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Learn more about new Assembly Act

REFLECTING ON THE LAW


By SHAD SALEEM FARUQI

Previously, everything was prohibited unless permitted. Now everything is permitted


unless prohibited. This is a significant shift in civil rights thinking.
IN early legal systems, the primary end of the law was to keep the peace. In modern legal orders,
a just balance between the might of the state and the rights of the citizens is attempted. No field
better exemplifies the difficulty of achieving this fair balance than Malaysias law relating to
assembly and procession.
The recently enacted Peaceful Assembly Act 2012 has received much criticism in the media and
deserves scrutiny of its high and low points.
Police permit: Previously under Sections 27 of the Police Act, citizens had to apply for a police
permit for gatherings or processions of more than three people.
Under the new Act, there is no requirement for a police permit, but organisers of assemblies must
notify the authorities 10 days in advance under Section 9(1). No notice is required for meetings in
designated places or if the assembly is an exempted assembly.
If in response to a notification the police do nothing, then under Section 14(2) silence is deemed
as consent.
Previously, everything was prohibited unless permitted. Now everything is permitted unless
prohibited. This is a significant shift in civil rights thinking.
No power to ban: Under the Police Act, assemblies and processions could be prohibited outright
or conditions imposed.
The new Act in Section 15 permits the OCPD to impose significant restrictions and conditions
including the date, time and place of the assembly. However, there is no power to issue an
outright No before the assembly takes place.
Time limits: Just as citizens are required to give advance notification of 10 days, the police
response must also be communicated within a stated time limit of five days: Section 14(1). An
appeal to the Home Minister must be decided within 48 hours: Section 16(2).
Designated places: The Act permits the minister to designate places where assemblies may be
held without notification to the police. Critics have charged that this is an attempt to isolate
Opposition gatherings in distant and low-impact places.
This is an overly cynical view. Actually it is a good idea to designate some fields, stadiums and
Speakers Corners for public assemblies.

What would be improper is if the owners of designated places indulged in the selective granting
or refusal of permission. If this happens, judicial review is likely on the (Article 8) principle of
equality or the administrative law principles of reasonableness, irrationality or abuse of power.
Exempted assemblies: This Act does not apply to election campaigns, strikes, lock-outs and
pickets under the Industrial Relations Act and the Trade Union Act: Section 1(3).
It is also inapplicable to religious assemblies, funeral processions, weddings, open houses,
family get-togethers, family days and meetings of societies or associations: Third Schedule
Paragraph 9(2)(b).
The words meetings of societies and associations are very broad and permit vast possibilities.
Right to object: All persons likely to be affected by a proposed assembly have a right to be
informed and to raise objections. In principle this is acceptable.
However, there is a perception that the police may pander to extremist groups; subordinate
minority rights to majority concerns, and discourage lawful but unpopular assemblies. This
perception needs to be proved wrong.
Judicial review: Mercifully, the Act has no ouster clauses for excluding judicial review.
Counter-assemblies: The Act takes admirable note of counter- and simultaneous assemblies,
and seeks to regulate them by giving preference to the assembly first in place. It also provides for
alternative sites, times and dates for the counter- or simultaneous assembly or assemblies.
Spontaneous gatherings: These are not contemplated by the law and are presumably not
illegal.
Involuntary presence: The definition of participant leaves out anyone who is unintentionally or
involuntarily present at an assembly. This will be a useful defence to a citizen who is the subject
of a prosecution.
Despite the above wholesome features, the reformed law still bristles with some controversial
provisions.
Street protests: These are a form of assembly in motion, a procession or a demonstration. They
were permitted (within limits) subject to regulation under Section 27 of the Police Act, but are now
absolutely banned.
Other ambiguous aspects of the law are that a street protest by definition involves walking in a
mass march or rally. So if there is no walking but a motorcade of cars or bikes, that will not be
caught by this law and the authorities may have to use Section 268 of the Penal Code or some
provision in the Road Traffic Act 1987.
Further, although street protests are banned, the Act refers here and there to processions and
assemblies in motion. One has to struggle to understand the distinction between a lawful
procession and an unlawful street protest.

