyat has no fixed term. It can be dissolved earlier than five years by the King under Articles 43(4) and 55(3) on the advice of the PM.

If the PM is a second term PM, is capable and popular but loses his majority for any of the following reasons – death or disability of some government MPs; party- hopping as in the “Sheraton Move”; disqualification of some MPs for criminal conviction under Article 48; or their expulsion from the House under Article 63 – then this capable PM has no choice but to advise dissolution or resign under Article 43(4).

In either case, he loses any possibility of a comeback or re-appointment. Perhaps capping the office to a number of years spread over several parliamentary terms may be better.

Second, if a PM is nearing the end of his second term and if due to some grave conditions, an emergency under Article 150(1) is proclaimed, the PM may well be tempted to advise the King to prorogue, or suspend, Parliament. This will indirectly extend Parliament’s and the PM’s “second term”. This happened after the May 13 riots in 1969 when Parliament was suspended for about 22 months.

Third, if a PM has completed his second term, can he remain as caretaker or interim PM until a new leader is appointed?

The 10-year rule: Limiting the PM to a total of 10 years also poses some challenging dilemmas.

First, should the 10 years include the period when a PM is performing as a “caretaker PM” after a dissolution? This period can be quite lengthy – 120 days between a dissolution and the summoning of the new Parliament plus the period that the King takes to appoint the new PM.

Second, in circumstances of a “hung Parliament”, the caretaker PM may be asked to continue in an “interim” capacity that has no time limit. For example, following the 2010 federal elections, Belgium was governed by a caretaker administration led by Yves Leterme for over 19 months, from April 2010 to December 2011.

Whether the 10-year rule includes or excludes the period as caretaker or interim PM remains to be determined during the debate on this initiative.

Third, let’s take the case of a PM who has been in office – let’s say for nine years – and who has lost the confidence of the House. If the Monarch grants the PM’s request to dissolve Parliament prematurely, the PM who lost the ­confidence may still be eligible to be reappointed for one remaining year if he can, after the election, muster enough support. His 10 years as PM are not over yet!

A short-term appointment of one year may not be good for the nation. Should the proposed Constitution (Amendment) Bill, in limiting the PM’s term to 10 years, include a proviso that if on the King’s determination an MP’s eligibility to be appointed as PM is one year or less, then he shall not be eligible to be appointed again?

The mixed system: Limiting the PM to two consecutive terms but allowing him to come back as PM after the passage of another term poses the least legal problem. There is a danger, however, that a powerful PM may, after his two terms, arrange for a loyal follower or nominee to warm the seat till the ex-PM is eligible to reclaim the office.

Recommendations: It is recommended that the failed December 2019 Amendment Bill should be revived with some amendments.

The Bill should, for the time being, remain confined to the federal PM and not be extended to the states. This will avoid politically difficult questions about the appointment powers of state Rulers. After considering all the pros and cons, I recommend the 10-year rule.

Emeritus Prof Datuk Dr Shad Saleem Faruqi is principal research fellow at Universiti Malaya.

The views expressed here are his own.