History

After the 14th general elections held in Malaysia on 9 May 2018, the Coalition of Hope (Pakatan Harapan) formed a government that lasted for a year and nine months.

On 21 May, 12 members of the ruling coalition betrayed their colleagues and by a move that is becoming disturbingly common here – made an amphibious migration to the Opposition.

On 24 February, the then incumbent Prime Minister, Mahathir handed in his resignation.

In the next 10 days, there were many U-turns by different politicians from differing component parties.

Some of them ended up in a ditch.

Muhyiddin’s appointment as PM

This morning, on March 01, 2020,  at 10:30 AM, His Majesty the King appointed Muhyiddin Yassin as 8th Prime Minister of Malaysia, amidst strong disagreement over the constitutional correctness of the appointment process.

We extend our congratulations to the new Prime Minister.

Did Muhyiddin really have the numbers?

There is a brooding doubt among Malaysians that when Muhyiddin went to see the King, he did not have the requisite number of MPs on his side: namely 112.

One day is far too long in politics

One way to challenge the Muhyiddin Yassin appointment is to prove that Muhyiddin did not have the numbers. Mahathir tried to mount a challenge, but complained the King would not meet him.

But all that is so much water under the bridge.

Parliament reconvenes on March 09

The Second Session of the 14th Malaysian Parliament ended on 06 December 2019.

Parliament’s Third Session is scheduled to commence on 9 March 2020.

Those are the Pre-determined, gazetted dates approved by the King.

Opposition’s move: a Motion calling for a Vote of No Confidence at Parliament

To prove that Muhyiddin does not have the numbers, the Opposition might seek to move a motion at Parliament to declare a Vote of No Confidence – against Muhyiddin and his new-born government.

Technically, the word ‘government’ cannot be used until the Cabinet comes into existence.

So do you think a Vote of No Confidence will be taken on March 09th?

I seriously doubt it.  I think March 09th may not happen.

But the following events may happen:

(1)  new defections out of the Perikatan Nasional may make the government fall;

(2).  a Vote of No Confidence may be successful at a later date;

(3).  the new government may fall at or during the Budget day in Parliament; and

(4). knowing all this, Muhyiddin will take the risk and call for a Snap Election.

Let me explain why.

I expect the Opposition will take certain steps:

Step-1:  Wait for Parliament to be convened

Step-2:  Move a properly-worded Motion of No Confidence against Muhyiddin’s government

Step-3:  If the Opposition loses the motion, it will try again, and again. Obviously this might cause a great deal of disruption.

Step-4:  If the Opposition wins, it will try to cobble together a new coalition of non-amphibious MPs

Step-5:  If the Non-Amphibious Coalition springs a leak and falls, then the New Government may ask the King [under Article 40(2)(b)], to ‘exercise his constitutional discretion’ and dissolve Parliament, and call for an election. 

Step-6:  If the King refuses, then Muhyiddin or someone else in his stead, will do what Muhyiddin did earlier.

Step-7:  If all else fails, the King has no choice but to use his constitutional discretion, again, and dissolve Parliament [under Article 55 (2)].

What Muhyiddin will do to foil the Opposition

Step-1:  Muhyiddin will delay the convening of Parliament.

There are two ways he can do it.  The delay can last as long as 6 months, or until 05 June 2020.

Step-2:   Muhyiddin is the Leader of the House, so he can change meeting dates

Under Parliamentary rules, Muhyiddin, as Prime Minister is, in Parliament,  the ‘Leader of the House’: [Standing Order 4A]¹Standing Orders of The Dewan Rakyat

Using this unique position, he can change the dates on which the Dewan Rakyat is to meet.

This is because Order 11(2) says:

Standing Order-11:  Sessions and Meetings:

(2)        … [the] Leader … shall determine at least 28 days before the commencement of each Session, the dates on which the House shall meet in the Session:

Provided that the Leader or Deputy Leader of the House may vary from time to time the dates so fixed.²It arose from the UK Parliamentary practice. ‘A power of interfering with adjournments in certain cases has been conceded to the Crown by statute’. Erskine May, p. 147, Butterworths, 2011

So Muhyiddin might say to the Speaker, “I need to give you 28 days notice to ‘vary’ the meeting to another date. Please adjourn parliamentary proceedings until then”.

In this way, he will delay the re-convening of Parliament. The question is, for how long can he do that? We will come to that shortly.

Step-3:  Muhyiddin, using his powers as Prime Minister under Article 40(1) – will ‘advise’ the King ‘to prorogue Parliament’.

He may advise the King that under Article 40(1A), the King has ‘no choice’ but to ‘accept and act in accordance with such advice…’.

He might say to the King, most humbly of course, that if the King does not comply with such advice, the King would be breaching his obligations under clauses (1) and (1A) of Article 40 of the Constitution.

Step-4:  Muhyiddin will then ask the King to use his ‘discretionary powers’ in Article 55(2).

It says, ‘the [King] may prorogue or dissolve Parliament.’

Step-5:  If the King agrees with him, Muhyiddin will then exploit, what extra time he can get, say 6 months, to consolidate his position.

He and his coalition will make ready for a snap election.

