What is the King’s Constitutional role in post-election government formation in Malaysia?

AS Malaysians headed to vote in the country's 15th General Election on Nov 19, 2022, many people predicted there would not be a clear winner to easily form the new government. Naturally then the question arises: What happens Constitutionally in such a situation? The role of the Yang Di-Pertuan Agong becomes important, as we have seen over the last few years in Malaysia, in cases of appointments and resignations of prime ministers.

The role of the King in these matters has never been under greater scrutiny. Malaysians now live in an age of political fluidity and are increasingly aware of the need for Constitutional mechanisms to constrain politics and ensure a democratic polity. Many will hope for stability under solidly supported leadership, and they expect their head of state to play an important role. These issues, we believe, are a sign of a maturing democracy rather than a cause for concern.

And of course, the situation of a hung Parliament is by no means uncommon. It has featured in parliamentary democracies the world over. So what is the position when Parliament is hung following a general election in this country?

Hung parliament or not, the starting point is that the King has the obligation – under Article 43(2) of Malaysia’s Federal Constitution – to appoint as prime minister the member of the Dewan Rakyat who, in his judgment, is likely to command the confidence of the majority of the Dewan’s members. This obligation is to be read with Article 40(2), which states that the King may act at his discretion in appointing a prime minister.

Three immediate questions

What do these provisions mean? There is clearly a lot more to the words “discretion”, “judgement”, and “confidence” than meets the eye. But the implications of this language can be elucidated by three questions.

First, does “discretion” mean that the King has absolute freedom to choose and appoint a PM? Second, how should the King exercise the “judgement” required of him? Finally, what is the evidence of the “confidence” that is being judged?

To answer these questions, it is important to appreciate several broader principles. The first is that the rule of law (kedaulatan undang-undang) is central to a functioning Constitutional democracy – thus, everyone is governed by the law and all power has legal limits.

The second related point is that while the Constitution creates political institutions and endows them with certain powers, it also spells out, or implies, the limits of those powers.

Thirdly, the Malaysian Constitutional order is built upon the foundations of a Westminster parliamentary democracy, and in such a system, certain conventions, such as those governing the appointment of a prime minister, have been developed to ensure representative government within a system where the head of state exercises important but limited powers.

In light of this, we regard statements that the King has “absolute”, “unlimited”, or “unfettered” discretion to be highly misleading. There is no such thing as absolute discretion. Indeed, like every discretionary power, the King’s discretion is limited by the very words that confer it. It is also limited by the imperatives of Constitutional monarchy and representative government which inform the interpretation of the text.

The King’s power in the matter of appointing a prime minister after a general election is discretionary because, in this instance, he cannot act on the advice of the government. The government remains to be formed, and the King can only act on the advice of a government with a majority. But it is important to understand that this discretion is not a discretion to appoint the person who seems to best merit appointment; it is a judgment about who commands the confidence of a majority – an entirely different question.

It is also important to understand that, since the matter is not one of the King’s own political preference, but one of judgement of facts, the Constitution also insulates the monarchy from being turned into a political football.

This imperative of ensuring the office of the Yang Di-Pertuan Agong remains above politics also means that when it comes to the formation of government, the King's role to appoint (as opposed to the more proactive role of “determining”) is secondary to the political process among elected political elites to determine the matter of support. It is this process that results in the fact of the confidence of a majority that enables the King to exercise his power of appointment.

Of course, in making this judgment, the King is entitled, indeed obliged, to rely on evidence. But what evidence counts in these circumstances? The Constitution does not tell us the answer, but an answer can be derived from Constitutional logic.

The King cannot, in this case, rely on support expressed on the floor of the House of Representatives (Dewan Rakyat), as the new House has not yet met. But he is entitled to consider other matters.

First, there are public expressions of support by party leaders, who speak on behalf of their party’s parliamentary membership. It has also been common in Malaysia (although not, we notice, elsewhere) for Members of Parliament to issue statutory declarations or letters of support. These are not wholly reliable, as a member may express support for one prime-ministerial candidate one day and another the next.

Thirdly, a head of state make take his own soundings among political leaders.

In the last two cases of prime-ministerial appointment, the King also went to the extent of interviewing all MPs and party leaders before arriving at his judgement on confidence.

This – we have checked – has never been done in any other parliamentary system to the best of our knowledge, and we suggest could only be appropriate where the other evidence listed above has proved to be unreliable.

In essence, a head of state should be entitled to rely on the veracity and soundness of judgement of party leaders in making his assessment. In a system of parliamentary democracy, political choices and decisions are driven by parties, as opposed to individual MPs.

Protecting the democratic mandate

Under Westminster conventions, the issue of determining confidence is – as we suggested above – a political process for politicians to resolve among themselves. Notwithstanding public fatigue with power battles, there are persuasive reasons to allow such a political process to take centre stage.

We have highlighted the need to avoid pulling the King into political controversy. Of late, there have been attempts by several politicians to pass the buck, so to speak, to the King to determine who becomes prime minister, as a means of indirectly resolving leadership and power struggles within their own coalition. This is a misconception of the King’s role.

If an appointed candidate is later subjected to (and fails) a confidence vote in Parliament, this might suggest a serious misjudgement on the part of the head of state and it would undermine public confidence in the institution.

However, we suggest that if party leaders overestimate their support, and as a result, for example, lose a parliamentary confidence vote they indicated they would win, then the embarrassment should be that of the party leaders in question, not that of the head of state.

Based on the principles and issues considered above, the determination of the issue of confidence must be carried out in light of Constitutional conventions.

DR DIAN AH SHAH & PROF ANDREW HARDING

Centre for Asian Legal Studies

National University of Singapore

Prof Harding is a leading scholar in comparative Constitutional law and Asian legal studies. He wrote 'The Constitution of Malaysia' for Hart Publishing's series on Constitutional Systems of the World (2nd edition, May 19, 2022). Dian was previously a Research Fellow of the Centre for Asian Legal Studies and a senior lecturer at Universiti Malaysia’s law faculty where she taught Constitutional law. She is the author of Constitutions, Religion and Politics in Asia: Indonesia, Malaysia and Sri Lanka (Cambridge University Press 2017).