Police discretion: Under the Police Act, police discretion to grant or withhold a permit was more
or less unfettered and the power to impose conditions was very wide, although subject to
occasional judicial review as in Chai Choon Hon v Ketua Polis Kampar (1986) and Patto v CPO
Perak (1986).
Similar to the Police Act, the new law in Section 15 still confers on the men in blue very wide
discretion to impose restrictions and conditions, arrest without a warrant any person failing to
comply with a restriction or condition, or order the assembly to disperse.
It must be acknowledged, however, that such wide discretion is known in other jurisdictions like
Britain, Finland and the state of Queensland in Australia, but subject to external review.
External control: Unlike the recent Security Offences (Special Measures) Act which subjected
the powers of the police and the Minister to judicial control, this Act makes no effort to subject
police discretion to external, non-executive control.
An appeal lies with the minister, which basically means there is an appeal from the executive to
the executive.
Fortunately, however, there is no ouster clause, and judicial review on the first principles of
administrative law is a possibility.
Public places: These are defined too broadly, so they include private places open to or used by
the public by the express or implied consent of the owner or on payment of money. This means
that private premises, hotels and halls to which members of the public are invited or permitted
are deemed public places!
Constitutionality: It remains to be seen whether the courts will review the constitutionality of
some parts of this law. Issues germane for discussion are:
> The total ban of street protests without linking it to public order and national security may well
fall foul of Article 10(2).
> The ban on people under 21 organising an assembly may be challenged as a violation of
Article 10 (free speech) and Article 8 (equality). It is noteworthy that case law has established
that parliamentary restrictions on human rights must be reasonable by objective standards
(Hilman Idham).
> One of the grounds on which the police may exercise the power to regulate assemblies is the
protection of the rights and freedom of other persons (sections 2, 3 and 15). These words of
limitation do not occur in Article 10(2), and may therefore be seen as an extra constitutional
limitation.
In most countries including the US and Malaysia, courts have accepted implied limits on human
freedoms and have often carved out common law restrictions on fundamental freedoms.

In sum, the Act has many wholesome features. But it is defective in that it imposes no objective
restraints on the police and ministerial discretion.
Nevertheless, as judicial review is not excluded, courts may provide a proper balance between
police powers and fundamental freedoms. Whether the courts will play such a balancing role
remains to be seen.

Enhancing Senates power


REFLECTING ON THE LAW
By SHAD SALEEM FARUQI

The Dewan Negara has the important federal function of representing the states.
Regrettably, a number of factors have contributed to the diminution of this role.
LAST Saturday a seminar was held in Parliament to examine Dewan Negaras functioning with a
view to improving its institutional efficacy.
To begin with it must be stated that in our system of government the fully elected and
representative Dewan Rakyat is the main channel of democratic impulses in the country.
The Dewan Negara, in contrast, represents geographical areas and special interests rather than
the voters. Under Article 45 of the Federal Constitution it consists of appointed as well as
indirectly elected senators as follows:
> Forty-four senators appointed by the King on the advice of the Prime Minister, and
> Twenty-six indirectly elected state senators (elected by the state assemblies) to give equal
representation in the Dewan Negara to each of the 13 states of the federation.
Role: The Federal Constitution and the Standing Orders of the Senate envisage the following
functions for the Senate:
> The legislative function of making and revising laws;
> The federal function of representing the 13 states and the federal territories;
> The sectoral representative function of enabling experienced and talented persons, members
of minorities and orang asli to sit in Parliament without going through the electoral process;
> The deliberative function of examining government policy and keeping the government in
check;
> Control of emergency powers;
> Protection of Malay Reserves: and
> Exercise of parliamentary privileges.
Legislative function: The Dewan Negara is an essential component of Parliament and, except
under Article 68, its assent is necessary for the passage of all legislation in Parliament.
The Dewan Negara can revise, improve or delay Dewan Rakyat Bills. As a second debating
chamber it can act after mature, non-political and calm consideration. Because it operates in a
less political way than the Dewan Rakyat, a more objective examination of legislative proposals
is possible.

