The Prime Minister has declared that the anticipated power transition to Datuk Seri Najib Razak will occur as planned. The media has reported this and other news items pertaining to the subject as a transition of Prime Ministers. If this is in fact what the Prime Minister has proclaimed, and it is not apparent whether the Prime Minister had limited his remarks to the transition of the UMNO presidency, then it calls for a re-examination of the way in which governments are formed under the Federal Constitution.
For practical purposes it can be said that Parliament is dissolved when a general election is called. The government of the day, formed by the majority of the member of the Dewan Rakyat, comes to an end when this occurs, at least in theory. A caretaker government is charged with the responsibility of governing the nation in the short period before a new government is formed. This occurs when the Yang di-Pertuan Agong appoints a member of parliament to be the Prime Minister. The person His Majesty appoints is the person who in His judgment is the person commanding the confidence of the majority of the members of parliament. The appointment is a matter left entirely to the discretion of His Majesty with one condition: the appointee must be the person commanding the confidence of the majority of the members.
In the usual course, this is a matter of numbers. That person who can say that he or she commands the confidence of the majority should become the Prime Minister. This is straightforward where every member exercises his or her own judgment in coming to a choice and expresses that choice independently.
The situation is less clear where the right to choose is ceded over to a political party, or more specifically the leadership of that party or the coalition to which it exists. It may be that the party’s choice of candidate is not the choice of some or members or even a majority of them. The question then arises whether the choice of the leadership can be taken as the choice of the members of parliament from the party or coalition.
A purist perspective would lend against such a conclusion. The choice of the individual member of parliament of whom it is that he or she has confidence in is enshrined under the Constitution. A more practical approach would inevitably favour the conclusion that the party’s choice would prevail. This could however be made the basis of a plea to His Majesty. Though we have yet to see this happen on the Federal stage, we saw such a scenario unfold in Trengganu last year. There the Regent took the position that the party’s choice, predicated as it was on the majority of assemblypersons being made up of members of the party, was not decisive in view of personal preference favouring another candidate. This incident could be viewed as having some persuasive force.
The situation is not radically different where a Prime Minister resigns. As the Constitution does not cater to such a situation specifically, it stands to reason that reference must be made to the same provisions concerning the appointment of a Prime Minister.
These provisions provide for the resignation of a Prime Minister where upon his request for the dissolution of Parliament, His Majesty declines to do so. In that case, the Prime Minister must tender the resignation of the Cabinet (of which he is a member). I would think that though the Constitution is silent, the Prime Minister is permitted to resign, even where a no-confidence scenario is not in existence. To do so, he would however have to tender the resignation of his cabinet.
The more interesting aspect of this situation centres on what it is His Majesty can or should do. Save for the no-confidence scenario, the power to dissolve Parliament is one to be exercised on advice. It could be argued that without such advice, His Majesty cannot dissolve Parliament and as such is left with only the option of appointing a new Prime Minister who in turn will form his cabinet.
However, if one were to take the events of Perak as definitive, in particular the discretion of the Sultan to determine whether confidence exists, it may be open to His Majesty to take the position that by the incumbent Prime Minister resigning for reasons that have nothing to do with his incapacity, it could be said that he no longer commands the confidence of the majority. That being the case, His Majesty has the option of dissolving Parliament.
I do not think that is the correct way of looking at things. However, after Perak, it is difficult to say what is right anymore.
Leaving aside the conundrum outlined above, there remains the final dimension of this discussion: the absolute discretion of His Majesty to appoint as Prime Minister the person whom in His judgment commands the confidence of the majority. This need not necessarily be the person who replaces the Prime Minister as the President of UMNO.
That this has occurred all this while need not make it a necessity. A convention within the Barisan Nasional and the coalition’s dictates cannot bind His Majesty especially where there is reason to ask whether the proposed candidate does in fact command the requisite confidence. Imagine if personal preferences were marshaled in a way that lent to a different outcome in His Majesty’s mind. If that were to occur, there would be little room left for UMNO to maneuver, especially after the way it has carried on about the inviolability of the royal discretion. Precedent has a nasty way of biting back.
