LoyarBurok by Tommy Thomas
as published in LoyarBurok on 10 Apr 2013
Truth is the first casualty in the Barisan controlled mass media in the final run-up to the 13th General Elections.
Among the falsehoods widely disseminated in the mainstream media is
firstly, the extent and scope of the discretion of the Yang di-Pertuan
Agong in inviting a person to become the Prime Minister in order to form
the next federal government, and secondly the allegation that Barisan
is regarded as “one party” while Pakatan is considered “a coalition” is
relevant in computing the level of support in the Dewan Rakyat for the
purpose of appointing a Prime Minister.
We
have to turn to the Federal Constitution for the answers. Article 40(2)
provides that “the Yang di-Pertuan Agong may act in his discretion in
the performance of the following functions, that is to say:-
(a) the appointment of a Prime Minister”.
The
words “in his discretion” may indicate that the Agong has a wide
discretion. However, Article 43 (2) (a) substantially narrows such
discretion by stating that the Agong shall appoint as Prime Minister “a
member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members
of that House”. Hence, within the terms of the Constitution itself, the
King cannot act with total freedom. Instead, the Prime Minister so
appointed must be:
(i) a member of the Dewan Rakyat (as opposed to being a Senator); and(ii) must be able to command the confidence of the majority, that is, at least 112 Members of Parliament out of a total membership of 222.
Articles
40(2) and 43(2)(a) merely set out in express terms the constitutional
convention which has existed for at least 2 centuries of the
Westminister type of parliamentary government which Malaysia has. We
have a government, elected once in 5 years, which is responsible to
Parliament, that is, a government that is accountable to the elected
branch of the Legislature. Because that is a fundamental pillar of
parliamentary democracy, a person can only be the Prime Minister if he
can initially command – and subsequently retain for the entire
parliamentary term of 5 years – the confidence of the majority of the
members of the Dewan Rakyat.
It would be noted that the terms “party” and “coalition of parties”
are not referred to in Article 43(2)(b). That represents the
constitutional position. Under the constitution, how a Prime Minister
achieves a majority in the Dewan Rakyat is not stated. The Constitution,
intended to serve as the nation’s supreme law for posterity, is
deliberately drafted in wide, broad and general terms, and is also to be
interpreted in a liberal and generous fashion. What is fundamental is
the ability of a Prime Minister to control the majority of the Dewan
Rakyat so that he has a stable government. The task facing the Agong, as
constitutional monarch, is clear when appointing a Prime Minister after
general elections (as opposed to the death or retirement of a Prime
Minister). The King invites the Leader of the coalition of parties —
either Najib Razak or Anwar Ibrahim — who enjoys the support of 112 or
more members of the Dewan Rakyat. It is as simple and plain as that. I
have set out the position as discussed by constitutional scholars in
Malaysia, Britain, India and Australia in the Appendix that follows.
The
political reality is the dominance of parties in the modern democratic
system, and more significantly, the use of the party whip to ensure
discipline among party members. This means that parties (or coalitions
of parties) are the dominant actors in the political realm. They choose
the candidates, fund them, and ensure that they run on the party ticket
supporting the party manifesto. The electorate invariably votes for the
party, rather than the candidate, although there are always charismatic
candidates who would personally receive some votes, rather than through
their party. After election, the successful Members of Parliament accept
the party whip and vote with their party throughout the life of that
Parliament. The party itself elects its leader. Thus, for all practical
purposes, the leader of the political party that has won the general
elections will be invited by the Monarch to form the next government;
for example, Tony Blair leading the Labour Party to victory in 1998, and
being invited by Queen Elizabeth to become Prime Minister. In such
circumstances, the Monarch has absolutely no choice in the matter.
In
Malaysia, no single party (not even UMNO) has been able to command the
majority of the members of the Dewan Rakyat. Instead, the first
government of independent Malaya which took power on 31st August 1957
was the Alliance coalition comprising UMNO, MCA and MIC. In 1972, the
Alliance expanded into the Barisan Nasional coalition which now consists
of 14 different political parties. All the 6 Prime Ministers of
Malaysia headed coalitions, and that trend will continue in the
foreseeable future.
