Appointment of Prime Minister after General Elections

Truth is the first casualty in the Barisan controlled mass media in the final run-up to the 13th General Elections. Among the 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, and secondly the allegation that Barisan is regarded as “one party” while Pakatan is considered “a coalition” is relevant in computing the level of support in the Dewan Rakyat for the purpose of appointing a Prime Minister.

We have to turn to the Federal Constitution for the answers. 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”. Hence, within the terms of the Constitution itself, the King cannot act with total freedom. Instead, the Prime Minister so appointed must be:

(i) a member of the Dewan Rakyat (as opposed to being a Senator); 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.

Articles 40(2) and 43(2)(a) merely set out in express terms the constitutional convention which has existed for at least 2 centuries of the Westminister type of parliamentary government which Malaysia has. We have a government, elected once in 5 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 5 years – the confidence of the majority of the members of the Dewan Rakyat.

It would be noted that the terms “party” and “coalition  of parties” are not referred to in Article 43(2)(b). That represents the constitutional position. 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 clear when appointing a Prime Minister after general elections (as opposed to the death or retirement of a Prime Minister). The King invites the Leader of the coalition of parties — either Najib Razak or Anwar Ibrahim — who enjoys the support of 112 or more members of the Dewan Rakyat. It is as simple and plain as that. I have set out the position as discussed by constitutional scholars in Malaysia, Britain, India and Australia in the Appendix that follows.

The political reality is the dominance of parties in the modern democratic system, and more significantly, the use of the party whip to ensure discipline among party members. This means that parties (or coalitions of parties) are the dominant actors in the political realm. They choose the candidates, fund them, and ensure that they run on the party ticket supporting the party manifesto. The electorate invariably votes for the party, rather than the candidate, although there are always charismatic candidates who would personally receive some votes, rather than through their party. After election, the successful Members of Parliament accept the party whip and vote with their party throughout the life of that Parliament. The party itself elects its leader. Thus, for all practical purposes, the leader of the political party that has won the general elections will be invited by the Monarch to form the next government; for example, Tony Blair leading the Labour Party to victory in 1998, and being invited by Queen Elizabeth to become Prime Minister. In such circumstances, the Monarch has absolutely no choice in the matter.

In Malaysia, no single party (not even UMNO) has been able to command the majority of the members of the Dewan Rakyat. Instead, the first government of independent Malaya which took power on 31st August 1957 was the Alliance coalition comprising UMNO, MCA and MIC. In 1972, the Alliance expanded into the Barisan Nasional coalition which now consists of 14 different political parties. All the 6 Prime Ministers of Malaysia headed coalitions, and that trend will continue in the foreseeable future.

The disinformation circulating in the Barisan mass media is that there is a major distinction between the Barisan and Pakatan coalitions which the King should take into account when appointing a Prime Minister after the 13th General Elections. According to this argument, the Barisan 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 Barisan will stand on a common Barisan ticket. In contrast, Pakatan candidates will contest as PAS, Keadilan or DAP candidates rather than as Pakatan candidates. This is a wholly disingenuous argument. What is never disclosed is that the ROS is a bureaucrat totally subservient to the Barisan government. He never acts independently, fairly or correctly. Just one example of his bias would be sufficient : it should be recalled when the High Court declared UMNO illegal in 1986, the ROS immediately approved Prime Minister Mahathir’s application for the formation of UMNO Baru while rejecting the application by former Prime Ministers Tuanku Abdul Rahman and Hussein Onn for the registration of their own political party. Therefore it is not surprising to learn that the ROS rejected Pakatan’s application to register itself as a political party while approving Barisan’s similar application. Thus, Pakatan is prevented from contesting as a single party.

In such circumstances, by the abuse of the law, Pakatan is not treated the same way by Barisan.  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 this general elections is a close contest which offers a simple, straight-forward choice between Barisan and Pakatan. Likewise, it is a simple, straight-forward choice between Najib Razak and Anwar Ibrahim as Prime Minister. Indeed, in the presidential style campaign adopted by Najib, his personality is very much emphasized, rather than that of UMNO or Barisan. The 13.3 million voters are also aware that they have this simple, straight-forward choice in the ballot box, and are being invited to vote along such lines in two cornered contests in nearly all the seats.

Against this background, it is absolutely flawed to argue that Najib can take into account all the Barisan Members of Parliament when computing his support in the Dewan Rakyat, but Anwar can only take into account the Keadilan Parliamentarians (but not the others who were elected under DAP, PAS or other Pakatan parties). This myth must be demolished.

Like all Malaysians, the Agong and his palace advisers will be closely following the campaign, the elections and the results. The Agong is entitled constitutionally to exercise his judgment quietly, calmly, freely, independently and impartially. No pressure or threat must be used to influence the Agong. There must be no repeat of the shameful episode in Sabah in April 1985 which resulted in the grab for power by Tun Mustapha and Harris Salleh which became the subject of litigation in Tun Mustapha Harun v Tun Mohd. Adnan Robert and Datuk Joseph Pairin Kitigan [1986] 2 MLJ 420.

Most critically, the Agong is entitled to receive independent legal advice, that is, independent of Barisan and Pakatan. This means that the Attorney General’s Chambers, which has been in the forefront of giving partisan legal advice to the Barisan government for years, and the Attorney-General who is personally beholden to Najib Razak and who has prosecuted Anwar Ibrahim since 1998, should not also advise the Agong in the monarch’s most important constitutional duty, the appointment of the next Prime Minister. The Agong should look elsewhere for independent legal advice, if that becomes necessary.

