I HAVE been asked by many to give my perspective on the controversial claim that Prime Minister Tan Sri Muhyiddin Yassin has allegedly lost the confidence of the House.
Indeed, in parliamentary democracies, governments have no fixed tenure and issues of confidence crop up from time to time to add turbulence to the political scene.
Loss of confidence: In Article 43(4), what amounts to a loss of “the confidence of the majority of the members of the House” is nowhere defined and is, by no means, a settled issue. Law and constitutional convention are both relevant and may clash.
Besides a clear-cut motion of “no confidence” on the floor of the House, there are many other possible ways of losing confidence, like a defeat of the Budget or a failure of the motion of thanks to the King after his address.
However, loss of public support or the defeat of the ruling coalition at a state election does not amount to a loss of parliamentary confidence. Under Article 43(4), what is relevant is “the confidence of the majority of the members of the House”.
After the 2009 Federal Court decision in the Nizar Jamaluddin case, evidence from outside the House like statutory declarations from the members can be taken into consideration by His Majesty in determining whether there is a loss of confidence. The King’s discretion is wide, though not uncontrolled. What is clear is that whatever the facts, the incumbent PM does not lose his position automatically. There must be a royal decision to accept his resignation or exceptionally to remove him from office.
Role of the King: What is the role of the Yang di-Pertuan Agong in a situation when there is an extra-parliamentary claim that the incumbent PM has lost the support of the House? The King is above politics and his role is to evaluate the situation impartially and to determine the claim’s credibility, reliability and sustainability.
If the Yang di-Pertuan Agong is satisfied that there is a credible claim or proof of loss of confidence, the Yang di-Pertuan Agong has a duty to look into the matter. He must allow the Leader of the Opposition or any other alternative leader to present his evidence within a reasonable time. The King is not required to act in haste and may resort to consultations and seeking of counsel.
If due to illness, absence from the Federation or any other cause the King is unable to exercise his functions for 15 or more days, the Timbalan Yang di-Pertuan Agong may assume these powers after 15 days or earlier if “satisfied that it is necessary or expedient to exercise such functions”: Article 33(1).
The King may ask the PM to convene the House to obtain a vote of confidence. If the PM refuses, the Yang di-Pertuan Agong can then make his own judgement or decision about who commands the confidence of the House by taking note of evidence obtained outside the House as the Sultan of Perak did in Perak in 2019. This course of action was determined to be constitutional by the 2019 ruling of the Federal Court in the case of then Perak mentri besar Datuk Nizar Jamaluddin.
If the King is satisfied that parliamentary support for the PM is still subsisting, the matter ends there. However, if the Yang di-Pertuan Agong is of the judgement that it has been forfeited, he can require the PM to observe the PM’s duty under Article 43(4) to either advise dissolution or resign.
If the PM advises dissolution, the King has the discretion under Article 40(2)(b) to accept or reject the advice to dissolve. If the King accepts the advice, then elections must be called within 60 days of the dissolution: Article 55(4). In the meantime, the PM remains at the helm as a caretaker.
If the King rejects the advice to dissolve, he can demand that the PM resign. If the PM refuses to resign, the PM can be removed in accordance with the 2009 Perak ruling. The King can then appoint someone else who in his judgement is likely to command the confidence of the House.
Dissolution: In cases where there is uncertainty about who commands confidence, can the King dissolve the House on his own initiative to call a general election?
Some lawyers give two arguments to support royal discretion in this area. First, that under Article 40(2)(b) the King has an undoubted discretion in relation to “the withholding of consent to a request for the dissolution of parliament”. With all due respect, the discretion conferred by the Constitution is to refuse the PM’s advice, not to initiate the process himself. There is a significant difference between “dissolving on his own initiative” and “withholding consent to a request” from the Prime Minister. In a constitutional monarchy, the King should not dissolve a House on his own initiative.
A second argument is that Article 55(2) explicitly provides that “the Yang di-Pertuan Agong may prorogue or dissolve Parliament”. With all due respect, Article 55(2) should not be interpreted literally or in isolation. The powers of Article 55(2) to dissolve or prorogue are not autonomous, discretionary powers but are subject to Article 40(1) and 40(1A). These clauses command that “in the exercise of his functions under this Constitution or federal law, the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet”.
We are a constitutional and not an absolutist monarchy and most of the powers of the King must be read in the light of Article 40(1)’s overarching requirement to act on advice.
SHAD SALEEM FARUQI
Note: Constitutional expert Emeritus Prof Datuk Dr Shad Saleem Faruqi writes the fortnightly ‘Reflecting on the Law’ column in The Star.