The
disinformation circulating in the Barisan mass media is that there is a
major distinction between the Barisan and Pakatan coalitions which the
King should take into account when appointing a Prime Minister after the
13th General Elections. According to this argument, the Barisan has
been registered as a political party by the Registrar of Societies
(“ROS”) under the Societies Act, 1966. As a result, all the candidates
for the 222 parliamentary seats contested by Barisan will stand on a
common Barisan ticket. In contrast, Pakatan candidates will contest as
PAS, Keadilan or DAP candidates rather than as Pakatan candidates. This
is a wholly disingenuous argument. What is never disclosed is that the
ROS is a bureaucrat totally subservient to the Barisan government. He
never acts independently, fairly or correctly. Just one example of his
bias would be sufficient : it should be recalled when the High Court
declared UMNO illegal in 1986, the ROS immediately approved Prime
Minister Mahathir’s application for the formation of UMNO Baru while
rejecting the application by former Prime Ministers Tuanku Abdul Rahman
and Hussein Onn for the registration of their own political party.
Therefore it is not surprising to learn that the ROS rejected Pakatan’s
application to register itself as a political party while approving
Barisan’s similar application. Thus, Pakatan is prevented from
contesting as a single party.
In
such circumstances, by the abuse of the law, Pakatan is not treated the
same way by Barisan. Surely that cannot objectively be a relevant
factor in the exercise by the Agong of His Majesty’s discretion under
Article 43(2)(b) as to who is likely to command the confidence of the
majority of the Dewan Rakyat.
What
stands out in this general elections is a close contest which offers a
simple, straight-forward choice between Barisan and Pakatan. Likewise,
it is a simple, straight-forward choice between Najib Razak and Anwar
Ibrahim as Prime Minister. Indeed, in the presidential style campaign
adopted by Najib, his personality is very much emphasized, rather than
that of UMNO or Barisan. The 13.3 million voters are also aware that
they have this simple, straight-forward choice in the ballot box, and
are being invited to vote along such lines in two cornered contests in
nearly all the seats.
Against
this background, it is absolutely flawed to argue that Najib can take
into account all the Barisan Members of Parliament when computing his
support in the Dewan Rakyat, but Anwar can only take into account the
Keadilan Parliamentarians (but not the others who were elected under
DAP, PAS or other Pakatan parties). This myth must be demolished.
Like
all Malaysians, the Agong and his palace advisers will be closely
following the campaign, the elections and the results. The Agong is
entitled constitutionally to exercise his judgment quietly, calmly,
freely, independently and impartially. No pressure or threat must be
used to influence the Agong. There must be no repeat of the shameful
episode in Sabah in April 1985 which resulted in the grab for power by
Tun Mustapha and Harris Salleh which became the subject of litigation in
Tun Mustapha Harun v Tun Mohd. Adnan Robert and Datuk Joseph Pairin Kitigan [1986] 2 MLJ 420.
Most
critically, the Agong is entitled to receive independent legal advice,
that is, independent of Barisan and Pakatan. This means that the
Attorney General’s Chambers, which has been in the forefront of giving
partisan legal advice to the Barisan government for years, and the
Attorney-General who is personally beholden to Najib Razak and who has
prosecuted Anwar Ibrahim since 1998, should not also advise the Agong in
the monarch’s most important constitutional duty, the appointment of
the next Prime Minister. The Agong should look elsewhere for independent
legal advice, if that becomes necessary.
Tommy Thomas
10th April 2013
APPENDIX
(i) MALAYSIA
Since
attaining independence in 1957 there has not been any problem regarding
the appointment of the Prime Minister. This is because, first, the same
party has remained in power, having always won the general election by a
sufficiently big majority. Secondly, when the party chooses its leader
it is always with the understanding that if the party comes to power, he
would be the Prime Minister. So, at the Federal level, the role so far
played by the Yang di-Pertuan Agong in appointing the Prime Minister,
has been no more than giving constitutional endorsement to the decision
of the party in power. ‘Party’ here must be read to mean the ‘major party in the governing coalition’.
(Page 80)
Secondly,
the existence of ‘close ties’ between the Sultan and the nominee is not
relevant. It is not a factor to be considered. The only consideration
is whether he is likely to command the confidence of the majority of the
members of the Assembly.
(Page 82)
Y.A.M. Raja Azlan Shah
The Role of Constitutional Rulers in Malaysia
published in
The Constitution of Malaysia – Further Perspectives And Developments
edited by F.A. Trindade & H.P. Lee [1986]
This
subjective judgment may appear to give freedom of choice, yet by
convention the monarch is practically bound to appoint only that person
who is leader of the political party which has the largest number of
seats in the Lower House. No doubt some other person could instead
be appointed, since there is no way that the Agong’s own personal
satisfaction in this matter could be challenged. Yet, he would not do
so because he is aware that such a person would be able to stay on in
office only until the next vote of no confidence is passed against him
in the House. This would illustrate the view that conventions are still important for written constitutions as well.
