April 20, 2018
PM’s Appointment after GE14 – sorting facts from lies
by Tommy Thomas@www.malaysiakini.com
COMMENT | With polling day fixed for May 9, 2018, there is much disinformation about the appointment of the prime minister when the results become known.
The two falsehoods widely disseminated in the mainstream media is firstly, the extent and scope of the discretion of the Yang di-Pertuan Agong in inviting a person to become the Prime Minister in order to form the next federal government.
Secondly, it is claimed that BN is regarded as “one party” while Pakatan Harapan is considered “a coalition”, and that this difference is relevant in computing the level of support in the Dewan Rakyat for the purpose of appointing a Prime Minister.
Fortunately, the Federal Constitution provides plain and clear answers, free from ambiguity, to debunk these lies. Article 40(2) provides 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”.
The words “in his discretion” may indicate that the Agong has a wide discretion. However, Article 43(2)(a) substantially narrows such discretion by stating that the 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” (emphasis added).
Hence, under the Constitution, the King does not have a completely free hand. Instead, the Prime Minister so appointed must be:
i. a member of Dewan Rakyat
(as opposed to being a senator in the Dewan Negara); and
ii. must be able to command the confidence of the majority, that is, at least 112 members of Parliament out of a total membership of 222.
These articles merely set out in express terms the constitutional convention which has existed for at least two centuries in numerous countries of the Westminister type of parliamentary government which Malaysia also has.
Not chosen by monarch
We have a government, elected once in five years, which is responsible to Parliament, that is, a government that is accountable to the elected branch of the legislature.
Because that is a fundamental pillar of parliamentary democracy, a person can only be the Prime Minister if he can initially command, and subsequently retain for the entire parliamentary term of five years, the confidence of the majority of the members of the Dewan Rakyat.
The terms “party” and “coalition of parties” are not mentioned in these articles. Under the constitution, how a Prime Minister achieves a majority in the Dewan Rakyat is not stated.
The Constitution, intended to serve as the nation’s supreme law for posterity, is deliberately drafted in wide, broad and general terms, and is also to be interpreted in a liberal and generous fashion. What is fundamental is the ability of a prime minister to control the majority of the Dewan Rakyat so that he has a stable government.
The task facing the Agong, as constitutional monarch, is therefore clear when appointing a Prime Minister after general elections. The King (Malaysia’s New King) invites the leader of the coalition of parties – either Najib Abdul Razak or Mahathir Mohamad – who enjoys the support of 112 or more members of the Dewan Rakyat.
It is as simple and plain as that. There are no other options because the coalition itself elects its leader. Thus, for all practical purposes, the leader of the political coalition that has won the general elections will be invited by the monarch to form the next government. In such circumstances, the monarch has absolutely no choice in the matter.
No single party as government
In Malaysia, no single party has been able to command the majority of the members of the Dewan Rakyat to form a government on its own.
The first government of independent Malaya which took power on August 31, 1957 was the Alliance coalition comprising UMNO, MCA and MIC. In 1972, the Alliance expanded into the BN coalition which now consists of 14 different political parties. All the six Prime Ministers of Malaysia headed coalitions.
Even when a prime minister died in office, our Agong had no personal choice in inviting a successor to take over.
Thus, when Abdul Razak Hussein died in January 1976, it was UMNO who decided who was to follow. UMNO nominated its Deputy President, Hussein Onn. Neither the component parties of BN nor the Yang di-Pertuan Agong had any influence on his appointment, and Hussein was invited by the monarch to become our Third Prime Minister.
Simple, straightforward choice
The disinformation circulating in the BN mass media is that there is a major difference between the BN and Harapan coalitions which the King should take into account when appointing a prime minister after GE-14.
According to this argument, BN has been registered as a political party by the Registrar of Societies (ROS) under the Societies Act 1966. As a result, all the candidates for the 222 parliamentary seats contested by BN will stand on a common BN ticket. In contrast, Harapan candidates will contest as DAP, Keadilan or Amanah candidates rather than as Harapan candidates, although sharing a common logo.
This is a wholly disingenuous argument. It neither accords with constitutional law nor reflects political reality.
It must be recalled that the ROS rejected Harapan’s application to register itself as a political party while approving BN’s similar application. Thus, Harapan is prevented from contesting as a single party. In fact, Bersatu has been threatened with de-registration, and cannot field candidates under its banner.
In such circumstances, Harapan is not treated the same way as BN. Surely that cannot objectively be a relevant factor in the exercise by the Agong of His Majesty’s discretion under Article 43(2)(b) as to who is likely to command the confidence of the majority of the Dewan Rakyat.
What stands out in GE14 is a close contest offering a simple, straightforward choice between BN and Harapan. Likewise, it is a simple, straightforward choice between Najib and Mahathir as prime minister. One would be insulting the intelligence of the 15 million voters if one thinks that they cannot recognize this political reality and spot the differences between them.
Another real possibility is the formation of new coalitions post-elections. After May 10, political parties which were neither aligned to any coalition may join one. Likewise, a party in the BN coalition may shift to Harapan, or vice-versa.
In numerous countries, serious negotiations to form a government only commence after elections, and often take time. Thus, Angela Merkel was only sworn in very recently as the German chancellor, months after her party had become the largest political party but was unable to form a government without the support of other parties. One cannot rule out this possibility after GE14.
The millions voting for Harapan can, however, rest assured that if the combined number of members elected on its coalition banner to the Dewan Rakyat exceed 112, Mahathir will be invited to form the next government, becoming the nation’s seventh prime minister.
TOMMY THOMAS is a senior lawyer, who occasionally writes on political and economic matters.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.