What options are open to the King?
The nation is on tenterhooks. The Prime Minister has resigned. He has been reappointed an ‘interim PM’. No coalition can be formed. What will the King do? What options are before His Majesty? Currently, the King is interviewing every MP personally. He wants to determine each one’s stand. Will this MP support the one coalition or the other? Does the MP think a snap poll is inevitable? Is this a mere courtesy, or a legal necessity? Does the King need to trigger fresh elections?
An Opposition Group is bent on changing the government
The King has a number of choices before him.
Changing the government is not one of them.
Is the Government still in danger?
Since last Friday an Opposition Group has been frenetically sowing confusion. It intends to destroy the government, weaken it, and seize control, and allow kleptocrats, certain persons, to escape the clutches of the criminal law. In this, they were almost successful. The Sarawak Report has all of that: (see here).
Some cool heads prevailed.
The King was the coolest.
The people’s fear
In the wake of the stench of betrayal, an Opposition Group is busy sowing fear in the heart of Malaysians.
That Opposition Group now threatens that it is working to make up that Magic Number of MPs.
It wants to storm the gates of the palace.
It wants to ‘change’ the mind of the King.
Can the King change his mind?
The answer lies in the constitutional power that the King holds; and how he can exercise it – and importantly, how he should withhold from exercising it.
Article 43 of the Constitution
First up, Article 43(2)(b) says that King,
‘… shall on the advice of the Prime Minister appoint a Cabinet of Ministers to advise him on the exercise of his functions.’1Article 43(2) reads: ‘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; but if an appointment is made while Parliament is dissolved a person who was a member of the last House of Representatives may be appointed but shall not continue to hold office after the beginning of the next session of Parliament unless, if he has been appointed Prime Minister, he is a member of the new House of Representatives, and in any other case he is a member either of that House or of the Senate.’
What is the function of the King?
That is in Article 39. It is the power to rule the country.
Article 39 says, ‘the executive authority of the Federation shall be vested in the King… and exercisable, by him or by the Cabinet…’.2 Article 39 reads ‘The executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and exercisable, subject to the provisions of any federal law and of the Second Schedule, by him or by the Cabinet or any Minister authorised by the Cabinet, but Parliament may by law confer executive functions on other persons.’
So, the power to rule the country lies in the hands of the King. The PM and the Cabinet help the King do it.
How does the King appoint the Cabinet?
It is a two-stage process.
First-Stage: appoint a Prime Minister
First, under Article 43(2)(a), the King must ‘first’ appoint a Prime Minister.
Without appointing a prime minister there can be no Cabinet. But how is the King to appoint the prime minister?3Article 43(2)(a) reads ‘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 …but if an appointment is made while Parliament is dissolved a person who was a member of the last House of Representatives may be appointed but shall not continue to hold office after the beginning of the next session of Parliament unless, if he has been appointed Prime Minister, he is a member of the new House of Representatives, and in any other case he is a member either of that House or of the Senate.’
Article 43(2)(a) says the King shall:
‘[First] appoint as Prime Minister to preside over the Cabinet … a member of the House of Representatives (Dewan Rakyat) who in his judgement is likely to command the confidence of the majority of the members of that House.’
Those words are crucial. They have legal consequences. Why?
Three points – the first is the phrase, ‘in [the King’s] judgement’
The first is the phrase, a PM, ‘who in [the King’s] judgement.’
So, to appoint a PM the King has to exercise his personal judgement.
It is his judgement that matters. What factors influence that choice?
Second, King to follow the Rule of Law
Next, that personal judgement of the King is not based on His Majesty’s likes or dislikes. It is based on rules of law [see here]. And we ground it on the King’s Oath of Office.4Article 37(3), Fourth Schedule, Part III
By his Oath, the King promised two things. First: –
‘We shall justly and faithfully perform our duties in the administration of Malaysia in accordance with its laws and Constitution.’
‘Further, We do solemnly and truly declare that We shall at all times… uphold the rules of law and order in the Country.’
Therefore, the King must act in accordance with the law and within the Constitution.
The third important phrase is, the proposed PM must be one who ‘commands the confidence of the majority of the members of the House of Representatives [Dewan Rakyat].’
The day the Opposition shot itself
The day before yesterday, the Opposition Group shot itself in the foot. They went to the King and gave him a list of MPs. They said these were in the majority in the Dewan Rakyat. This ‘majority’ wished to have Mahathir Mohamad as the Prime Minister.
Yesterday, when Lim Guan Eng, Anwar Ibrahim, and Mohamad Sabu joined forces, they were slightly short of a simple majority.
This was after Azmin and his cohorts leapfrogged to the Opposition.
So, the King had in his hands, yesterday, a list from the Opposition – said to be from the majority of MPs. Add to that the 100 MPs from the surviving Pakatan Harapan faction.
The King was advised that at least 150 MPs supported Mahathir as Prime Minister. The actual number may be larger.