If there are unresolved differences between the Senate and the Dewan Rakyat, then under
Article 68, the Dewan Rakyat can bypass the Senate after one month (in the case of money Bills)
and no less than one year (in the case of non-money Bills).
However, Article 68 cannot apply to those constitutional amendments that require a two-thirds
majority in both Houses of Parliament.
Representing the States: The Dewan Negara has the important federal function of
representing the states of the federation and protecting their rights. This aim is achieved by
providing for two members from each state to sit in the Dewan Negara.
Regrettably a number of factors have contributed to the diminution of this role.
First, state senators do not always speak and vote as instructed delegates of the states. They
act according to party affiliations. A greater coordination between state senators and state
governments is necessary if the voice of the states is to be effectively heard in the Dewan
Negara.
Second, in the Merdeka Constitution, state senators outnumber appointed senators by 22:16.
Regrettably, constitutional amendments since then have allowed the present 26 state senators to
be overwhelmed by 44 appointed senators.
Such an unfavourable ratio between elected and appointed senators is not conducive to
democratic legitimacy.
The validity of amendments to the Senates composition to allow nominated members to
outnumber elected members was challenged in court but upheld in the case of Phang Chin Hock
v PP [1980].
Third, in Article 45(4) the Constitution grants permission to increase the number of state senators
from two to three; decrease the number of appointed senators; and provide for direct elections to
the Senate. We all know that these constitutional dreams remain unrealised.
Representation to special groups: Many professionally qualified people have a distaste for
politics. But they can contribute their bit to the legislative process if they are appointed senators
under Article 45(1).
Regrettably, patronage, and not the democratic legitimacy of being a representative for a special
sector, seems to be the criterion for the appointment of some senators.
Previously a senators term was six years. In 1978, this period was changed to three years with
the possibility of one renewal. This amendment has increased the executives power of
patronage and may have affected the independence of the senators.
Deliberative function: Along with the Dewan Rakyat, the Dewan Negara provides a valuable
constitutional safeguard to check and limit the powers of the Government.

This can be achieved through question time, debates and the unutilised avenue of Dewan
Negara committees.
During question time, ministers must supply information, answer questions and justify policies.
Debates on Bills or on topics of contemporary importance can provide the Government with an
important second opinion on issues of concern. The debates in the Dewan Negara are more
dignified and often of a higher standard than in the lower House.
How far they influence government policy is, however, a matter of opinion.
Emergency: A Proclamation of Emergency and any Emergency Ordinance promulgated by the
King under Article 150 must be laid before both Houses. The Houses have the joint power to lift
the emergency or to annul an ordinance.
Malay Reserves: Under Article 89, a state law to de-reserve a Malay Reservation must be
approved by a resolution passed by special majorities in both Houses of Parliament. The Dewan
Negara cannot be bypassed.
Exercise of privileges: In respect of its parliamentary functions, all members and officers of
Parliament are entitled to some privileges, immunities and powers under Articles 53, 62, & 63.
One of the privileges is to summon any one to appear as a witness before a Senate Committee.
Disobedience can amount to contempt. There is a precedent in Australia, when a Minister was
suspended from the House for refusing to supply a document demanded by the House.
A contentious issue is whether, on the principle of separation of powers, the Houses power to
exercise its privileges e.g. to punish for contempt, is open to judicial review by the courts.
Institutional efficacy: In order to improve the institutional efficacy of the Senate, a number of
reform proposals deserve consideration:
> The constitutional possibilities in Article 45(4) deserve consideration;
> To lighten the load of the Dewan Rakyat, some politically non-controversial Bills should
originate in the Dewan Negara;
> Members of both Houses should be provided with legislative assistants and office space as is
the case in many other Asian societies;
> A Parliamentary Institute must be established to train all MPs and senators;
> Parliament should have its own, independent legal counsel;
> The Senate should appoint Select Committees for Scrutiny of Bills as is permitted by its
Standing Orders;

> In addition, the Senate and the House of Representatives should put in place a system of well
serviced, joint, investigatory Sessional Committees to scrutinise the working of ministries,
selected statutory bodies and such organisations as the Human Rights Commission, the AntiCorruption Commission and the Public Complaints Bureau. Citizen participation in these
committees should be encouraged.
With these reforms, the institutional efficacy of the Dewan Negara could be significantly
enhanced.