(Pages 48 & 49)
Azmi Abdul Khalid
“ROLE OF THE MONARCH”
published in
Reflections on the Malaysian Constitution,
Aliran [1987]
(ii) Britain
…
in reality the Queen’s prerogative is governed by the fundamental
constitutional convention, grounded in political necessity, that she
must appoint as Prime Minister the man or woman who can form a
government which will have the confidence of the House of Commons.
Normally this convention clearly indicates the party leader who, having
majority support in the House, has an indisputable claim to be
appointed.
A
general election that fails to give an overall majority to one party
may produce a result allowing of either a single-party minority
government or a government formed from any of various combinations of
parties under one or other of a number of party leaders.
…
What should be the role of the sovereign in the choice of a Prime
Minister in such circumstances ? The ‘golden rule’, as Robert Hazell
expressed it, ‘is not to draw the monarchy into controversy or political
negotiations’
By Colin Turpin & Adam TomkinsBritish Government and the Constitution7th Ed [2011)(Page 381)
But
the most dramatic and significant part of the electoral outcome came in
the five days of inter-party negotiations leading to the formation of
the Coalition Government. Over the course of five long days, Friday May
7 to Tuesday May 11, 2010, the political parties entered into a
multi-faceted process of negotiations, some formal, many informal, with
pressures exerted upon the leading players from within their parties and
without. A significant feature throughout this period was the intense
confidentiality surrounding the communications and meetings between
participants.
A
figure of 326 parliamentary seats was needed for an overall majority,
leaving the largest party, the Conservatives, 20 short. After the
Conservative Party combined with the Liberal Democrats, their voting
strength in the House of Commons is 363 compared to 287 all others.
Robert Blackburn
The 2010 General Election Outcome andFormation of the Conservative —Liberal Democrat Coalition Government
[2011] PL 30
(iii) INDIA
If two or more parties enter into a coalition and thus secure a majority in the Lok Sabha, then again
the President would have no option but to induct the acknowledged
leader of the coalition into the Prime Minister’s office. In 1977, the
Janata Party, a combination of several parties, secured a majority. The
leader of Janata Party Morarji Desai was appointed Prime Minister.
(Page 186)M.P. JainIndian Constitutional LawVol. 1 — 6th Ed [2010]
But
if in a general election the party in power is defeated, and no party
with a clear majority is returned to the House of the People, then,
notwithstanding that the Ministry continues in office till a new
Ministry is sworn in, the President has a real discretion to
ascertain for himself, first, which party or combination of parties can
form a stable Government, and secondly, which of the persons contending
for leadership is accepted by such party or parties as their leader.
(Pages 2043 & 2044)
Article
75 (1) provides that “the Prime Minister shall be appointed by the
President, and the other Ministers shall be appointed by the President
on the advice of the Prime Minister”. Ordinarily, by convention, the
acknowledged leader of a political party, or a group of parties, which
commands the support of a majority of the House of the People must be
appointed Prime Minister.
(Pages 2046 & 2047)
H.M. Seervai
Constitutional Law of India
Vol. 2 — 4th Ed. [1996]
(iv) AUSTRALIA
The
Westminster type of parliamentary democracy relies for its working on
the presence of a head of state who acts as a kind of umpire in the
electoral game. The Governor-General’s role in constituting the
government (by commissioning a Prime Minister) has already been noted. Often, the choice is clear, because one party or a coalition of parties has won a clear majority of seats at the elections. But
from time to time there is no clear winner; then the Governor-General
faces the difficult task of determining which party leader (or other
member of Parliament) is most likely to secure the confidence of
Parliament. This duty can be discharged properly only by consulting with
all party leaders and independent members in good faith, and by acting
in an impartial manner. A party does not secure an overall majority
may claim majority support in the lower house by concluding agreements
with independents and minor parties. This is what happened after the
August 2010 General Election when Ms Julia Gillard secured the agreement
of three independents and one Green Party member to become Prime
Minister although her Labor Party failed to gain a majority.
Suri Ratnapala & Jonathan Crowe
Australian Constitutional Law – Foundations and Theory
3rd Ed. [2012]
(Page 55)
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