Choosing the prime minister

EVEN as opposition leader Datuk Seri Anwar Ibrahim stumbled in his quest to unseat the government by 16 Sept 2008, the likelihood of a change in government lingers palpably. Questions now abound about how exactly Anwar can achieve forming the next government.

Some legal experts have said a vote of no-confidence in Parliament against the sitting prime minister, Datuk Seri Abdullah Ahmad Badawi, is the Pakatan Rakyat leader’s only recourse.

Lawyer Tommy Thomas tells The Nut Graph what methods are constitutionally available for a change of premier. The constitutional lawyer explains the legal principles involved, stressing that blocking a vote of no-confidence in Parliament against the prime minister — which has happened twice already — is unconstitutional, as are attempts to detain Anwar or any other member of parliament (MP) at this juncture.

TNG: What are the legal principles established by the three cases: Stephen Kalong Ningkan (1966); the Privy Council case (Nigerian case: Adegbenro vs Akintola in 1963); and 1994’s Datuk Amir Kahar Mustapha vs Tun Mohd Said Keruak, which involved former chief minister of Sabah Datuk Joseph Pairin Kitingan resigning from his post?

Tommy Thomas: The legal principles established by the cases are this: In the Stephen Kalong Ningkang case, the court said, the only way to test confidence is by a lower house vote. That is the legal principle. So it is confined to one method only. In the Privy Council case from Nigeria and the Pairin Kitingan case, there was no lower house vote. Yet the courts said in both cases, the governor acted correctly. That’s the principle to be drawn.

So the three reported cases we know of [involved] governors (the Sabah and Sarawak Yang diPertua’s powers are similar to a governor’s). Yet none of them is the decision of the head of state or a constitutional monarch. I personally know of no [such] cases.

So, in the Malaysian context now, there are no precedents to guide us?

Going by Article 43(4) [of the Federal Constitution], although in our 51^st year of existence, Malaysia is entering into uncharted waters but it doesn’t mean a Malaysian constitutional lawyer is bereft of examples. Malaysian constitutional law follows British constitutional law [in that the king or queen appoints the prime minister]. And not just the UK, but the major or mature Commonwealth countries — Canada, Australia, New Zealand and India — follow British constitutionalism.

My point is the Yang diPertuan Agong has very similar powers to Queen Elizabeth II. So, the precedent would be what the Queen of England, and the previous monarchs, have done in the past. Those are constitutional conventions, and they would guide you.

Queen Elizabeth II in 2007 (Public domain)And applying that, to my knowledge, the monarch’s decision in England to appoint so-and-so as the prime minister — Mr X as opposed to Mr Y — has never been challenged in the courts. These decisions are called non-justiciable — you cannot take this matter to court. 

Is this by convention?

It’s a principle of law. And that’s because the monarch’s power to appoint the prime minister is what is known as a royal prerogative. It’s like the question of mercy, pardon and giving honours — all these are examples of royal prerogative. So if, for example, you didn’t get a Tan Sri-ship, you cannot go to the courts and say, “Judge, give me a Tan Sri-ship.” Or if you have a Tan Sri-ship, you cannot go to court and say, “I want a Tun-ship.” Some disputes are just not suitable for legal solutions.

But in this particular case, even though it is the monarch’s prerogative, he or she is guided by certain conventions.

Yes, conventions or precedents. [But] when they exercise their conventions, if they exercise it “wrongly”, it has never been taken to court.

Has it been in the past?

Never. Let me give you two real examples. In 1956, when Anthony Eden resigned as prime minister in Britain, Queen Elizabeth II had a choice of either Harold MacMillan or Rab Butler, both from the Conservative Party. She chose MacMillan. So those who supported Butler would say that’s the wrong decision. But did they take it to court? No. They accepted it because that’s the royal prerogative.

Harold MacMillan (Public
domain) Likewise in 1963, when MacMillan himself resigned, again she had a choice of Butler and a few other candidates. She chose somebody from the House of Lords — Lord Sir Alec Douglas-Home. These cases happened fairly recently, not a few hundred years ago.