Tommy Thomas

10th April 2013

————-

APPENDIX

(i) MALAYSIA

Since attaining independence in 1957 there has not been any problem regarding the appointment of the Prime Minister. This is because, first, the same party has remained in power, having always won the general election by a sufficiently big majority. Secondly, when the party chooses its leader it is always with the understanding that if the party comes to power, he would be the Prime Minister. So, at the Federal level, the role so far played by the Yang di-Pertuan Agong in appointing the Prime Minister, has been no more than giving constitutional endorsement to the decision of the party in power. ‘Party’ here must be read to mean the ‘major party in the governing coalition’.

(Page 80)

Secondly, the existence of ‘close ties’ between the Sultan and the nominee is not relevant. It is not a factor to be considered. The only consideration is whether he is likely to command the confidence of the majority of the members of the Assembly.

(Page 82)


Y.A.M. Raja Azlan Shah

The Role of Constitutional Rulers in Malaysia

published in

The Constitution of Malaysia – Further Perspectives And Developments

edited by F.A. Trindade & H.P. Lee [1986]

 

This subjective judgment may appear to give freedom of choice, yet by convention the monarch is practically bound to appoint only that person who is leader of the political party which has the largest number of seats in the Lower House. No doubt some other person could instead be appointed, since there is no way that the Agong’s own personal satisfaction in this matter could be challenged. Yet, he would not do so because he is aware that such a person would be able to stay on in office only until the next vote of no confidence is passed against him in the House. This would illustrate the view that conventions are still important for written constitutions as well.

(Pages 48 & 49)

Azmi Abdul Khalid

“ROLE OF THE MONARCH”

published in

Reflections on the Malaysian Constitution,

Aliran [1987]

 

(ii) Britain

… in reality the Queen’s prerogative is governed by the fundamental constitutional convention, grounded in political necessity, that she must appoint as Prime Minister the man or woman who can form a government which will have the confidence of the House of Commons. Normally this convention clearly indicates the party leader who, having majority support in the House, has an indisputable claim to be appointed.

A general election that fails to give an overall majority to one party may produce a result allowing of either a single-party minority government or a government formed from any of various combinations of parties under one or other of a number of party leaders.

… What should be the role of the sovereign in the choice of a Prime Minister in such circumstances ? The ‘golden rule’, as Robert Hazell expressed it, ‘is not to draw the monarchy into controversy or political negotiations’

By Colin Turpin & Adam Tomkins

British Government and the Constitution

7th Ed [2011)

(Page 381)

But the most dramatic and significant part of the electoral outcome came in the five days of inter-party negotiations leading to the formation of the Coalition Government.  Over the course of five long days, Friday May 7 to Tuesday May 11, 2010, the political parties entered into a multi-faceted process of negotiations, some formal, many informal, with pressures exerted upon the leading players from within their parties and without. A significant feature throughout this period was the intense confidentiality surrounding the communications and meetings between participants.

A figure of 326 parliamentary seats was needed for an overall majority, leaving the largest party, the Conservatives, 20 short.  After the Conservative Party combined with the Liberal Democrats, their voting strength in the House of Commons is 363 compared to 287 all others.

Robert Blackburn

The 2010 General Election Outcome andFormation of the Conservative —Liberal Democrat Coalition Government

[2011] PL 30


(iii) INDIA
If two or more parties enter into a coalition and thus secure a majority in the Lok Sabha, then again the President would have no option but to induct the acknowledged leader of the coalition into the Prime Minister’s office. In 1977, the Janata Party, a combination of several parties, secured a majority. The leader of Janata Party Morarji Desai was appointed Prime Minister.

(Page 186)

M.P. Jain

Indian Constitutional Law

Vol. 1 — 6th Ed [2010]

 

But if in a general election the party in power is defeated, and no party with a clear majority is returned to the House of the People, then, notwithstanding that the Ministry continues in office till a new Ministry is sworn in, the President has a real discretion to ascertain for himself, first, which party or combination of parties can form a stable Government, and secondly, which of the persons  contending for leadership is accepted by such party or parties as their leader.

(Pages 2043 & 2044)


Article 75 (1) provides that “the Prime Minister shall be appointed by the President, and the other Ministers shall be appointed by the President on the advice of the Prime Minister”. Ordinarily, by convention, the acknowledged leader of a political party, or a group of parties, which commands the support of a majority of the House of the People must be appointed Prime Minister.

(Pages 2046 & 2047)

H.M. Seervai

Constitutional Law of India

Vol. 2 — 4th Ed. [1996]


(iv) AUSTRALIA
The Westminster type of parliamentary democracy relies for its working on the presence of a head of state who acts as a kind of umpire in the electoral game. The Governor-General’s role in constituting the government (by commissioning a Prime Minister) has already been noted. Often, the choice is clear, because one party or a coalition of parties has won a clear majority of seats at the elections. But from time to time there is no clear winner; then the Governor-General faces the difficult task of determining which party leader (or other member of Parliament) is most likely to secure the confidence of Parliament. This duty can be discharged properly only by consulting with all party leaders and independent members in good faith, and by acting in an impartial manner. A party does not secure an overall majority may claim majority support in the lower house by concluding agreements with independents and minor parties. This is what happened after the August 2010 General Election when Ms Julia Gillard secured the agreement of three independents and one Green Party member to become Prime Minister although her Labor Party failed to gain a majority.

Suri Ratnapala & Jonathan Crowe

Australian Constitutional Law – Foundations and Theory

3rd Ed. [2012]

(Page 55)

 


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Tommy Thomas is an advocate and solicitor who was called to the Bar on 3 June 1976. He is a senior counsel and has argued many important cases as well as written contributions to the Bar Council and Aliran. LoyarBurok is delighted with his decision to contribute to the blawg.

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