The Rumours

Confusion reigns.

Rumours of party switchovers and ‘a change of government’ are rife.

We are told that the current Prime Minister has ‘the numbers’ to form ‘a New Government’. Several questions come to mind:

Q-1:    Is the 2018 government now dissolved? Surely one cannot construct something new until the old is no more?

Q-2:    Is the formation of this ‘New Government’ constitutionally proper?  Some constitutional lawyers say this ‘can be done’. Is that true?

Q-3:    If a ‘New Government’ is to be formed, do the citizens have any say in it? If No, should they?

Q-4:    What is the role of the King in all this? Could his Majesty refuse to agree to this?

Can such a change occur?

Has the spirit of the Constitution been broken?

Backtrack to May 2018

On 10 May 2018, Tun Mahathir formed the current government. That has not been dissolved. So all this talk of a ‘New Government’ is rather odd.

What does the law say?

The law is not concerned with the various self-serving statements made by various politicians from opposing sides.

The King is the Supreme Head of the Federation

The Constitution states that the King is the supreme head of the Federation.¹Article 32(1) reads: ‘There shall be a Supreme Head of the Federation, to be called the Yang di-Pertuan Agong [the King]  who shall take precedence over all persons in the Federation and shall not be liable to any proceedings whatsoever in any court except in the Special Court established under Part XV.’

The actual words used by the King when his Majesty took his Oath of Office under Article 37 (1) were:

‘We… do solemnly and truly declare that We shall justly and faithfully perform Our duties in the administration of Malaysia in accordance with its laws and Constitution which have been promulgated… Further, We do solemnly and truly declare that We shall at all time protect the religion of Islam and uphold the rules of law and order in the Country.’

You will note that these words point in only one direction: that the King is bound to perform his Majesty’s duties in accordance with the rule of law.

The rule of law is not merely a set of words recorded in the Federal Constitution or in Parliamentary laws. We are also bound by centuries of the common law. And what does the common law say?

The rule of law is a higher creature. It animates and moves the larger concepts of equity and justice. I have explained it here.

“To act with justice, one must act in accordance with good conscience, good governance and transparency – isn’t that so?

“So, is what the MPs are doing, right? Does that accord with these goodly principles?

That is the question in the mind of the man in the street.

Who will answer that question?

Who has the power to run the Government?

It is the King. The Constitution says so.

It declares that such power is ‘vested’ in the King; and that those powers are ‘exercisable’ by either the King or by the Cabinet.

If the Cabinet is no more, that leaves the King to do the job.²Article 39 reads: ‘The executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and exercisable, subject to the provisions of any federal law and of the Second Schedule, by him or by the Cabinet or any Minister authorised by the Cabinet, but Parliament may by law confer executive functions on other persons.’

If there is to be a change, must the current Government be dissolved?

Is there anything in the Constitution that allows this? That is one question.

The second question is whether a New Government can be formed without such ‘dissolution’.

The politicians say, ‘Yes’.

All they have to do, they say, is to prove to the King that a Mr. X, ‘commands the confidence of the majority of the MPs’.³Article 43(2)(a) reads: ‘The Cabinet shall be appointed as follows, that is to say: the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet 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 …’

They argue that the current PM may ask the King to dissolve the government.

Shortly afterwards – say the politicians – Mr. X will produce a list of more than 112 MPs supporting him.

Is the King without choice?

Is the King forced to appoint Mr. X? Has his Majesty no choice?

Some lawyers say: when the King ‘exercises his constitutional functions’, his majesty must ‘act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet’.⁴Article 40(1) reads: ‘In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.’

This argument is not quite all there.

Before he decides this issue, the Constitution allows the King to ask for further information.⁵Ibid, Article 40(1)

Again, there is the argument that the Constitution requires the King to ‘act in accordance with the advice’ of  the PM or the Cabinet.’

If the current PM meets the King and says he wishes to change the government, several questions arise.

The first is logical: if the PM wishes to change the list of his supporters, the PM must first stop from being the prime minister. He must resign.

He must then submit a fresh list to the King, get the King’s approval, become PM, and only then appoint a new cabinet.⁶Article 43(1) reads: ‘The Yang di-Pertuan Agong shall appoint a Jemaah Menteri (Cabinet of Ministers) to advise him in the exercise of his functions.’ And Article 43(2)(b) reads: ‘The Cabinet shall be appointed as follows, that is to say:  … he shall on the advice of the Prime Minister appoint other Menteri (Ministers) from among the members of either House of Parliament; but if an appointment is made while Parliament is dissolved a person who was a member of the last House of Representatives may be appointed but shall not continue to hold office after the beginning of the next session of Parliament unless, if he has been appointed Prime Minister, he is a member of the new House of Representatives, and in any other case he is a member either of that House or of the Senate.’

Is that not odd? Does the current PM have the support of a majority of the MPs?

Last we heard, he did. So why go see the King?

But some people say,

‘No. One goes into the Palace as PM, and leaves as PM’.

Suppose that is correct: if so, what happens to the Election Manifesto, the current government’s promises since June 2018, and the hopes of most voters?

Can that be cast aside? The crossbenchers say, with temerity, ‘Yes, we are entitled to it’.

We shall come to that in a moment.

Can the King ask for fresh elections?

Can the King demand that the current PM, if he intends to ‘change the government’, ‘dissolve’ Parliament?