Now I give you an Australian example. In Australia, the governor-general represents the Queen, who is still the constitutional monarch of the country. The governor-general has tremendous freedom; they have vice-regal powers. The Australian Governor-General Sir John Kerr in 1975 sacked the Labour Prime Minister Gough Withlam and appointed the leader of the opposition party, Malcolm Fraser, as caretaker prime minister. The entire Labour party was very angry, but they didn’t challenge this in court.

Malcolm Fraser, caretaker prime
minister of Australia in 1975
(Public domain) So the head of state’s decision is respected?

The conventional theory is that the person making the decision — the head of state — is supposed to look after the affairs of the nation in times of crisis. This person is above partisan politics and is concerned for the nation. The ruler embodies the nation.

And if you are a popular ruler, like Queen Elizabeth II for example, when she makes such a decision, the country will rally around [her]. Even if they disagree with a particular choice, they’ll say fine, we recognise and respect her decision.

And over here, the king, or the institution of the Agong, has become very popular over the past 51 years. It’s accepted by the country. And the present king, who is from Terengganu, is also popular, as was seen during the struggle over the choice of [the state’s] menteri besar earlier this year (2008). When the Agong arrived in Kuala Terengganu on 29 March, he was welcomed by 10,000 people holding yellow roses.

How do you know that whatever decision made by the King — if he is invited to make that decision and which in his judgment is made for the good of the country — will not be received by millions of Malaysians in the same way? Because millions of Malaysians will say that they are fed up with the politicians fighting among themselves. We have more faith in the institution of the monarchy.

Parliament (Courtesy of Merdeka Review)

Just to clarify, in our Federal Constitution, there are a few ways that the existing government can be changed. One is through the show of no confidence in Parliament, and the other is for the Agong to make a decision if he thinks the present leader no longer enjoys majority support in Parliament. Could you elaborate?

We are invited to interpret Article 43(4) which reads: “If the PM ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang diPertuan Agong dissolves Parliament, the prime minister shall tender the resignation of the cabinet.”

What we are trying to do is find out what is the intention of our founding fathers. That is what the task is all about. How do you interpret those words?

Who are the founding fathers? First, the five members of the Reid Commission — two members from the UK, one from Australia, one from India and one from Pakistan — the senior Commonwealth members. The other group of people are Tunku Abdul Rahman, Tun VT Sambanthan and Tun Tan Cheng Lock.

What we are trying to do is interpret their words, 43(4), with the intention they had in mind. Some legal experts have said it is limited to a poll, a vote of no confidence in the Dewan Rakyat. My argument is that cannot be the intention because if it is so limited, then the language would have been something like this: “If the Prime Minister is defeated on a motion of confidence in the House of Representatives, then…” So you see the opening words of 43(4) and my imaginary version are very different…the actual wording is far more general, broad and wide, whereas the other is specific and limited to one method.

Plus, there’s a fundamental reason [for this]. When countries have written constitutions, the idea is that the written constitutions are meant to last for hundreds of years. It is a serious document. It charts the country’s future. It is what is called a living tree. It has to cater to all kinds of contingencies and crises and emergencies throughout the life of a country.

(From top) Tunku Abdul Rahman, Tun Tan
Cheng Lock and Tun VT Sambanthan: Malaysia’s
founding fathers (All pics public domain)So, the founding fathers used broad words, so that the governments, leaders and people that follow in the future would have some idea of what they intended and would interpret it. We mustn’t forget the purpose of the constitution.

These — the vote of no confidence and the king’s prerogative — are the two known methods.

But the important thing is that it is the king’s satisfaction that matters. The king must be satisfied that the prime minister of the day no longer enjoys the confidence of the majority of the lower house. So what that means actually is that the king cannot act arbitrarily; there must be some objective facts, some proof, some reason for him to act.

And finally it goes back to the question of numbers. We know that the lower house has 222 MPs. To have a simple majority, whoever wants to be prime minister must have the support of 112 people. The king must be satisfied that whoever he is going to invite to form the government enjoys the support of at least 112 members.

How he goes about satisfying himself on this point is up to the king.

Article 43(4) doesn’t make any mention of the methods he could use. Are there any precedents in the UK?

In the UK the Queen talks to people, they have their own soundings. But as to other methods that could be used, one is the declaration in writing, a document containing all 112 signatures. The disadvantage is the possibility of forgeries. How can the Agong be sure that the MPs actually signed the document? So in this case, the Agong may decide that he needs more proof. He may summon them to the palace.

