Could the King have refused to dissolve Parliament?

The answer is, Yes.

 

[1] Introduction

This answer raises other questions, for instance: –

[Q-1].​    Can the King dissolve Parliament? [The answer is Yes].

[Q-2].​    What factors apply in the exercise of the King’s discretion?

[Q-3].​    On what grounds can the King refuse to dissolve Parliament?

[Q-4].​    Should the King refuse dissolution?

Let us take this step-by-step.

[2] What is the King’s role?

The Constitution gives the King ‘executive authority’ over the Federation.

What does this mean?

On paper, the King ‘rules’ the country. The King does not ‘rule’ directly, but through an elected group of MPs, some of whom make up the Cabinet.

It is the Cabinet that ‘advises’ the King how to ‘exercise’ the King’s ‘functions’.

Originally, clause 1 of Article 40 states that:

‘… in the exercise of his function’, the King ‘shall act in accordance with the advice of the Cabinet’.

The word ‘shall’, means, the King must do what the Cabinet says.

He has no choice.

[3] Is that true?

There is a catch to this.

To appreciate the ‘catch’, you need to read the entire sentence in clause 1 of Article 40.

It states:

‘In the exercise of his function … the [King] shall act in accordance with the advice of the Cabinet…, except as otherwise provided by this Constitution; …’

The catch is in the word, ‘except’, in Article 40(1).

We will come to that shortly.

[4] Does the King have the power to dissolve Parliament?

The answer is, Yes.

Clause 2 of Article 55 gives the King that power. It reads:

‘The [King] may …dissolve Parliament.’

The word ‘may’ means the King has a ‘discretion’: He may dissolve Parliament. Or he may not.

[5] Mahathir Amendment

Mahathir’s first term as Prime Minister, which lasted 22 years, was from July 1981 to October 2003.

Mahathir wished to add greater powers to the office of the Prime Minister. In 1994 he had the backing of two-thirds of Parliament. So, in June 1994, he caused the insertion of an extra clause into Article 40. It was the new clause 1A.

The effect of the additional clause 1A was that, if the Cabinet ‘advised’ the King to do something, the King was required to accept the Cabinet’s advice.

He could not reject it. He had no choice in it.

Additional clause 1A reads:

‘In the exercise of his functions … where the ‘King’ is to act in accordance with advice, on advice, or after considering advice, the ‘King’ shall accept and act in accordance with such advice.’

Let us call that clause the ‘do-as-the-PM-says-clause’.

[6] But 1994 amendment did not touch two ‘escape’ clauses in the King’s favour

The first ‘escape clause’ in favour of the King was the ‘catch’ in clause 1 of Article 40.

It had the word, ‘except’.

Clause 1 article 40 reads:-

‘In the exercise of his function … the [King] shall act in accordance with the advice of the Cabinet…, except as otherwise provided by this Constitution’.

The second ‘escape’ clause – which Article 40(2) – gives three extra powers to the King:

‘… The [King] may act in his discretion in the performance of the following functions, that is to say…’

Then the clause lists three powers.

The First Power was the King’s ‘discretion’ in the appointment of the Prime Minister.

The Third Power concerned the King’s right to call for a meeting of the Conference of Rulers.

That leaves the Second Power.

The Second concerned the King’s power to deal with the Cabinet’s request to dissolve Parliament.

Clause 2(b) of Article 40:

‘… The [King] may act in his discretion  in the performance of the following functions, that is to say:… (b)… the withholding of consent to a request for the dissolution of Parliament’. 

Again, the word ‘may’ appears in Article 55(2), which states that,

‘the [King] ‘may … dissolve … Parliament’.

The word ‘may’ in these two escape clauses show that the King has a ‘discretion’.

[7] What is a ‘discretion’?

A ‘discretion’ is ‘the freedom to decide what should be done in any particular situation’.

Thus, if we read cause 2(b) of Article 40, if the King was asked to dissolve Parliament, he has the freedom to refuse it – outright.

The Cabinet can do nothing about it.

[8] But, is the King’s ‘discretion’ absolute?

For instance, could the King refuse to dissolve Parliament, for say, the next five years?

[9] We start with a well-known, but important, principle of law:

When the King has a discretion, he cannot do what he likes.

The King must exercise his ‘discretion’ rationally.

He must exercise it within his powers in the Constitution.

The King must exercise his discretion in a way that does not offend any other provision of the Constitution.

[10] So the King’s discretion is limited in several ways

The first limitation is as to time.

Under of Article 55(3), the duration of Parliament’s life is five years,

‘from the date of its first meeting’.

After that date, the Constitution says Parliament

‘…shall then stand dissolved’.

[11] When did Parliament have its ‘first meeting’ after the May 2018 elections?

It was on 16 July 2018.

Add five years to that. So, Parliament can continue until 15 July 2023.

On 16 July 2023, Parliament shall ‘stand dissolved’. So the King cannot refuse a dissolution for five years. The King’s discretion will end on 15 July 2023.

[12] What ‘other factors’ could influence how the King exercises his discretion?

First, remember that under clause 4 of Article 55, when Parliament is dissolved, a general election must be held within 60 days from the date of Parliament’s dissolution.

[13] Use 15 October 2022 as an example

If Parliament is dissolved on 15 October 2022, then elections must be held by 14 December 2022.

Under the same clause, the next Parliament must be convened within 120 days from the dissolution: by 12 February 2023.

[14] Why is it crucial to set the right time for election?

The North-East Monsoon visits Malaysia, from November to March, every year.

During this period, different parts of Malaysia face heavy floods.

The most affected parts are East Malaysia and some parts of the East and South of Peninsular Malaysia.

If Parliament is dissolved in October or November of this year, elections must be held within 60 days: latest by December 2022 or January 2023.

Then elections will fall right in the middle of the North-East Monsoon.

Some voters in other parts of Malaysia not prejudiced by the North-East Monsoon can cast their votes with relative ease.

But those in East Malaysia and in the East Coast or south of the Peninsular, especially in Pahang, will be prejudiced.

The voters there will not enjoy the same advantage as the voters who live in the comparatively drier areas.

[15] Is the right to vote guaranteed by the law?

Under Article 119, every citizen who has attained the voting age is guaranteed the right to vote in his or her designated constituency.

Again, Clause 1 of Article 8 states that:

‘[All] persons are equal before the law and entitled to equal protection of the law’.

During November to March, citizens in flood-prone areas will have lost their ‘equal opportunity right’ to vote.

[16] The King has the chance to ensure that his citizens’ constitutional rights to vote is protected

The King can uphold equal voting rights by withholding his permission to dissolve Parliament.

His Majesty should ask the Election Commission to hold the election after the North-East Monsoon ceases.

[17] The best time for elections would be any time beginning April 2023

If the King exercises his discretion under clause 2(b) of Article 40 – correctly – then Parliament could be dissolved in March 2023.

Elections can be held by the end of May 2023.

And the new Parliament can be convened, in the usual manner, latest by July of 2023.

The question is, what will His Majesty the King do?

 

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