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For over 50 years, the Yang di-Pertuan Agong never had a free hand in the choice of Prime Minister. Since 1957, the Alliance coalition and after 1972 the Barisan Nasional coalition always enjoyed commanding majorities in the Dewan Rakyat and 5 of its leaders became Prime Ministers. This practice continued in March 2008 when the Yang di-Pertuan Agong invited Abdullah Badawi to form his second government. However, one month after the historic general elections it is appropriate to consider the viability of Abdullah’s government.

Thus having regard to the political uncertainties surrounding Abdullah’s leadership of UMNO (which automatically results in the leadership of Barisan Nasional and the Prime Ministership), the challenge by Tengku Razaleigh, the constant public attacks by former UMNO leader and former Prime Minister Dr Mahathir, the narrow margin by Malaysian standards of Barisan’s victory with the opposition needing just another 30 seats to form a government, the possibility of defection by Barisan Members of Parliament (which is not an illegal practice in Malaysia), the political acumen of Anwar Ibrahim and his right to return to Parliament have led to much public speculation that a motion of no confidence may be tabled against Prime Minister Abdullah after Parliament convenes on 28th April 2008. As Malaysia enters uncharted waters, it is vital that the constitutional position becomes clear, particularly when some quarters have expressed fear as to whether our system of government can cope with such political instability. No constitutional issue arises if a confidence motion is not tabled or is defeated.

What is the constitutional position if the motion of no confidence is carried. The inquiry begins with the status of the Yang di-Pertuan Agong under the Federal Constitution. Article 32 (1) provides that the Yang di-Pertuan Agong shall be the Supreme Head of the Federation, shall take precedence over all persons in Malaysia and shall not be liable to any proceedings whatsoever except in the Special Court. The executive authority of the Federation vests in the Yang di-Pertuan Agong pursuant to Article 39 of the Federal Constitution and he is the Supreme Commander of the nation’s armed forces under Article 41. That the Yang di-Pertuan Agong is a Constitutional Monarch is enshrined first, in Article 40(1) which provides that in the exercise of his functions under the Constitution or federal law, the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet, and secondly in Article 40 (1A) that in all such cases the Yang di-Pertuan Agong shall accept and act in accordance with such advice. In this category of decisions, which form the vast majority, the actual decision maker is the Prime Minister, Cabinet or other person who takes a decision in the name of the King. In contrast, Article 40 (2) states 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;

(b) the withholding of consent to a request for the dissolution of Parliament;

(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honour and dignity of Their Royal Highnesses, and any action at such a meeting,

and in any other case mentioned in this Constitution.”

Article 40 (2) accordingly specifies 3 types of decisions, and a fourth general category, which are personal to the Yang di-Pertuan Agong. They represent the constitutional convention of the royal prerogatives enjoyed by the British Monarch or the personal prerogatives of the Governor Generals of Canada and Australia and also described in those countries as “reserve powers”.

Article 43 of the Constitution pertains to the Cabinet. Article 43 (2)(a) provides that the Yang di-Pertuan 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”, and who shall then advice the Agong on the appointment of the members of his Cabinet. Article 43(3) states that the Cabinet shall be collectively responsible to Parliament, thereby recognizing that Malaysia has a system of responsible government, that is, an Executive that is accountable to the Legislature. Article 43(4) states that if the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.

On a plain and ordinary meaning of Articles 32, 39, 40 and 43, the following propositions of constitutional law can be made relating to the appointment by the Yang di-Pertuan Agong of a Prime Minister:-

(i) the Yang di-Pertuan Agong is the sole and exclusive appointing authority of the Prime Minister;

(ii) in the exercise of that solemn duty, the Yang di-Pertuan Agong is not required to take the advice of the outgoing Prime Minister or his Cabinet; neither is the Conference of Rulers (established under Article 38) involved in the decision-making process;

(iii) the discretion of the Yang di-Pertuan Agong is not absolute or without limits;

(iv) the Prime Minister must be a member of the House of Representatives (Dewan Rakyat); he cannot be a Senator. Thus, he must be an elected member of Parliament, and not an appointed member;

(v) Article 43 (7) prohibits a person who is a citizen by naturalization or by registration to be appointed Prime Minister;

(vi) there is no racial, religious or gender qualification: thus the office of the Prime Minister is not confined to a Malay/Muslim man.

