Making it to the Nation’s Top Post
Thu, April 23, 2009 Leave a comment
Reflecting On the Law
Shad Saleem Faruqi
Wednesday April 8, 2009
DESPITE swirling rumours that there were some hitches in the appointment of the new Prime Minister, Malaysia continued its proud tradition of a peaceful and orderly succession to the nation’s top political post.
Of the five previous prime ministers, four (Tunku Abdul Rahman, Tun Hussein Onn, Tun Dr Mahathir Mohamad and Tun Abdullah Ahmad Badawi) stepped down voluntarily and gracefully. Tun Razak died in office at the peak of his popularity.
Appointment: In the US and France, the President is chosen by the entire electorate at a nationwide poll.
The Prime Minister in a Westminster-style democracy like ours is appointed, not elected. Before his appointment as the CEO of the nation he is an ordinary MP elected by the voters of a single parliamentary constituency.
The power to appoint him is vested in the Yang di-Pertuan Agong with two guidelines provided in Article 43(2)(a).
First, the appointee must be a member of the Dewan Rakyat. Second, in the judgment of the King, the PM designate must be “likely to command the confidence of the majority of the members of that House”.
Despite the simplicity of the language, the permutations of politics are many.
Discretion of the King: Article 40(2)(a) provides that the Yang di-Pertuan Agong may act in his discretion in the performance of a number of functions including the appointment of a PM. This means that the King is not bound by the advice or wishes of an outgoing PM.
When a vacancy in the office of the Prime Minister arises due to death, resignation or a vote of no-confidence, the question as to who satisfies the twin requirements of Article 43(2)(a) is mostly a political, and not a legal, question.
In some circumstances, the Yang di-Pertuan Agong’s discretion may tilt the balance in favour of a candidate.
Membership of Dewan Rakyat: Despite the explicit language of Article 43(2) that the Prime Minister must belong to the Dewan Rakyat, it is possible to envisage situations in which a Senator or a person from outside Parliament may be anointed.
One must remember that the law of the Constitution is often supplemented by customs, usage, understandings and practices that “provide the flesh to clothe the dry bones of the law”.
In the UK in 1963, after the resignation of Prime Minister Harold Macmillan for reasons of ill-health, Lord Home, a member of the House of Lords was appointed by the Queen to grace the office of Prime Minister.
Lord Home resigned his place in the upper House. A by-election was engineered for his sake. He won a seat in the House of Commons. This satisfied the constitutional rule that the PM must belong to the elected, lower House.
In Selangor a few years ago, a similar precedent occurred. Upon the unplanned resignation of then MB Tan Sri Muhammad Muhammad Taib, a federal Minister, Datuk Abu Hassan, was nominated for the task. He won a seat in a by-election, thereby satisfying the constitutional requirement of membership of the State Assembly.
The person: Aside from requiring that the Prime Minister must belong to the Lower House and must be likely to command the confidence of that House, the Constitution does not specify any other pre-requisites.
There is no upper age limit, though the PM must qualify as an MP and be at least 21. In Australia Chris Watson became PM in 1904 at age 37.
There is no legal requirement that after the death or resignation of a prime minister, his deputy must automatically ascend to his post.
Whether the mantle of leadership of the party and of the Government will devolve on a DPM depends on politics. His elevation rests largely on his party or coalition rallying behind him to convince the King that under Article 43(2) the Deputy now commands the confidence of the Lower House.
Ethnicity, gender or region are not legally relevant. But citizens by naturalisation are not eligible.
It is within the realm of legal possibility that in some distant future a non-Malay or a woman or a Sabahan/Sarawakian will inherit the mantle of leadership. Whether political realities will ever throw up such a possibility is, however, a separate issue.
The party: There is no law that the PM must belong to a particular party or that he must belong to any party whatsoever! Nor is it necessary for him to be the leader of the majority party in Parliament.
In India it is common for the party-presidency and the prime ministership to be held by two different persons.
Confidence of the majority: If there is a majority party or coalition in the Dewan Rakyat and if the party or coalition is united behind a chosen successor (as has been the case after all 12 federal elections), then the Yang di-Pertuan Agong’s role in appointing a new Prime Minister is merely symbolic and nominal.
Barring extraordinary circumstances, the King is expected to follow the wishes of the majority party.
But if the vacancy arose due to defeat on a vote of no-confidence or due to internal dissensions within the ruling party or coalition or if there is a “hung Parliament” – i.e. no political group is commanding a clear majority in the Lower House – then the Yang di-Pertuan Agong’s discretion acquires great significance.
Unlike in Nepal, where the leader of the largest party must be given the first bite of the cherry, Malaysia has no such rule.
The Constitution does not require that the PM must have an actual physical majority in the Dewan Rakyat. It is sufficient, if he has “the confidence of the majority”.
The PM can be a non-party man (Tun Mahathir was for a while when his party was de-registered).
The PM can belong to a minority party and may be a compromise, short-term candidate to whom the majority has promised support.
If a prime minister resigns from his party or is expelled from the party or his party is de-registered, he can still continue in his post provided that he has the backing of the majority of the MPs in the Lower House.
In the early 70s, Prime Minister Indira Gandhi of the Congress Party of India was expelled from her party by the party elders. In the 80s Malaysian Prime Minister Dr Mahathir’s Umno party was declared by the High Court to be an unlawful society under the Societies Act.
In both cases, the premiers continued in office due to the confidence of the majority of the members of the Lower House. The fact that they had no political party to stand behind them is constitutionally irrelevant.
A similar discretion would exist in other unusual or extreme cases e.g. if the ruling party or coalition is deadlocked on the choice of a leader, or if the entire political leadership is wiped out in a terrorist attack or if during a dissolution of the Dewan Rakyat the caretaker Prime Minister dies or resigns before election results throw up a new leadership.
The Article 43(2) guidelines – membership of the Dewan Rakyat and confidence of the House – will be difficult to apply in such unusual situations. A judicious exercise of discretion and a careful regard for political impartiality would guide His Majesty.
DPM: The post of the Deputy Prime Minister is nowhere mentioned in the Constitution and can be regarded as an honorary position in the Cabinet conferred at the discretion of the PM as a matter of constitutional convention. In India the PM has often appointed more than one deputy.
Cabinet posts: Under Article 43(2) Cabinet ministers are appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister. The PM’s power to choose his own team is not fettered by any law and is only subject to the exigencies of coalition and federal politics. The PM can name someone as a Senior Minister.
Under Article 43(5) the appointment of any minister can be revoked by the King on the advice of the PM.
What is the constitutional position of ministers once the Prime Minister submits his resignation?
The law is silent on the point. But conventions from the UK indicate that if the coalition in office still retains its majority in the lower House, the Government as a whole need not vacate office.
Individual ministers appointed by the previous PM need not resign. But they must place their position at the successor’s disposal.
The successor may decide to make a few changes. Those whose services are not needed must resign or face dismissal.
Ministers who are retained need not be re-appointed formally. This is what happened in October 2003 on the resignation of Tun Dr Mahathir Mohamad.
Dr Shad Saleem Faruqi is Professor of Law at UiTM.