Two vital points which the King considered yesterday before appointing Mahathir
The King considered two vital points before re-appointing Mahathir.
The first was ‘in [the King’s] judgement.’
He has already exercised it.
The one word the Opposition completely missed
The second is the word, ‘likely.’ The relevant Constitutional article says,
‘The King shall first appoint as Prime Minister to preside over the Cabinet a member of the House of Representatives who in his judgement is likely to command the confidence of the majority (of that House).’
The word, ‘likely’ occurs in the phrase, ‘likely to command the confidence of the majority of the MPs.’
It is not necessary for Mahathir to in fact command the confidence of the Dewan Rakyat.
It is enough if the King thinks that Mahathir is ‘likely to’.
Using those powers, the King has already appointed a prime minister
Ministers hold their positions at the pleasure of the King.5Article 43(5)
The moment Mahathir resigned yesterday, by convention, the Cabinet had to resign.6 The second situation in which the Cabinet has to resign is when the Prime Minister ceases to command the confidence of the majority of the members of Parliament. That phase is over.
The law does not recognise the word, ‘interim’
Either the King had appointed Mahathir as a prime minister, or he had not. As the King had appointed Mahathir, there is no question of Mahathir being an ‘interim’ prime minister. The popular press seems to think the word ‘interim’, means Mahathir’s appointment had been a temporary one, pending the happening of some future event.
There are only 5 events that can remove Mahathir as PM:
(1) Mahathir resigns,
(2) the King fires Mahathir,
(3) Mahathir becomes incapacitated;
(4) the King dissolves Parliament; or
(5) the King calls for general elections.
So Mahathir is free to exercise his constitutional powers as PM – there is nothing ‘interim’ about it
Until any of those five events occur, that Mahathir is called the ‘interim’ PM makes no legal difference. The Federal Constitution has no provision for the existence of an ‘Interim’ prime minister.
Since he is the PM, Mahathir can – and must – exercise his constitutional powers open to him.
The Second Phase now takes over
Now that the King has re-appointed Mahathir, the Second Phase takes over.
In phase two, the King exercises his limited powers under Article 43(5) and ‘revokes the [former] Cabinet’ on the advice of his new Prime Minister.7Article 43(5) reads ‘Subject to Clause (4), Ministers other than the Prime Minister shall hold office during the pleasure of the Yang di-Pertuan Agong, unless the appointment of any Minister shall have been revoked by the Yang di-Pertuan Agong on the advice of the Prime Minister but any Minister may resign his office.’
Mahathir can now form a new Cabinet
The door then becomes open for the ‘new’ PM to advise the King to appoint a new Cabinet.
So Mahathir now has to give a list of proposed ministers to the King.
The Constitution says that the King must accept Mahathir’s list. When the King acts ‘on the advice of the PM’, the King has no choice: [Article 40(1A)]. 8Article 40 states: ‘The Yang di-Pertuan Agong to act on advice’ and … Article 40(1A): In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.’
Since Mahathir is now the current PM, all other considerations are put in abeyance.
This brings us to the next issue.
The King has absolute discretion on two issues
The King has, under Article 40(2), an almost absolute discretion to do two things:
(1) to appoint the Prime Minister;
(2) to refuse the dissolution of Parliament.
This is how those words appear in the Constitution:
‘The (King) may act in his discretion in the performance of the following functions, that is to say:
(a) the appointment of a Prime Minister;
(b) the withholding of concern to request for the dissolution of Parliament.’ 9Article 40(2) reads ‘The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say: (a) the appointment of a Prime Minister; (b) the withholding of consent to a request for the dissolution of Parliament; (c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting, and in any other case mentioned in this Constitution.’
That power is re-emphasised in Article 55(2). It says,
‘[The King] may prorogue or dissolve parliament.’ 10Article 55(2) reads ‘The Yang di-Pertuan Agong may prorogue or dissolve Parliament.’
So, in these two aspects – the appointment of the Prime Minister, and the dissolution of the Parliament – the King has almost absolute power.
The King is in [almost] total control
Since the King has this [almost] absolute power, he is not a King only in name. The power to run the nation lies quietly in the hollow of his palm.
But you see, His Majesty has already handed this power over to Mahathir.
So the Mahathir appointment is not up for another discussion
The moment the King makes a decision, it cannot be recalled unless the circumstances change. A King who changes his mind twice a week will injure the nation. The Opposition Group, and the surviving Pakatan Harapan have, in different ways, informed the King that the interim Prime Minister Mahathir Mohamad has their confidence. So that decision is not any longer up for discussion.
Numbers don’t matter now…
Therefore, any number of people gathered before the palace, should not, in practical terms, make any difference to the King.
It is that ‘constitutional moment’ the King makes a decision that is crucial.
That moment has passed.
The King has made up his mind, and that’s the end of it.
He cannot be expected to change his mind with every meal.
So it is not a good idea to revisit the PM’s re-appointment
As the King has already exercised the first part of the power, and has appointed a Prime Minister, that is no longer a ‘live’ issue.