Constitutional posers for GE13


Reflecting on the law
By SHAD SALEEM FARUQI

Once Parliament is dissolved, a general election need not be held immediately. The
Constitution permits a delay of 60 days from the date of dissolution.
A GENERAL election may be around the corner. So we need to brush up on our knowledge of
the constitutional principles relating to elections.
No fixed term: Under Article 55(3) of our Constitution, the life of Parliament is stated to be five
years from the date of its first meeting. As that date was April 28, 2008, the existing Parliament
will automatically dissolve when the sun rises on April 28, 2013.
However, it is constitutionally permissible for the Prime Minister to advise the Yang di-Pertuan
Agong to dissolve Parliament before the expiry of its term and thereby to give himself the
advantage of choosing the most favourable time for the electoral contest.
This is in contrast with many Commonwealth countries including Britain which have enacted laws
to have fixed term legislatures. Malaysia may wish to emulate this wholesome practice.
Early dissolution: Though the King is a constitutional monarch required to act on advice, in the
matter of early dissolution, he has been explicitly vested by Article 40(2)(b) with a discretion to
accept or reject his PMs counsel. Conventionally, however, he always obliges though in
exceptional circumstances he may not do so.
Elections: Once Parliament is dissolved, a general election need not be held immediately. Article
55(4) of the Constitution permits a delay of 60 days from the date of dissolution. This means that
contrary to popular expectations of early polls, the next election can be held as late as the last
part of June 2013!
One must note, however, that the timing is not for the PM to determine. The nomination date, the
date of polling and the campaign period are in the hands of the Election Commission, which must
act with independence and impartiality. The present law permits a campaign period of no less
than seven days though news has it that for the next election, the EC will permit 10 days.
Interim period: Between the dissolution of one Parliament and the convening of the next, who
steers the ship of state? The Constitution is gloriously silent on this important issue. For this
reason, the British constitutional convention is adopted that the incumbent PM who called the
election continues to remain in office in a caretaker capacity.
Powers of the caretaker PM: Leadership during interim periods poses problems of democratic
legitimacy for the caretaker government. This is due to the fact that once Parliament is dissolved,
the PM ceases to satisfy the twin requirements of Article 43(2).

These requirements are that the PM must belong to the House of Representatives and he must
in the judgment of the King command the confidence of the majority of the members of the
House. As the House ceases to exist, the legitimacy rug is pulled from under the PMs feet.
For this reason there is worldwide debate about the need to impose clear curbs on the powers of
interim governments.
In Australia, a Caretaker Convention has been drafted to outline that the proper role of such a
government is to be a night watchman, to hold the fort, not to initiate radical policies, not to
dismiss or appoint new judges or undertake significant economic initiatives.
In India, the President has on several occasions vetoed caretaker governments measures
because exercise of such powers may embarrass the government to be formed.
In the Malaysian case of PP v Mohd Amin Mohd Razali (2002) the court held that Article 40(1),
which requires the monarch to act on advice, is not applicable if the advice is rendered by a
caretaker government during the dissolution of Parliament.
Hung Parliament: If no single party or coalition emerges with an absolute (50% + 1)
parliamentary majority, the new legislature will be referred to as a hung Parliament.
Such parliaments exist and function throughout the world but have never made an appearance in
Malaysia at the federal level. Commentators are deeply divided about their demerits or merits.
Appointment of PM: Whatever ones views on hung parliaments may be, it has to be conceded
that they create massive problems for the Head of State on a number of issues, among them the
critical one of who is to be trusted with the mantle of leadership. Several competing
considerations are available.
First is the incumbency rule. If no one secures an absolute majority, the caretaker PM must be
given the first chance to form the government.
Second, in Nepal there is a constitutional rule that in a hung Parliament, the first bite of the
cherry must be offered to the leader of the largest party.
Third, if a viable coalition or a unity government can be hammered out, it should get the chance
to lead the nation.
Fourth, if no coalition can be cobbled together, the Head of State should appoint a minority
government that is capable of obtaining ad hocsupport to pass the budget and other critical
measures.
If the defeated PM asks the King for an immediate double dissolution, should His Majesty
consent? It is submitted that Article 55(4) requires that after one dissolution the new parliament
must be convened within 120 days.

