28/2/2020 0 Comments
One fateful Sunday, the coup attempt labelled as the ‘Sheraton move’ disrupted the usual two-coalition political configuration in the country, sending Malaysia into a state of political turmoil.
The events of the past four days raise several questions regarding the constitutional ambiguities of the legal framework governing the breakdown of a governing coalition and subsequent attempts to form a new government. In several instances, the events that have transpired over the past four days, have intimated some fragmentary answers or, at the very least, demonstrated the attitude of institutional actors such as the Prime Minister, Attorney General, and Palace officials during such a political crisis.
Although some of these questions are moot given the emergence of a political consensus, they nonetheless shed light onto the difficulties at the interface between codified constitutional rules — most of which were promulgated in 1957 — and the dynamism of contemporary political events.
II. THE PRIME MINISTER’S RESIGNATION AND HIS RE-APPOINTMENT AS ‘INTERIM’ PRIME MINISTER
Since a more detailed narrative of events can be found elsewhere, only a brief recitation of the precipitating facts is necessary. In the afternoon of Monday, 24 February 2020, 11 members of the People’s Justice Party (PKR) and the Malaysian United Indigenous Party (Bersatu) announced their departure from the governing Pakatan Harapan coalition — effectively depriving it of a majority in Parliament. Fearing that his Bersatu party, along with the 11 members of PKR, would attempt to form a government with the opposition parties — the United Malays National Organisation (UMNO) and Malaysian Islamic Party (PAS) — Prime Minister Tun Dr. Mahathir submitted two resignations: first to Bersatu as Chairman, and then to the King as Prime Minister.
Legally, what transpired next is unclear. According to the Chief Secretary of the Government’s first statement, the King accepted Tun Dr. Mahathir’s resignation and subsequently appointed him as ‘interim’ Prime Minister ‘until a new Prime Minister is appointed under Art 43(2)(a) of the Federal Constitution. Two hours later, the Chief Secretary released a second statement announcing that the King has acted on the advice of the Prime Minister to revoke the appointment of existing Ministers, under Article 43(5) of the Federal Constitution ‘in line with the Rt Hon Prime Minister’s resignation’.
The first difficulty relates to the nature of Tun Dr. Mahathir’s alleged resignation and reappointment. As he had not yet formally lost the confidence of the Dewan Rakyat (House of Representatives) — whether by a vote of no confidence in the House or communications to the King to the same effect — it is clear that his ‘resignation’ was voluntary and not under his Art 43(4) duty to do so. Yet, if he had in fact resigned and that resignation was accepted, it is questionable whether the King was correct to re-appoint him as ‘interim’ Prime Minister. As the political situation at the time did not indicate a Parliamentary majority in any way (which events since then have confirmed), the conclusion that Tun Dr. Mahathir was ‘likely to command the confidence of a majority of the members of [the House of Representatives]’ required under Art 43(2)(a) may not have had a direct factual basis.
There are two potential solutions to the puzzle: the former being preferable for future practice, but the latter being what probably transpired. First, the Prime Minister may just not have resigned as a matter of law, and hence legally maintains his previous appointment. Under this reading, references to the King’s ‘consent’ to his resignation refer to His Majesty’s informal consent that Tun Dr. Mahathir relinquish the post when a replacement is found, with the conditionally finite (albeit indeterminate) nature of that time justifying the qualification of ‘interim’ Prime Minister. Given that this approach would be squarely within the provisions of the Constitution and thus, leaves no room for legal challenge, it is preferable for future instances when an immediate interim caretaker administration is required due to the political crises leading to the breakdown of the ruling coalition.
However, given the clarity of the plain meaning of the Chief Secretary’s first statement, it is probable that a re-appointment did take place, with the King applying the fact that the Prime Minister had, at the time of his resignation, not formally lost the confidence of the House of Representatives in order to arrive at a ‘judgment’ that he was still likely to command a majority. Obviously, such a line of reasoning stretches the wording of Art 43(2)(a), but it may be possible that this ‘presumption of confidence’ becomes conventional for similar instances in the future with such an interpretation being regularised.
III. THE POTENTIAL NON-DISSOLUTION OF CABINET
Under the assumption that the latter is what took place, a second peculiarity arises — the status of Ministers after a Prime Minister’s voluntary resignation. Art 43(4) imposes a duty on the Prime Minister to tender the resignation of Cabinet when he ceases to command a majority (unless a request to dissolve Parliament is granted by the King), whereas Art 43(5) allows the Prime Minister to give the King binding advice for the revocation of a Minister’s appointment.
