Can the King appoint an ‘Interim’ Prime Minister?

In short, No. Why?

[1].  There is no such thing in the Federal Constitution

The only provisions in the Federal Constitution that deal with the ‘appointment’ of a ‘Prime Minister’ occurs in Articles 40(2) and 43.

All the powers of appointment of a prime minister are to be found there.

[2].  The incumbent Prime Minister’s position has been in jeopardy for a while now…

Ever since Muhyiddin Yassin took over as Prime Minister on 1 March 2020, as a result of the Sheraton Hotel move on 28 February, there  have been a constant flux in the number of MPs who had supported – then deserted – and then re-joined, him.

In the last fortnight, despite furious negotiations, his position as Prime Minister has become almost untenable.

If so, and he is forced to resign, can the King appoint an ‘Interim prime minister’?

[3].  How does the constitutional appointment mechanism work?

This is how the constitutional process works:

(a).      there must be an election, through which all members of the House of Representatives, the Dewan Rakyat, are elected.

(b).      only an MP of the House of Representatives, or the Dewan Rakyat, is qualifies as a potential candidate for prime ministership. Only he or she is entitled to participate in the ‘selection’ process.  A member of the Senate does not qualify to be a PM-candidate; but the latter may qualify to be a Cabinet-candidate.

(c).      the PM-Candidate has to show some proof to the King that at least 112 or more MPs support him. This is because the Federal Constitution requires ‘a majority of the MPs’ to support the candidate: [under Article 43(2)].

(d).      the candidate then seeks the King’s audience.

Think on this: what if the King refuses an audience? Mahathir complains that that happened to him on the early days of March, 2020.

Well, under the law, the King cannot refuse an audience to a candidate who passes the Constitutional test in Article 43(2).

[However, as far as the Mahathir complaint went, the alternative hypothesis was that his grievance had nothing to do with the monarch. On February 28th, 2020, Mahathir had resigned. The Cabinet suffered its demise when PM Mahathir left the field unattended.  It would be rather odd for him to say that he wished to be considered as a candidate only days later. but we digress.]

(e).      the King, having satisfied himself that the candidate is ‘likely to command the confidence of the majority’ of the MPs in the Dewan Rakyat, must appoint him or her as the Prime Minister.

So, in conclusion, first, there is an ‘election’, resulting in a candidate’s ‘selection’, and ending in the  PM’s ‘appointment’.

[4].    Once appointed, the PM’s office cannot end, unless certain events occur:

A prime minister’s office ceases if he dies, is  incapacitated, or loses majority support in the Dewan Rakyat, or if his maximum duration of five years has passed, or if an election is called and another candidate is appointed.

[5] The Constitution does not recognise any ‘Interim Prime Minister’

The Federal Constitution itself does not authorise or recognise the position of any ‘Interim PM.’

There are also no Parliamentary laws that allow this.

[6].  The heart of Articles 40(2) and  43(2)(a)

Again, the King has no power to appoint any Prime Minister, ‘interim’ or otherwise, unless the conditions of Article 43(2)(a) are fulfilled: and the beating heart of those Articles, especially Art 43(2) concerns the ‘confidence’ of a majority of MPs in the Dewan Rakyat.

This is what the Articles 40(2) and 43 say:

‘Article 40.    The King to act on advice’

 Art.40. (2).     The Yang di-Pertuan Agong may act in his discretion in …(a) the appointment of a Prime Minister; …’.

‘Article. 43.   Cabinet’

’43(1).      The Yang di-Pertuan Agong shall appoint a Jemaah Menteri (Cabinet of Ministers) to advise him in the exercise of his functions.

‘(2).      The Cabinet shall be appointed as follows, that is to say:

‘(a) .     the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet 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; and

‘(b) .     he shall on the advice of the Prime Minister appoint other Menteri (Ministers) from among the members of either House of Parliament;…’.

There is nothing there about the appointment of an ‘Interim Prime Minister’.

[7].  But there is such thing as a ‘Caretaker PM’

However, when Parliament is dissolved, the incumbent PM continues in his position until a new prime minister is appointed.

Until such time he is replaced, he acts as a ‘Caretaker Prime Minister’.

Where does the authority for that practice come from?

It is not in the Constitution.

This is a widely accepted, long-standing, UK convention that is followed across modern democracies all over the world.

This convention is also followed in Malaysia.

[8].  ‘Constitutional Offices’

Some offices held by the leaders of this nation are creatures of the Constitution.

These are known as ‘Constitutional Offices.’

Examples of these include the position of the King, the office of the Speaker of Parliament, the judges of the judiciary, the Prime Minister, the ministers of the Cabinet, and the Attorney General.

Their respective appointments – and resignations – are dependent on constitutional authority.

If there is no power to appoint a person to a non-existent post, His Majesty cannot  create or appointment any person to such a post.

[9]. So, therefore ….

Unless the Constitution  makes provisions for it, His Majesty the King, the Prime Minister, the Cabinet, or the political parties acting in concert, cannot create a post that does not exist in the Constitution.

There is no such thing as ‘Interim Prime Minister’.

 

 

 

 

[The author expresses his gratitude to the unceasing and often Olympian efforts of the Japanese artist, En. Samad Hassan, KN Geetha, JD Prabhkirat, GS Saran, Wan Nursalena Wan Abdullah, Ezra Ponnudurai, Nathan Sithambaram and Rajan Ratna Kumar].

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