The proper course of action would be for Parliament to meet, a vote of no-confidence to be taken
and then only the House dissolved for a new election unless an alternative government can be
put in place.
Caretakers tenure: If the ruling party fails at the general election, must the caretaker PM who
took the country to the poll resign immediately? In England Gordon Brown refused to step down
till he had (unsuccessfully) exhausted efforts to form the government.
If the caretaker PM refuses to step down, can the King dismiss him?
If the formation of a unity or coalition government takes a long time, must the defeated Prime
Minster re-main in office till a new PM is appointed? Most amazingly, Belgium went 535 days with
a caretaker government because the new government took time to be pieced together.
The permutations of politics are many and more than any other aspect of a nations political life,
general elections throw up issues that test our wisdom to the fullest.

Emergency powers of the monarch


Reflecting On The Law by SHAD SALEEM FARUQI

A caretaker governments advice on emergency proclamation is not binding on the Yang


di-Pertuan Agong.
THIS column had on Jan 10 noted that the last date for the Dewan Rakyats dissolution is April
27; a general election must be held on or before June 26; and the next Parliament must be
summoned on or before Aug 25.
This is presuming and praying that no emergency under Article 150 intervenes to suspend the
general election or postpone the summoning of Parliament.
In response to the Jan 10 article, some readers have raised enthralling questions of
constitutional politics.
First, can the Yang di-Pertuan Agong act on his own initiative to proclaim an emergency even if
the Prime Minister does not so advise?
Second, if a PM, who fears defeat at the general election, improperly advises the King to declare
an emergency and to postpone the elections, is the monarch bound by this advice or is it
constitutionally permissible for him to refuse his premiers counsel?
Third, is the Kings exercise or non-exercise of emergency power subject to challenge in the
courts?
Subjective language: Article 150 states that If the Yang di-Pertuan Agong is satisfied that a
grave emergency exists whereby the security, or the economic life, or public order in the
Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making
therein a declaration to that effect.
A literal interpretation of Article 150(1) appears to indicate that the proclamation of an emergency
is within the sole discretion of the Yang di-Pertuan Agong and is within the subjective powers of
the monarch under Article 40(2).
Article 40(2) states that the Yang di-Pertuan Agong may act in his discretion in the performance
of three enumerated functions, namely appointment of the PM, dissolution of Parliament and
convening of the Conference of Rulers, plus in any other case mentioned in this Constitution.
The subjectively worded powers of His Majesty under Article 150(1) appear to fall nicely within
the category of any other case mentioned in this Constitution.
This interpretation is supported by some scholars like Hickling. It also gained credibility due to
two historical events.

In the case of Madhavan Nair, then Prime Minister Tunku Abdul Rahman submitted in court that
I personally presented the said Ordinance to His Majesty for his consideration and approval.
Having considered the said Ordinance and after being satisfied His Majesty approved the
promulgation of the said Ordinance.
In 1983, the then prime minister, Tun Dr Mahathir Mohamad, pushed through Parliament the
Constitution (Amendment) Act 1983 which amended Article 150(1) to read: If the Prime Minister
is satisfied that a grave emergency exists he shall advise the Yang di-Pertuan Agong
accordingly and the Yang di-Pertuan Agong shall then issue a Proclamation
The 1983 amendment elicited strong opposition from the Conference of Rulers and was
consequently repealed in 1984. But its story firmly planted the seeds of belief that in times of
emergency, the Yang di-Pertuan Agong may act on his own without reference to the Cabinet.
Otherwise, why was this amendment necessary?
The ground-breaking case of Public Prosecutor v Mohd Amin Mohd Razali (2000) lends partial
credence to this view.
According to the High Court, if during the dissolution of Parliament there is no Cabinet in
existence to advise the Monarch, then the King is empowered to issue a Proclamation of
Emergency on his own.
Even if a caretaker government is in place, the caretaker governments advice on national
emergencies is not binding on the Yang di-Pertuan Agong.
King acts on advice: However, there is a long line of academic and judicial opinion that despite
the subjective language of Article 150(1), the declaration of emergency by the monarch is a nondiscretionary power to be exercised on advice.
This was also the opinion of the Reid Commission.
In Madhavan Nair v Government (1975), Justice Chang Min Tat opined that emergency rule does
not displace the Kings position as the constitutional monarch, bound by the Constitution to act at
all times on the advice of the Cabinet.
Reference may also be made to similar opinions in Teh Cheng Poh (1979), Stephen Kalong
Ningkan v Tun Abang Haji Openg (No. 2) (1967); Balakrishnan v KP Perkhidmatan Awam (1981);
Merdeka University (1982); Stephen Kalong Ningkan v Government (1968); Abdul Ghani Ali @
Ahmad (2001); and Karam Singh (1969).
In the light of the above cases, it is submitted that the proclamation of emergency by the King is
not free of the constitutional requirement to act in accordance with the advice of the Prime
Minister.
Article 150(1) that bestows emergency power must be read along with Article 40(1) and 40(1A)
that impose a duty to act on advice.