But there could be other methods. It depends on the contingency.

So the methods that the Agong chooses to verify — whether the PM or an alternative candidate has the support or not — is up to him?

Yes.

But at this juncture, it does not seem like the Agong is being called to take on this responsibility.

We don’t know. What I would say is that Datuk Seri Anwar Ibrahim is treading very, very carefully because of the political reality, more than he needs to under the constitution. Because it is a fact, we know, it is public knowledge that the Speaker of the House has turned it (motion to table a vote of no confidence against the PM) down twice. Now, there I say the Speaker is acting unconstitutionally.

What remedy is there?

The remedy is for the Agong to say that he is aware that two motions for a vote of no confidence against the PM were presented to Parliament, and the Speaker rejected them. He can therefore conclude that the Speaker has prevented a voting of no confidence on the floor of parliament. And by such conduct, the Speaker has nullified, thwarted, and foiled the constitutional mechanism. Because 43(4) is there. You cannot thwart a constitutional mechanism. And that’s what he did. He is acting unconstitutionally.

But no other action can be taken against the Speaker.

Tan Sri Pandikar Amin, Speaker of the House (Courtesy of
Merdeka Review)No, because you cannot remove the Speaker — the king cannot remove the Speaker. Nobody can. But what the king can say is, “I am therefore satisfied that that method should not be used in this case. I will turn to other methods.”

So the Barisan Nasional are actually doing themselves a disservice.

Yes.

Because eventually people are going to be frustrated enough, and take notice enough to look at other methods.

Exactly. Constitutional law expert Prof Dr Shad Saleem Faruqi, for example, recommended that Parliament be postponed for six months.

Which is the Prime Minister’s prerogative…

My answer is, that will be unconstitutional in the present circumstances. If you postpone the sitting of Parliament for six months with the objective of preventing a motion of no confidence, that would be unconstitutional. Just like if you detain Anwar Ibrahim today, that would be unconstitutional.

What if he is detained in any case?

In the present climate, it would be an unconstitutional detention. Because the Agong can say that as far as he is concerned, Anwar is a prime ministerial candidate. He may be in the pool of people the Agong may invite to form a new government.

To put it into context, the Agong doesn’t have a free hand. He cannot appoint a senator to be prime minister. It must be a member of the lower house. So that means straightaway the choice is limited to 222 MPs.

What I am trying to say is, the Agong is not a dictator. His hands are tied to picking someone from the 222.

Technically, even if Anwar was under Internal Security Act (ISA) detention, that should not preclude the Agong from saying, “I believe that he has the support”, and still appoint him as prime minister.

Yes. Absolutely. You cannot frustrate the system this way. You cannot detain any of the 222 MPs today because each of them is a voter. Because everybody knows — and the king certainly knows — we are entering into a critical period in the nation’s history: uncharted, unprecedented. That is, there is a possibility of a change in leadership, both within Umno — between Abdullah Badawi and Najib and anybody else — and between the Barisan Nasional and Pakatan Rakyat. And the king knows in those circumstances, he may be invited to exercise the royal prerogative and appoint a prime minister.

You say he needs to be invited. Who needs to do this inviting?

Whoever goes to see him with the numbers. And therefore, the critical players are the 222 MPs because they chart the future. And the Agong can say, I need them all there. You cannot take 10 away or five away from either party.

So within the current circumstances, any kind of detention of MPs under the ISA is unconstitutional.

Yes, in my opinion. The big point to make is, you cannot arrange your affairs — be it the speaker or the prime minister or the home minister — in such a way as to thwart the constitutional mechanism, which has, at the minimum, 222 players (the MPs) and the king. [Among the MPs] is the potential prime minister. [So, the MPs] have special status at this current point of time.

Technically, the prime minister still has the prerogative of delaying parliamentary sitting for up to six months. And he can still go ahead and do that, even though you said earlier that it would be considered unconstitutional.

Well, the Agong cannot stop him. But [the Agong] will know that Method #1 has been frustrated.

Then at that juncture, it is left to the opposition to employ other methods to convince the king?

Yes. And that [same response by the opposition could be used if] the Speaker turns down [yet again] the motion to table a vote of no-confidence.

See also Part I: Najib not assured of prime ministership