Unsurprisingly, there is no provision which takes into account a Prime Minister’s resignation in order to deprive the pre-existing government of its authority. Given that the Chief Secretary’s second statement disclosed an exercise of the Art 43(5) power after the Prime Minister's re-appointment, we are forced to arrive at the strange conclusions that: (1) a Prime Minister’s voluntary resignation did not imply the automatic resignation of Ministers appointed by him; and consequently (2) there was a period in which there were Cabinet Ministers but no Prime Minister. This is despite the fact that under Art 43(2), the Prime Minister’s role is constitutionally defined as Cabinet’s presiding officer, and that he must be appointed before other Ministers. Notably, these conclusions are contrary to the opinion of Professor Shad Saleem Faruqi, that in law ‘if the Prime Minister goes, the entire Cabinet goes’. The presence of the phrase ‘in line with the Rt Hon Prime Minister’s resignation’ in the Chief Secretary’s second statement is of no assistance since it clearly refers to the practical, and not legal, cause of the revocations.
Although in this case the period was brief, i.e. limited to the short time between the receipt of resignation and re-appointment, the absence of an automatic resignation of Ministers means that there is no reason why said period cannot be extended. Such a longer period may arise, for example, if the King decides to accept a Prime Minister’s resignation even when there is no successor who can clearly be chosen. During the period, there would be no means for Ministers to be removed, since under Art 43(5), the King may only dismiss Ministers on the advice of the Prime Minister. Although elsewhere conventions operate to ensure that resignations are not tendered under such circumstances, Tun Dr. Mahathir’s attempt at doing exactly that indicates that no such convention exists in Malaysia.
IV. THE FORMATION OF A GOVERNMENT, OR THE FAILURE TO DO SO
As it stands, the Prime Minister is the only member of Cabinet and political government. On Monday evening, the Attorney General stated that ‘there is no time limit to the office of an interim Prime Minister’ and that he may appoint Ministers. More broadly, it is accepted that a caretaker convention is in place with its substance likely analogous to those applicable during election periods while Parliament is dissolved, and that his current premiership is only temporary in order to maintain a Prime Minister during the uncertain period of potential government formation.
If his desire to resign from his party and coalition affiliation is taken at face value, he will not be the Prime Minister leading any new government that is formed. That, however, will require him to resign in order for a successor to be appointed. In order to ascertain who may fulfil the Art 43(2)(a) criteria, the King met each Member of Parliament (MP) individually over the course of two days. Although facially excessive, doing so was likely the most prudent course of action given that the source of the crisis is a fundamental breakdown of party discipline and hence, consultation limited to party leaders would be insufficiently informative. Given the intensity of the present crisis, it is unlikely that such an approach would become conventional for general practice in the future.
The most straightforward outcome is that a majority will emerge around an individual who will then be appointed as Prime Minister under Art 42(2)(1) and will confirm their command of a majority in the House of Representatives once Parliament returns from recess on 9 March 2020. The creation of such a majority is not constrained by boundaries drawn by political parties, as all that is necessary is for the Prime Minister to demonstrate that he has the support of a sufficient number of MPs and does not go on to lose their support. Any sort of ‘unity’ government is also formed on this basis, as there is no legal distinction between an ‘ordinary’ or ‘unity’ government. Similarly, political-not-legal is the notion of a ‘minority’ government, as such a label merely designates the fact that confidence in the Prime Minister is maintained on bases beyond the affiliation of their own party or coalition. In this particular sense, a ‘unity’ government is also a form of a minority government.
Less obvious is a resolution to the analogous possibilities where either: (1) no obvious majority can be found, and by some reason Tun Dr. Mahathir loses a vote of confidence once Parliament returns; or (2) an individual who appeared to command a majority is appointed as Prime Minister, but proceeds to lose a vote of confidence. Through Art 43(4), both instances require the Prime Minister to resign unless a request to dissolve Parliament is granted. Here, the fact that the provisions of Art 43 are not exhaustive of practical possibilities, they may lead to a genuine constitutional crisis of indeterminacy. Specifically, if the outgoing Prime Minister does not request a dissolution before resigning, it is wholly possible that the King is left with no individual who, in his judgment, would be likely to command the confidence of a majority of the House of Representatives. In such a case, a catch-22 will emerge owing to the fact that, under the Art 40(1) general obligation to solely act on advice, the King may only dissolve Parliament on a request by the Prime Minister. Yet, there would be no person who the King would be justified in appointing as Prime Minister. Without a shift in political alignments, this set of facts would be self-perpetuating.
Although in reality, a compromise would likely be brokered between MPs to affirm support of an individual solely to request a dissolution, the legal lacuna in the Constitution remains. It has been suggested that in such cases unforeseen by the Constitution, there may arise ‘residual, reserve, prerogative and inherent powers of the Yang di-Pertuan Agong’, which may include the power to dissolve Parliament without advice, but the tenability of such a position is questionable given that there is no legal basis for it. As Peter Crook has noted, given that ‘the office of the [King] is itself a creature of the Constitution… whatever discretionary power the Agong may have must first find its source in the text of the Constitution’.