Even under the Amin Razali ruling, if Parliament is sitting and the Cabinet is in existence, the
Yang di-Pertuan Agong exercises his emergency powers on advice.
Judicial review: But what if the ruling party abuses emergency powers to subvert the
Constitution, to overthrow unfriendly state governments and to postpone elections?
In India, the federal government has repeatedly abused emergency powers to remove elected
state governments and to impose federal rule. Statistics indicate that state governments, often
controlled by opposition coalitions, were federalised 103 times between 1950 and 1995!
The Supreme Court of India, therefore, intervened in S R Bommais case (1994) to hold that the
validity of a proclamation can be judicially reviewed to determine whether it was issued on
relevant material and whether it was in bad faith.
Malaysian jurisprudence is, however, generally in favour of judicial non-intervention on the issue
of proclamation of an emergency: Stephen Kalong Ningkan (1968) and PP v Ooi Kee Saik
(1970). A constitutional amendment in 1981 barring all judicial review of emergency powers
under a new clause 150(8) seems to put the issue beyond all doubt.
However, there remain seeds here and there in the Kalong Ningkan cases that mala fide (bad
faith) may be a ground for judicial scrutiny of emergency powers.
It remains to be seen whether these subdued voices will one day become mainstream.
Till then, it can be summed up that a government with a majority in parliament (but not a
caretaker government) has the right to give binding advice to the King relating to the exceptional
powers under Article 150.
However, if the government abuses its emergency powers for wrongful purposes, three
possibilities come to mind. First, a sagacious monarch may delay, caution and warn. Second, he
may refuse to issue the proclamation and his refusal cannot be reviewed by the courts because
of Article 150(8) which cuts both ways. Third, there is some possibility of scrutiny by the courts of
issues of mala fide remote though this possibility is on existing jurisprudence.

Royal powers after dissolution


Reflecting On The Law
By SHAD SALEEM FARUQI

Understanding the constitutional provisions and conventional wisdom of how the


monarch can be thrust into the limelight and have an influence in the course of the
nations history.
UNLESS elections are called prematurely, the sun will set on Dewan Rakyats five-year term on
April 27. Under Article 55(4) of the Constitution, a General Election must be held within 60 days
of the dissolution and the next legislature must be convened within 120 days of the date on
which Parliament was dissolved.
This means that the last date for General Election is June 26 and the next Parliament must
convene on or before Aug 25. This constitutional scheme cannot be halted or altered except by
the drastic (and unthinkable) measure of re-declaring an emergency under Article 150. During an
emergency all provisions relating to elections and the convening of Parliament can be
suspended as happened in 1969.
Emergency: In the declaration of an emergency, can the Yang di-Pertuan Agong act according to
his own discretion or is he bound by the advice of the Prime Minister? Scholars as well as judges
are in deep disagreement.
Those who see the King as part of the check and balance mechanism argue that the declaration
of an emergency is one of the exceptional discretionary powers of the Yang di-Pertuan Agong, in
the exercise of which he is not bound by a request of the political executive.
Others point to a wealth of case law that Article 150 on emergency is not free of the constitutional
monarchs general duty under Article 40(1) to act on advice.
The middle path between these two clashing views is that in exercising such an exceptional
political power as proclaiming an emergency the King should not act on his own initiative except
in a calamity when the Cabinet is not in existence to advise him. At other times, if counseled to
wield this exceptional power, the monarch can caution, warn and delay but in the last resort he
must accept advice.
Further, a distinction should be made between a PM with a parliamentary majority and a
caretaker PM. In PP v Mohd Amin Mohd Razali (2002) it was laid down that our constitutional
monarch is not bound by Article 40(1) to act on advice if the advice is rendered by a caretaker
government during the dissolution of Parliament.
Aside from the riveting issue of emergency, what are the powers of the Yang di-Pertuan Agong in
the interim period between the dissolution of the Dewan Rakyat and the appointment of the next