Can he ask the PM to call for fresh elections?

Every parliament has a maximum lifespan of 5 years from its first meeting.⁷Article 55(3) reads: ‘Parliament unless sooner dissolved, shall continue for five years from the date of its first meeting and shall then stand dissolved.’

The right of a government to rule, in theory, continues so long as one MP has most of the other MPs on his side.

A government cannot be dissolved unless Parliament is dissolved.⁸In practice, a caretaker government is then put into place.

“The Constitution does not say whether the PM can ‘switch governments’ and ‘swap’ one group of MPs for another.

There are conventions from other countries we could fall back on, but then those countries do not have a Constitution like ours.

The King can dissolve Parliament without asking anyone’s permission: Article 55(2)

“The King has the power to dissolve parliament.

“The Federal Constitution, in two clear provisions, gives this power to the King.

I shall set them out for you:-

Article 40(2) reads:

‘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; …’.

Again, Article 55(2) reads:

‘The Yang di-Pertuan Agong may prorogue or dissolve Parliament.’

“The King does not have to ask anyone’s permission for that. 

The Constitution does not tie his hands.⁹Article 55(2)

Further, the King has a constitutional discretion whether he wishes to do so.¹⁰Article 40(2)

Once Parliament is dissolved, the country must have another election.

The custom is, the King usually leaves it to the PM to decide when the PM wishes to have fresh elections.

But the power struggle this weekend is anything but ‘usual’.

It has never happened before. An it flies in the face of the people’s electoral mandate.

So the current situation frees the King from his need to ‘follow’ any previous custom.

Can the King say, ‘No’?

The answer is Yes.

The King has certain powers under the Constitution.

Under Article 40(2) of the Federal Constitution, the King may ‘act in his discretion’ in appointing ‘a prime minister’.¹¹Article 40(2)(a) reads: ‘The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say: the appointment of a Prime Minister; and in any other case mentioned in this Constitution.’

So as a stopgap measure, the King can use his own discretion on who he wants to appoint as the ‘next prime minister’.

 So that gives the King the power to decide who Mr. X shall be.¹²Ibid, Article 40(2)(a)

The King may also say that he has no power to dissolve the government under the Constitution unless there has been a vote of no confidence in Parliament.

This has not happened, yet.

Even if it does, the King may use his discretion and still call for a fresh election.

As pointed out before, if more than 112 MPs vote the current government out, the first person to go would be the current serving PM.

It would be odd if the current PM turns up at the Palace and says he now has a list of more than 112 MPS that support him for his appointment as PM.

In such a scenario, the King could exercise his constitutional discretion¹³Under article 40(2)(a) to refuse the appointment of a prime minister.

Or he could say, ‘I am prepared to appoint Mr. Y, if he can get the majority.’

What then?

The opposing argument is this: the King has no choice but ‘must act on the advice’ of the ‘Prime Minister’.¹⁴Article 40(1) reads: ‘In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet’ and Article 40(1A) reads: ‘In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.’

“If that is right, ‘to advise’ the King, the ‘advisor’ must still be ‘the Prime Minister’.

So can you see? We are running in circles.

What was the mandate given to current leaders and the PM in May 2018?

Despite massive gerrymandering, prior to the run-up to the 14^th General Elections  [and no one has forgotten that: see here], the overall feeling then was the rakyat no longer wished to have anything to do with the previous regime, or its representatives.

The nation wished to stop the abuse of power and kleptocracy.

It wished to prosecute those who had robbed and continued to rob the nation of its resources.

To ‘change’ the government in this way, to defy the wishes of a people who refuse to be ruled by elements of the previous regime — that is nothing but an abuse of the law, and a mere exploitation of numbers: that is against the spirit of the Constitution.

The proper thing to do would be to call for an election. In this way, the nation can determine for itself who should govern it.

Wayang Kulit ?

While the exploitation of numbers could change a government, the next election cannot be put off forever.

And those who come to polls will discover what the intent of the rakyat is.

There is a great deal of fear that any new government – which has as its constituents made of MPs of questionable integrity, would stultify the prosecution of all offenders.

“Those prosecutions would become, in words and deeds, a mere chimera, a façade, and a wayang kulit.¹⁵Puppet shadow play.

The ‘kulit’ would dance to the rhythm of the master puppeteer, the dhalang.

Does a change of government prejudice the nation?

Uncertainty is bad. It is a badge of instability.

In 1992, James Carville was a strategist for Bill Clinton. Clinton successfully ran for President against the incumbent, George Bush.

It was Carville who coined the phrase, ‘The economy, stupid’.

When a nation becomes unstable, by a game based on numbers, it injures an already tottering economy.

Such a government drives away investors. It sends the wrong message.

To change the government at this stage – in this way – would be to ruin the economy.

The consequences would alienate the people from its leaders.

What next?

We shall no doubt see what the desperate – and not so wise – members of parliament do in the next few days.

But politicians must remember this:

“We did not put MPs in parliament to play Russian roulette with our government, our lives, and the future of our children.

Much depends, also, on the King, and how he will exercise his discretion.

We hope his Majesty will look into the hearts of his people.

We know he will.

[The author expresses his gratitude to Ms. KN Geetha, Mr. JD Prabhkirat Singh, Mr. GS Saran and Miss KP Kasturi for their assistance.]