Where the outgoing Prime Minister does request that Parliament be dissolved, Art 40(2)(b) makes it clear that the King has a discretion to grant or refuse the request. If there is evidently no majority, he would undoubtedly grant the request. If no such certainty exists and there are other candidates fulfilling the appointment criteria, the question arises as to whether it would be necessary to, as Twomey describes, ‘exhaust Parliament of other possible governments’. Despite it being favourable in the abstract that such a convention is established in order to avoid unnecessary elections and delay, the risk of failure through the mechanism described in the previous paragraphs significantly limits its desirability in practice unless the lacuna is removed. This is emphasised by the fact that, by its nature, each succeeding attempt at the formation of a government is increasingly likely to fail.
Finally, some have expressed doubts whether an ‘interim’ Prime Minister may request for a dissolution absent a formal loss of confidence. This would arise if it becomes clear that there is no majority to be found before Parliament returns and that a dissolution would be necessary. Nonetheless, given the fact that the restrictions on an ‘interim’ premiership is governed by convention and otherwise legally indistinguishable from an ordinary administration, the preferable legal position would be that the power to request exists and that a dissolution can be granted, but the King can exercise the discretion to refuse on bases analogous to the ‘Lascelles principles’ where appropriate.
V. WHAT’S NEXT?
These uncertainties are the direct cause of an attempt at the codification of political processes. It is unlikely that the Reid Commission envisaged the possibility of the present circumstances in their drafting of the Merdeka constitution, especially in relation to the heavily fractured political landscape dependent on the formation of a coalition.
Consequently, we are forced to place reliance on an undetermined mixture of legal rules, conventions, general prudence on the part of political actors and, as has been seen, the Palace. Such indeterminacy is unsustainable for subsequent practice notwithstanding the low probability of recurrence. We can only hope that the events of the past have forced greater consideration for the conventionalisation of political practice — allowing for greater predictability for future eventuality that history repeats itself.
Written by Shukri Shahizam, LL.M Candidate, University of Cambridge.
Edited by Nurul Zafirah Jaya
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
*LLM Candidate, University of Cambridge. Many thanks to Tan Kian Leong, Netusha Naidu, Marcus Lee Min Lun, and Hannah Haslimi for their useful feedback at such short notice. All errors and omissions remain mine.
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 Mohd Zuki Ali, “Kenyataan Media YAB Tun Dr Mahathir Bin Mohamad Sebagai Perdana Menteri Interim”, 24 Feb 2020, 27 Feb 2020 <https://twitter.com/JPenerangan/status/1231902304820809728>.
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 Zambry bin Kader v Nizar bin Jamaluddin  5 MLJ 464.
 Anne Twomey, The Veiled Sceptre (CUP 2019), ch 4.
 Philip Golingai, “Interview with Shad Saleem Faruqi: The Constitution, the law and the PM”, The Star, 11 Aug 2019, 27 Feb 2020 <https://www.thestar.com.my/opinion/columnists/its-just-politics/2019/08/11/the-constitution-the-law-and-the-Prime Minister>.
 Malaysiakini, “AG: No time limit for interim PM, cam appoint cabinet members”, 24 Feb 2020, 27 Feb 2020 <https://www.malaysiakini.com/news/512090>.
 Abdul Aziz Bari, Cabinet Principles in Malaysia: The Law and Practice, (Selangor: Univision Press, 1999), ch 4; Tsun Hang Tey, “Malaysia’s Electoral System: Government of the People?”, (2010) 5(1) Asian Journal of Comparative Law 1, 33; Shad Saleem Faruqi, “Discretionary powers of the King”, The Star, 27 Apr 2017 <https://www.thestar.com.my/opinion/columnists/reflecting-on-the-law/2017/04/27/discretionary-powers-of-the-king-within-a-narrow-field-the-constitution-places-on-the-shoulders-of-t> accessed 27 Feb 2020; Mohd Norkhairi v Ketua Polis Negara  8 MLJ 741, .
 Bernama, “Agong adakan pertemuan dengan 222 Ahli Parlimen”, 25 Feb 2020, 27 Feb 2020 <https://www.bernama.com/bm/am/news.php?id=1816327>.
 Shad Saleem Faruqi, Our Constitution, (Selangor: Sweet & Maxwell, 2019), at 195.
 Peter Crook, “Sim Kie Chon v Superintendent of Pudu Prison: The Royal Prerogative of Mercy” (1986) 13 Journal of Malaysian and Comparative Law 195, 204.
 See footnote 5 at pp. 410-413.
 Lim Wei Jiet, “Explainer: What’s Going On in Malaysia’s Game of Thrones?”, New Naratif, 25 Feb 2020, 27 Feb 2020 < https://newnaratif.com/journalism/explainer-whats-going-on-in-malaysias-game-of-thrones/>.
 Senex (Sir Alan Lascelles), “Dissolution of Parliament: Factors in the Crown’s Choice”, The Times, 2 May 1950.