elected government? There is a wealth of precedents and permutations from the Commonwealth
and only a broad summary is possible.
Caretaker government: On the dissolution of Parliament, a Westminster convention kicks in that
the incumbent Prime Minister who called elections remains at the helm as an interim, caretaker
leader whose job is to hold the fort but do nothing radical that may embarrass the incoming
government. There are precedents around the world whereby the Head of State has refused
advice by caretaker governments to undertake radical or controversial measures. The Amin
Razali precedent in Malaysia affirms this sensible position.
Victory for incumbent: If the incumbent is returned to power with an absolute majority in the
Dewan Rakyat (in our case 112 out of 122 seats), he satisfies the twin requirements of Article
43(2) and the Yang di-Pertuan Agong has no discretion but to appoint him as the PM.
Leadership deadlock: However, if the ruling party or coalition is deadlocked about the choice of
its leader, then a whole new vista opens up for the Monarch to play a creative role. In Australia
the Governor-General has on a few occasions appointed a person from another party to hold the
post temporarily till the majority party resolves its leadership issue.
It is noteworthy that the PM need not belong to a party. Tun Mahathir was without one when
UMNO was declared illegal. Indira Gandhi was expelled from the Congress Party but retained
her premiership due to the support of the Lok Sabha (House of Representatives). For purposes
of the Constitution it is the support of Parliament and not of the party that matters.
Victory for opposition: If the opposition wins an absolute majority, the incumbent should tender
his resignation as expeditiously and gracefully as possible. If he fails to do so, the Constitution is
silent on the matter but scholars are agreed that the King has a reserve, residual, prerogative
power to remove him. If a defeated premier advises declaration of an emergency, the monarch,
under the Amin Razali precedent, would have the power to say no.
Hung Parliament: If no party or grouping wins a clear, absolute majority in the Dewan Rakyat ,
the Constitution provides very little guidance on the murky issue of how the Yang di-Pertuan
Agong must choose the nations political leadership.
Double dissolution: In some countries an immediate, double dissolution is resorted to. This is
not permissible in Malaysia. Article 55(4) is explicit that after an election Parliament must be
convened within 120 days of the dissolution. The incumbent or newly appointed PM must face
the House and only on a vote of no-confidence must the House be dissolved for a repeat
election.
Incumbency rule: If Parliament is deadlocked, there is no rule that the incumbent PM must
resign immediately. Conventionally he gets the first bite of the cherry to try to put together a
coalition government. In the UK, Heath in 1974 and Brown in 2010, though not victorious, hung
on to office trying to forge a coalition. They failed. But Julia Gillard in Australia in 2011 was able
to strike deals that kept her government afloat.

How long can an interim PM remain in the saddle?


There is no legal guidance and one notes with incredulity that recently Belgium went 535 days in
a caretaker mode before a coalition government could be stitched together.
Coalition or unity or minority government: If a political party or faction is able to cobble together a
viable coalition with majority support, the monarch will appoint its leader as the PM. But if such
an arrangement cannot be made, the monarch may exercise his influence to put together a unity
government for an interim period pending new elections.
If this too appears impossible, the Monarch may, in the last resort, appoint a minority government
that can muster ad hoc support to pass the budget and secure essential legislation. Such
governments are not uncommon but are inherently unstable and short lived.
In performing the above functions His Majesty must act with statesmanship and political
impartiality.
All in all, it is clear that despite his role as a constitutional monarch, who is generally bound by
advice, the Yang di-Pertuan Agong is thrust into the political cauldron if election results show a
stalemate. His sagacious exercise of discretion can change the course of the nations history.

