Sunday, April 21, 2013

Royal role in appointing the PM by Shad Saleem Faruqi - The STAR

IN the aftermath of a general election, the most critical and possibly controversial issue is the appointment of the Prime Minister. The Constitution provides three guidelines:
> The PM must not be a citizen by naturalisation or registration: Article 43(7).
> He must be a member of the Dewan Rakyat: Article 43(2). This appears non-controversial. However, life being larger than the law, novel situations may arise. In the United Kingdom in 1963, the Conservatives won the election but their leader, Lord Home, belonged to the Upper House. The Queen appointed him as the PM but only on the condition that Lord Home resign his peerage, engineer a by-election and be elected to the House of Commons. In Selangor, in the 80s, a similar situation was thrown up when a vacancy arose in the post of the Mentri Besar and Datuk Abu Hassan, a federal minister, was appointed MB even before he contested and won a seat in the Selangor legislative assembly.
> The PM-designate must, in the judgment of the Yang di-Pertuan Agong, be “likely to command the confidence of the majority of the members of the House”. This wording leads some people to believe that the monarch has unlimited and subjective discretion in the matter. Actually, the constitutional position is that if a party or coalition commands the confidence of an absolute majority (112/222) of the members of the Dewan Rakyat, the King has no choice but to choose its leader as the PM.
In conferring the mantle of leadership on someone, the King is not obliged by law to take into consideration the advice of the previous PM, the candidate’s support in the Dewan Negara and the percentage of the popular vote obtained by his party. It is not relevant how many states the PM-designate’s party won or lost at the GE. It is the number of supporting MPs in the Dewan Rakyat that matters.
The race, religion or region of the nominee is not mandated by law and is a matter of constitutional conventions. This is in contrast with the constitutions of the nine Malay states with Malay Rulers which are explicit that unless the Ruler makes an exception, the MB must be a Malay/Muslim.
What are the possible scenarios after the next GE? The first is that the ruling coalition may win a two-thirds or an absolute majority in the Dewan Rakyat, in which case the King’s role in appointing the PM is merely ceremonial.
Contrary to what is believed by some, a two-thirds majority is not necessary to form a government and to pass legislation. A two-thirds majority is relevant only for constitutional amendments.
A complication that can arise is if, for whatever reason, e.g. death or resignation, the ruling coalition is deadlocked on the choice of its leader. In such a situation, the King may follow Australian precedents and appoint a short-term caretaker PM from a minority party to helm the affairs of the state while the ruling party makes up its mind.
A second possibility is that the opposition may win with an absolute majority in the Dewan Rakyat. In such a situation, the caretaker PM will resign and the King will appoint the opposition leader as the new PM. A smooth transition of power will take place.
A complication may be if the winning opposition coalition is deadlocked on who its leader should be. In such a case, the King may allow the incumbent PM to continue temporarily till the opposition resolves its leadership issue. Alternatively, the King may pick someone from a third party to head a temporary caretaker government.

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