Bersatu, the National Front, PAS and its other component parties believe,

[1] it will be difficult to hold on to power for too long, and

[2] and this they fervently believe – that in a Snap Election held immediately, there is absolutely no hope for the Pakatan Harapan coalition.

Step-6:  If the King refuses to postpone Parliament, Muhyiddin shall have to face Opposition Step-3, and take the consequences as they come.

Obstacle-1:  Muhyiddin faces a massive obstacle – time

‘Adjournment’ and ‘Prorogation’

Let us get a few ‘parliamentary terms’ right.

An ‘Adjournment’ differs from a ‘Prorogation’.

To ‘Prorogue’ means to postpone.

To ‘Adjourn’ also means to ‘postpone’.

What is the difference?

An ‘adjournment’ usually lasts for short periods of time.  It is a matter of days as opposed to weeks.

Parliament itself can determine that. It does not have to go to the King for permission.

Contrast that with the ‘Prorogation’ – which is an adjournment for a longer time.

Can a ‘prorogation’ last more than 6 months?

The answer is, ‘No’; because of the limitation imposed by Article 55(1).

Thus Muhyiddin does not have the luxury of time. He cannot go beyond 6 months from the last Parliamentary recess – that date was in December 2019.

This is because Article 55(1) states that,

‘[The King] …shall not allow six months to elapse between the last sitting in one session … and the date appointed for its first meeting on the next session’

Could Muhyiddin delay parliament – by asking for an Adjournment – until June 2020?

He cannot.  Usually, an ‘Adjournment’  lasts only a short time – a matter of days.  So Muhyiddin cannot take forever.

So the right thing for Muhyiddin to do would be to go to the King and ask permission for a ‘Prorogation’.

Obstacle-2:  To Prorogue Muhyiddin requires the King’s permission – and the King can refuse

The power to ‘prorogue’ Parliament – which lasts longer than an  ‘Adjournment’ – is the power of the King alone. 

If Muhyiddin tries to persuade the King – that under Article 40(1A) the King must ‘act in accordance with the advice of the PM’ – then Muhyiddin’s team has to clamber over the bare face of the Rock of Gibraltar. 

That rock face is in Article 40(2)(b). It reads,

‘[the King] may act in his discretion in the performance of the following functions, that is to say… (a), (b), (c) … and in any other case mentioned in this Constitution.’

The UK Prime Minister, Boris Johnson, tried that and failed – he was sued.³R (on the Application of Miller v. Prime Minister; Cherry and Others v. Advocate General for Scotland [2019] 5 LRC  490 at p. 569 And he lost [for which see here and here].

He had to take the short route to a snap election – which he won, by the way.

Obstacle-3:  What does ‘in any other case mentioned in this Constitution’ mean?

Well, it means the King not only has a discretionary power to dissolve Parliament, but the King also has a discretionary power to prorogue Parliament.

The phrase ‘in any other case mentioned in this Constitution’ occurs in Article 55 (2).

The words of clause (2) of Article 55 are,

‘[the King] may prorogue or dissolve Parliament.’

The presence of the word, ‘may’, in the Constitution means the King has a choice: he can say Yes or No. 

‘Discretionary’ means the King does not have to listen to anyone. As long as his decision is correct under the rules of law, he will have made the right decision.

The argument that under Article 40(1A) that the King is bound hand and foot to every word the PM says – is incorrect in the context of Article 55. 

This is because of the word ‘may’ in Article 55 (2). The word ‘may’ also occurs in Article 40(2).

If you read it read carefully, it says,

‘[the King] may act in his discretion… in any other case mentioned in this Constitution’.

That knocks out the ‘compulsory argument’ addressed to the King that in ‘every case Your Majesty must comply with the Prime Minister’s advice’. That is in Article 40(1A).

Do you know where this clause, ‘(1A)’ came from?

That constitutional amendment was made by the Mahathir administration. It came into operation on June 24, 1994.

The earlier amendment to the Constitution that says, the King ‘shall act on the advice of the Prime Minister’ was also made during Mahathir’s administration.

That was the genesis of the conflict between Mahathir and the Malay Royal Houses.

In an earlier article, I had already set out the different scenarios that might play out, here.

What the government hopes the people will do

Now we fold our hands and observe further shenanigans.

That at least that is what the government hopes the people will do: raise an almighty clamour at first, and then, go away quietly.

Obstacle-4:  Danger of members crossing the Floor to the Opposition

If Muhyiddin has a thin majority, the number of MPs supporting him may drop – some of them may decide to re-migrate: or ‘cross-bench’.

This is a real danger: and often promises of power, prestige or other inducements may not work.

Obstacle-5:  By October,  if Parliament does not approve Budget, the government must resign

Every year, the government has to get Parliament’s approval to support its Budget.⁴

The ruling government has to propose government revenues.

It has to explain to Parliament how it will spend from the public coffer.

It will have to show its spending programme.

It has to set out its ‘fiscal policy’ – for the next two years at least.

It has to examine and forecast economic conditions for the next year.

And importantly, Muhyiddin’s government, if he manages to form one, has to get Parliament’s permission for all that.

If Muhyiddin does not have the numbers on his side to get his Budget approved, he and his government shall have to resign.

The Opposition’s Next Option

The Opposition’s other option will be to go to the courts.

Or find a loophole in the Constitution.

Those two strategies are up discussions on another day.