Appointment of Prime Minister


Reflecting On The Law
By Prof Shad Saleem Faruqi

When the House has no one commanding a majority, the Yang di-Pertuan Agongs
discretion can change the course of the nations history.
OF all the constitutional functions of the Yang di-Pertuan Agong, the most critical and
controversial is the appointment of the Prime Minister.
In exercising this function, His Majesty is bound by Article 43(2)(a) which imposes two
requirements: the PM designate must be a member of and have the confidence of the majority of
the members of the Dewan Rakyat.
Membership: Unlike in Australia where the PM can belong either to the House of
Representatives or the Senate, our PM must be an MP in the Dewan Rakyat.
It is conceivable, however, that in some extreme circumstances we may follow the Douglas
Home precedent from the UK.
In the 60s, Sir Alec Douglas Home, a peer in the House of Lords, was elected leader of the
Conservative Party.
When his party won the elections, he resigned his peerage and was appointed PM. Soon
thereafter, a vacancy was created in the Commons which he contested and won.
In Selangor in the 80s, Datuk Abu Hassan was similarly appointed Mentri Besar of Selangor even
before he was elected to the State Assembly.
Confidence: The wording in Article 43(2) that the PM must be a person who, in the opinion of
the monarch, enjoys the confidence of the majority of the members of the Dewan Rakyat, creates
the impression that the King has a wide, subjective discretion to anoint any MP with the premiers
post. The truth is quite different.
If there is a party or coalition enjoying an absolute majority in the Dewan Rakyat, the King has no
choice but to appoint its leader as the PM.
Unlike the Constitutions of nine states with Malay Rulers where the basic law explicitly mentions
that the MB must be a Malay/Muslim, the Federal Constitution imposes no requirement of race,
religion or region.
However, there is a constitutional convention in favour of a Malay appointee. Conventions are not
rules of law and this convention may face pressure in the future from a bumiputra aspirant from

Sabah or Sarawak. We must remember that the two states together possess 56 parliamentary
seats.
In the appointment of a PM, his support in the Dewan Negara is irrelevant. His partys or
coalitions total popular vote at the elections does not count. It is his seats in the Dewan Rakyat
that determine the Kings choice. Some factors that may trigger the Kings personal discretion are
as follows:
Death or illness of the PM: If a vacancy arises in the office of the PM due to death or illness (as
happened on the demise of Tun Razak in January 1976), the proper course for the monarch
would be to wait for the ruling party or coalition to choose its new leader.
However, His Majesty may elevate the Deputy to the top post right away without waiting for the
party leadership decision.
Lack of unanimity: If the ruling party is hopelessly divided on the choice of a leader, it is
conceivable that the monarch may make a personal choice from the parliamentary party.
Alternatively, as in Australia many times, the King may appoint a person from another party to
hold the post temporarily till the majority party makes up its mind.
Caretaker government: Malaysia follows the British convention that the PM who advised
dissolution, and his Cabinet, remains in office in a caretaker capacity without the need for a new
swearing-in.
However, if during the dissolution, the PM dies or suffers serious illness, then Article 43(2)
permits the Yang di-Pertuan Agong wide discretion to appoint any person who was a member of
the last House of Representatives to helm the nation.
Hung Parliament: A hung Parliament is one in which no party or coalition commands an
absolute majority in the House of Representatives.
The government in power can lose its majority in the House for a number of reasons. It may
suffer deaths, resignations or defections causing its membership to dip below the 50% + 1 vote.
Or, the general election may result in a stalemate and no party or grouping may emerge a clear
victor.
In such a situation when the House has no one commanding a majority, the Yang di-Pertuan
Agongs discretion assumes a critical, central role and his decision can change the course of the
nations history. What are his choices?
First, he cannot run the country on his own. That would be contrary to the overall spirit of the
Constitution.
Second, His Majesty cannot order another general election after the just completed indecisive
one.

The Constitution is clear in Article 55(4) that after a dissolution, the new parliament shall be
summoned not later than 120 days. This means that after an election, a PM must be appointed,
the House must meet, and a vote of confidence must be taken.
Third, if election results are indecisive and no majority government can be installed, the King can
follow the incumbency rule and allow the caretaker PM to remain at the helm till Parliament is
summoned within the 120 day rule.
Fourth, in some countries like Nepal the rule is that in hung Parliaments the party with the largest
number of seats is given the first chance to form a coalition government.
The fifth choice for the monarch is to indulge in broad consultation with all parliamentary factions
to see if any one of them can form a viable coalition government capable of enacting the budget
and pushing through critical legislation.
In such a scenario it is not uncommon for the head of state to require the PM-designate to supply
written lists or letters to prove his support and to subject himself to a vote of confidence within a
stated period.
If no viable coalition can be cobbled together, the sixth choice for the monarch is to allow a
minority government or a unity government to lead the nation till new elections are called.