Mahathir’s position is unassailable until the next elections.
Since his position is invulnerable, Mahathir can now appoint anybody he wants into the Cabinet.
The King should not change his mind easily
In exercising his powers as King, the monarch cannot willy-nilly change his mind. That is not good for the country.
Is there still a government?
As of Sunday, after the shenanigans of the Opposition Group, and after the resignation of the then Prime Minister Mahathir, for a short time, there was no government.
But the moment Mahathir Mohamad was re-appointed, a new government was born.
What happens if the Opposition Group goes to the King with a new list?
They may ask the King to exercise his powers under Article 43(2).
They may ask the King to kick out the ‘interim’ Prime Minister.
They may request that the King appoint Mr X as the new prime minister.
The problem is, they had already given the King a long list of MPs.
These MPs had sworn, through their statutory declarations, that Mahathir was their choice.
Having shot themselves in the foot, the Opposition Group would look silly if they nominate another candidate.
If they say they had ‘changed their minds’, it reeks of, well, untruths being spoken to the King. Not good.
Can the King change his mind? What choices now confront the King?
Suppose the Opposition Group pushes on, regardless? What happens?
If that happens, the King must consider certain crucial facts – what are those?
There are powerful reasons why the King is unlikely to change his mind
. The economy will suffer
At a time when the entire world is in a financial crisis, this is not the time to rock the boat. And we are a tiny boat in the maelstrom of a turbulent financial ocean.
. Elections are only a short time away
This is just under three years. The last election was on 9 May 2018. Parliament lives for 5 years from the date of its First Meeting: [Article 55 (3) of the Constitution] 11Article 55(3) reads ‘Parliament unless sooner dissolved, shall continue for five years from the date of its first meeting and shall then stand dissolved.’
That was on 16 July 2018. Remember the fracas the Opposition created on that day? (See here).
Parliament will automatically dissolve after five years on 16 July 2023. Only a short time is left until 16 July 2023. This is no time to be hasty and cause uncertainty.
. Hesitance to depart from the Electoral Mandate of the People
The King cares deeply for his people. Therefore, he is unlikely to do anything that is against the electoral mandate given to the new government on 10 May 2018.
The people, despite massive gerrymandering, had come out in droves to vote. They said they want the kleptocrats out.
Some, accused of these, now stand before the courts. Other suspects are, as we speak, about to be charged, or are in the process of being investigated.
. The Palace must point Opposition leaders to High Moral Ground
To change the government now and to hand over its reins into the hands of the previous regime of kleptocrats, the indolent, the Fat Cats and Rent Seekers – now, that would not look good at all.
Patriot, a group of loyal ex-soldiers, said that ‘the unholy attempt to form a backdoor government is a betrayal of the people’s mandate’. (See here)
. No other leader of sufficient stature
The crucial question before the King would be, is there, apart from Anwar Ibrahim, any other leader of sufficient maturity and class to lead the nation in these troubled times?
To be fair to him, the PM-in-waiting, Anwar Ibrahim, appears to have subordinated his personal ambitions for the greater good and put the well-being of the nation first.
He has informed the King that he is quite prepared to wait for his turn – no matter how long it takes.
Therefore, the current vacuum can only be filled by Mahathir Mohammed. And it has already been filled.
. Should not encourage the Rakyat to take to the streets
And finally, who is to say that the people might not mount a massive public dissent to thwart these machiavellian machinations?
Patriot, a group of loyal ex-soldiers, has lobbed a shot across the bows. If no one will move, it says it will.
. The Opposition Group are not saints
The King cannot possibly see a good choice among the Opposition.
The Rakyat, in their minds, would consider it pretty silly if the Opposition Group turns up at the palace, waving their flags and statutory declarations.
These are badges stained with the stench of disgrace and betrayal.
The choices before the King are simple.
A prime minister has been appointed. His appointment is constitutionally valid.
He has sufficient experience.
Let him do his job.
It is too early for a general election. And an election is a massively expensive exercise.
Mahathir cannot be forced into an alliance with members of the previous regime.
This will be pandering to kleptocrats. When one sups with the Devil, one must use long spoons.
Mahathir’s cabinet must have good people.
The ‘Perak exercise’
To use the ‘Perak exercise’, to test the MPs one at a time, is to step outside the King’s constitutional powers.
This is not a legal necessity. The Constitution does not require it.
As for dissolving Parliament: that is the King’s personal prerogative under Article 40(2)(b).
It is the power to refuse. Think about it.
No one has formally asked the King to dissolve Parliament.
And so he does not have to give anyone any answer: not yet.
So at this stage, the King is not required to consult anyone, and least of all, the Opposition Group.
One assumes therefore that the ‘royal interview’ is nothing more than a mere courtesy.
[The author expresses his gratitude to Ms. KN Geetha, Mr. JD Prabhkirat Singh, Mr. GS Saran, Miss KP Kasturi and Ms.Kamatchy Sappani for their assistance.]