Appointment of Prime Minister

The Star 
Reflecting On The Law By Prof Shad Saleem Faruqi

When the House has no one commanding a majority, the Yang di-Pertuan Agong’s discretion can change the course of the nation’s history.

OF all the constitutional functions of the Yang di-Pertuan Agong, the most critical and controversial is the appointment of the Prime Minister.

In exercising this function, His Majesty is bound by Article 43(2)(a) which imposes two requirements: the PM designate must be a member of and have the confidence of the majority of the members of the Dewan Rakyat.

Membership: Unlike in Australia where the PM can belong either to the House of Representatives or the Senate, our PM must be an MP in the Dewan Rakyat.

It is conceivable, however, that in some extreme circumstances we may follow the Douglas Home precedent from the UK.

In the 60s, Sir Alec Douglas Home, a peer in the House of Lords, was elected leader of the Conservative Party.

When his party won the elections, he resigned his peerage and was appointed PM. Soon thereafter, a vacancy was created in the Commons which he contested and won.

In Selangor in the 80s, Datuk Abu Hassan was similarly appointed Mentri Besar of Selangor even before he was elected to the State Assembly.

Confidence: The wording in Article 43(2) that the PM must be a person who, in the opinion of the monarch, enjoys the confidence of the majority of the members of the Dewan Rakyat, creates the impression that the King has a wide, subjective discretion to anoint any MP with the premier’s post. The truth is quite different.

If there is a party or coalition enjoying an absolute majority in the Dewan Rakyat, the King has no choice but to appoint its leader as the PM.

Unlike the Constitutions of nine states with Malay Rulers where the basic law explicitly mentions that the MB must be a Malay/Muslim, the Federal Constitution imposes no requirement of race, religion or region.

However, there is a constitutional convention in favour of a Malay appointee. Conven­tions are not rules of law and this convention may face pressure in the future from a bumiputra aspirant from Sabah or Sarawak. We must remember that the two states together possess 56 parliamentary seats.

In the appointment of a PM, his support in the Dewan Negara is irrelevant. His party’s or coalition’s total popular vote at the elections does not count. It is his seats in the Dewan Rakyat that determine the King’s choice. Some factors that may trigger the King’s personal discretion are as follows:

Death or illness of the PM: If a vacancy arises in the office of the PM due to death or illness (as happened on the demise of Tun Razak in January 1976), the proper course for the monarch would be to wait for the ruling party or coalition to choose its new leader.

However, His Majesty may elevate the Deputy to the top post right away without waiting for the party leadership decision.

Lack of unanimity: If the ruling party is hopelessly divided on the choice of a leader, it is conceivable that the monarch may make a personal choice from the parliamentary party. Alternatively, as in Australia many times, the King may appoint a person from another party to hold the post temporarily till the majority party makes up its mind.

Caretaker government: Malaysia follows the British convention that the PM who advised dissolution, and his Cabinet, remains in office in a caretaker capacity without the need for a new swearing-in.

However, if during the dissolution, the PM dies or suffers serious illness, then Article 43(2) permits the Yang di-Pertuan Agong wide discretion to appoint any person who was a member of the last House of Representatives to helm the nation.

Hung Parliament: A hung Parliament is one in which no party or coalition commands an absolute majority in the House of Repre­sentatives.

The government in power can lose its majority in the House for a number of reasons. It may suffer deaths, resignations or defections causing its membership to dip below the 50% + 1 vote. Or, the general election may result in a stalemate and no party or grouping may emerge a clear victor.

In such a situation when the House has no one commanding a majority, the Yang di-Pertuan Agong’s discretion assumes a critical, central role and his decision can change the course of the nation’s history. What are his choices?

First, he cannot run the country on his own. That would be contrary to the overall spirit of the Constitution.

Second, His Majesty cannot order another general election after the just completed indecisive one.

The Constitution is clear in Article 55(4) that after a dissolution, the new parliament shall be summoned not later than 120 days. This means that after an election, a PM must be appointed, the House must meet, and a vote of confidence must be taken.

Third, if election results are indecisive and no majority government can be installed, the King can follow the “incumbency rule” and allow the caretaker PM to remain at the helm till Parliament is summoned within the 120 day rule.

Fourth, in some countries like Nepal the rule is that in hung Parliaments the party with the largest number of seats is given the first chance to form a coalition government.

The fifth choice for the monarch is to indulge in broad consultation with all parliamentary factions to see if any one of them can form a viable coalition government capable of enacting the budget and pushing through critical legislation.

In such a scenario it is not uncommon for the head of state to require the PM-designate to supply written lists or letters to prove his support and to subject himself to a vote of confidence within a stated period.

If no viable coalition can be cobbled together, the sixth choice for the monarch is to allow a minority government or a unity government to lead the nation till new elections are called.

> Shad Saleem Faruqi is Emeritus Professor of law at UiTM