(vii) there is no requirement for the candidate to be a member of a political party or coalition of parties, let alone be its elected or undisputed leader;

(viii) the candidate must be “likely to command the confidence of the majority of” the 222 members of the Dewan Rakyat, that is, at least 112 members of the lower house must support him;

(ix) the “judgment” (which connotes a more subjective element than “opinion”) that a candidate enjoys such majority support in the Dewan Rakyat belongs solely and exclusively to the Yang di-Pertuan Agong;

(x) in making his decision the Yang di-Pertuan Agong can take into account political reality as it appears to him, political considerations are therefore relevant;

(xi) once the Yang di-Pertuan Agong exercises his independent judgment or personal discretion and appoints a person as Prime Minister, the Yang di-Pertuan Agong is functious officio (that is, he cannot immediately dismiss that person and appoint another person), and the Prime Minister upon such appointment must be given a reasonable time to govern and to test his popularity by a confidence motion in the Dewan Rakyat;

(xii) if the new Prime Minister after appointment is defeated on a no confidence motion, he and his Cabinet shall tender their resignation; the outgoing Prime Minister can also request the Yang di-Pertuan Agong to dissolve Parliament and hold fresh elections;

(xiii) if such a request is made, the Yang di-Pertuan Agong can decline, and can instead exercise his judgment under Article 43 (2) (a) to invite another person who in his judgment can form a administration which will command majority support in the Dewan Rakyat;

(xiv) only if the Yang di-Pertuan Agong is satisfied that no person can form a stable administration that would last for a reasonable period of time without being defeated on a no confidence motion should Parliament be dissolved; and

(xv) hence, the dissolution of Parliament and the calling of elections is a remedy of last resort, and should be avoided until and unless all other means of forming a government, including attempting to establish an all-party or national government fail. In reaching his decision, the King can take into consideration the length of the remaining Parliamentary term: everything being equal, elections should be avoided if they have just been held and the will of the electorate made sufficiently clear.

A review of the relevant Malaysian Constitutional provisions therefore indicate that if a motion of no confidence is carried in the Malaysian Parliament in the coming months, Prime Minister Abdullah Badawi and his Cabinet must tender their resignation pursuant to Article 43 (4) of the Federal Constitution. Abdullah Badawi may at the time of his resignation request the Yang di-Pertuan Agong to dissolve Parliament. If such a request is made, the Yang di-Pertuan Agong would be perfectly entitled to decline, particularly since the country only went to polls in March 2008, and the will of the electorate was expressed thereat. The Yang di-Pertuan Agong can instead summon a person who, in the King’s judgment, can survive a motion of no confidence and undertake the task of forming a new administration. The only requirement is that such a person should enjoy the support of the majority of the Dewan Rakyat, whether he is the leader of any party or indeed member of any political party is not the constitutional test, even if political reality demands it. Under established usage of British constitutionalism (which in the absence of any precedent in Malaysia offers guidance and is of persuasive value) a new Prime Minister so appointed by the Yang di-Pertuan Agong is entitled to a fair trial in government, at least until it becomes clear that he or she is unable to secure Dewan Rakyat support which is necessary to carry on the executive government. Hence, as incumbent, the new Prime Minister by exercising the great power that resides in his office may be able to entice fence-sitters to join his government. The process can go on for some months. Only if it is established to the King’s satisfaction that no person can secure majority support in the Dewan Rakyat, should the King dissolve Parliament and call for fresh elections.

Although there are no Malaysian precedents guiding the Yang di-Pertuan Agong in the exercise of his prerogative to appoint a Prime Minister under Article 43(2) of the Federal Constitution, as the institution of the monarchy forms the bedrock of the Malaysian governmental system any judgment made by the Yang di-Pertuan Agong would be accepted by the public as representing the national interest, unless the choice is so bizarre and unreasonable. The parameters or margin of discretion that the King enjoys is substantial, and he can be assured of public support regardless of the candidate chosen. The special role played by the Yang di-Pertuan Agong since Merdeka has proved that the creation of the office of the Supreme Head was a wise one. In 1964, Professor Groves was of the view:

“I think it is fair to say that the Yang di-Pertuan Agong has become a visible symbol of unity in a remarkably diverse nation … and has emerged as one of the strong cohesive forces in the federal structure.” (The Constitution of Malaysia (1964) page 42, and cited in “The Constitutional Position of       the Yang di-Pertuan Agong” by F.A. Trindade in “The Constitution of Malaysia, Its Development: 1957 – 1977” Edited by Suffian, Lee & Trindale (1978) page 117.)

In 1975, Professor Hickling described the office of the Yang di-Pertuan Agong:

“as the essential one of the Malaysian Constitution, without which all others become meaningless”. (“The Prerogative in Malaysia” [1975] 17 Mal. L.R. 207, 219.)

In consequence, I venture to suggest that 50 years after Merdeka, the Malaysian polity has become sufficiently stable and secure that it can, with ease, adjust and accommodate to circumstances in the future when the Yang di-Pertuan Agong would have to deal with a successful motion of no confidence against a sitting Prime Minister, and to appoint a new Prime Minister under Article 43(2). It is a mark of Malaysia’s maturity as a truly functioning democracy, particularly in the wake of last month’s general elections, that the ship of state can successfully sail into uncharted waters without fear of the unknown.