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©The Sun (Used by permission)
by Shad Saleem Faruqi
(Click here to read Parts 1 and 2)

If the prime minister dies in office (as happened to Tun Abdul Razak) or resigns (as Tunku Abdul Rahman, Tun Hussein Onn and Mahathir did), the King has no discretion if the ruling party or coalition has an absolute majority and is united behind a chosen successor.

LAST week it was pointed out that the Yang di-Pertuan Agong is a constitutional monarch who, in most of his functions, is required to act in accordance with the advice of the prime minister. Two important departures are provided for in the Federal Constitution.

• Article 40(2) of the Federal Constitution explicitly confers personal discretion on the King in relation to four matters, namely, appointment of the prime minister; consent to a request for the premature dissolution of the Dewan Rakyat; requisitioning of the Conference of Rulers; and “any other case mentioned in the Constitution”.

• Article 40(3) stipulates that the Constitution or federal law may provide that in relation to his non-discretionary functions, the Yang di-Pertuan Agong may be required to act after consultation with, or on, the recommendations of a person or body other than the Cabinet.

Appointment of PM

This is the most important constitutional function of the King. It has to be exercised after every general election. It may have to be exercised mid-way through a parliamentary term if the prime minister dies or resigns; is defeated on the floor of the Dewan Rakyat on a motion of no-confidence; or loses the support of the House for any other reason like defections from his party.

In the exercise of this power of appointment, the King is not bound by the advice of his outgoing premier. However, this does not mean that the monarch is free to act as he likes. Article 43(2) provides two guidelines. First, the prime minister must belong to the Dewan Rakyat. Second, he/she must be a person “who in (the King’s) judgment is likely to command the confidence of the majority of that House”. Both requirements permit intricate possibilities.

Outsiders

As to the first requirement, an interesting issue is whether the prime minister-designate can come from the Dewan Negara or from outside Parliament? Precedents are not lacking.

In the UK in 1962, Conservative Prime Minister Sir Harold Macmillan resigned due to ill health. The Queen, on his advice, appointed Lord Alec Douglas-Home, a peer from the House of Lords, to be her prime minister- designate. Lord Home renounced his peerage and his seat in the House of Lords. A vacancy was engineered in the House of Commons and a byelection was held at which he won the seat. This satisfied the constitutional tradition that the prime minister must belong to
the elected lower House.

In Malaysia in the 80s, on the resignation of Selangor Mentri Besar Tan Sri Mohammed Mohamed Taib, the post was offered to a federal minister, Datuk Abu Hassan Omar, who was not even a member of the Selangor Sate Assembly. A by-election to the State Assembly was engineered which he contested and won, thereby meeting the requirements of the Selangor Constitution.

It appears, therefore, that the requirement of membership of the elected House has been interpreted flexibly. Outsiders have often been appointed provided they regularise the situation by winning a seat after their appointment.

‘Hung Parliament’

The second requirement of Article 43(2) that the prime minister must command confidence of the majority of the lower House poses potential dilemmas and challenges. If a general election produces a clear-cut winner, the King has no choice but to appoint the leader of the party or coalition that controls an absolute majority in the Dewan Rakyat.

But if the electoral exercise results in a “hung Parliament” (in which no party or coalition commands an absolute majority), the monarch’s personal discretion comes alive. He has the power to shape the nation’s politics.

As a matter of constitutional propriety he should choose the leader of the largest party, even if it lacks an absolute majority. But if that choice may not produce a viable ministry, he may, after due diligence, opt for the leader of any pre-election or post-election coalition that stands a chance of forming a stable government.

If that too fails, he may choose a compromise candidate from a minority party to string together a caretaker government pending new elections. India offers several examples of such short-lived minority governments. Prime Ministers V.P. Singh in 1989 and Chandra Shekhar in 1990 headed such fragile arrangements.

Loss of confidence

A prime minister who loses a vote of no-confidence or whose party suffers massive defections or whose coalition breaks apart has two choices – step down or advise the King to dissolve the Dewan Rakyat and call fresh elections. Under Article 40(2)(b), the king is not bound by the prime minister’s advice to dissolve the Dewan Rakyat before the expiry of its five-year term. By convention, the sovereign normally accepts the prime minister’s advice but he has the right to refuse. The King is entitled to invite the Opposition Leader to assume the mantle of leadership.

What if the prime minister is expelled from her party as Indira Gandhi of India was in the 1970s? Or the premier’s political party ceases to exist as happened to Umno in 1988? Or the prime minister loses the ballot at his party’s presidential election?

In strict law it is not necessary in any of the above situations for the prime minister to resign as long as he satisfies the constitutional criterion in Article 43(2) that he enjoys the confidence of a majority of the members of the Dewan Rakyat.

Death or resignation

If the prime minister dies in office (e.g. Tun Abdul Razak) or resigns (as Tunku Abdul Rahman, Tun Hussein Onn and Mahathir did), the King has no discretion if the ruling party or coalition has an absolute majority and is united behind a successor. But if there is dissension within the ruling party, then the monarch’s discretion can tilt the balance in favour of one or the other candidate.

It is noteworthy that the post of deputy prime minister is not known to our Constitution and does not imply any automatic right of succession. However, four precedents between 1970 and 2004 have created a binding convention.

Personal attributes

Unlike several state Constitutions which require the Mentri Besar to be a Muslim, the Federal Constitution does not prescribe the race, religion, gender or territorial affiliation of the prime minister. As in the past, so in the future, political realties, rather than the law, will determine the choice of the nation’s highest political leader.

*Dr Shad Saleem Faruqi is Professor of Law at UiTM.