Malik Imtiaz Sarwar
For practical purposes it can be said that Parliament is dissolved when a general election is called. The government of the day, formed by the majority of the member of the Dewan Rakyat, comes to an end when this occurs, at least in theory. A caretaker government is charged with the responsibility of governing the nation in the short period before a new government is formed. This occurs when the Yang di-Pertuan Agong appoints a member of parliament to be the Prime Minister. The person His Majesty appoints is the person who in His judgment is the person commanding the confidence of the majority of the members of parliament. The appointment is a matter left entirely to the discretion of His Majesty with one condition: the appointee must be the person commanding the confidence of the majority of the members.
In the usual course, this is a matter of numbers. That person who can say that he or she commands the confidence of the majority should become the Prime Minister. This is straightforward where every member exercises his or her own judgment in coming to a choice and expresses that choice independently.
The situation is less clear where the right to choose is ceded over to a political party, or more specifically the leadership of that party or the coalition to which it exists. It may be that the party’s choice of candidate is not the choice of some or members or even a majority of them. The question then arises whether the choice of the leadership can be taken as the choice of the members of parliament from the party or coalition.
A purist perspective would lend against such a conclusion. The choice of the individual member of parliament of whom it is that he or she has confidence in is enshrined under the Constitution. A more practical approach would inevitably favour the conclusion that the party’s choice would prevail. This could however be made the basis of a plea to His Majesty. Though we have yet to see this happen on the Federal stage, we saw such a scenario unfold in Trengganu last year. There the Regent took the position that the party’s choice, predicated as it was on the majority of assemblypersons being made up of members of the party, was not decisive in view of personal preference favouring another candidate. This incident could be viewed as having some persuasive force.
The situation is not radically different where a Prime Minister resigns. As the Constitution does not cater to such a situation specifically, it stands to reason that reference must be made to the same provisions concerning the appointment of a Prime Minister.
These provisions provide for the resignation of a Prime Minister where upon his request for the dissolution of Parliament, His Majesty declines to do so. In that case, the Prime Minister must tender the resignation of the Cabinet (of which he is a member). I would think that though the Constitution is silent, the Prime Minister is permitted to resign, even where a no-confidence scenario is not in existence. To do so, he would however have to tender the resignation of his cabinet.
The more interesting aspect of this situation centres on what it is His Majesty can or should do. Save for the no-confidence scenario, the power to dissolve Parliament is one to be exercised on advice. It could be argued that without such advice, His Majesty cannot dissolve Parliament and as such is left with only the option of appointing a new Prime Minister who in turn will form his cabinet.
However, if one were to take the events of Perak as definitive, in particular the discretion of the Sultan to determine whether confidence exists, it may be open to His Majesty to take the position that by the incumbent Prime Minister resigning for reasons that have nothing to do with his incapacity, it could be said that he no longer commands the confidence of the majority. That being the case, His Majesty has the option of dissolving Parliament.
I do not think that is the correct way of looking at things. However, after Perak, it is difficult to say what is right anymore.
Leaving aside the conundrum outlined above, there remains the final dimension of this discussion: the absolute discretion of His Majesty to appoint as Prime Minister the person whom in His judgment commands the confidence of the majority. This need not necessarily be the person who replaces the Prime Minister as the President of UMNO.
That this has occurred all this while need not make it a necessity. A convention within the Barisan Nasional and the coalition’s dictates cannot bind His Majesty especially where there is reason to ask whether the proposed candidate does in fact command the requisite confidence. Imagine if personal preferences were marshaled in a way that lent to a different outcome in His Majesty’s mind. If that were to occur, there would be little room left for UMNO to maneuver, especially after the way it has carried on about the inviolability of the royal discretion. Precedent has a nasty way of biting back.
(Malay Mail; 3rd March 2009)
Malik Imtiaz Sarwar
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