IN the aftermath of a general election, the most critical and possibly controversial issue is the appointment of the Prime Minister. The Constitution provides three guidelines:
> The PM must not be a citizen by naturalisation or registration: Article 43(7).
> He must be a member of the Dewan Rakyat: Article 43(2). This appears non-controversial. However, life being larger than the law, novel situations may arise. In the United Kingdom in 1963, the Conservatives won the election but their leader, Lord Home, belonged to the Upper House. The Queen appointed him as the PM but only on the condition that Lord Home resign his peerage, engineer a by-election and be elected to the House of Commons. In Selangor, in the 80s, a similar situation was thrown up when a vacancy arose in the post of the Mentri Besar and Datuk Abu Hassan, a federal minister, was appointed MB even before he contested and won a seat in the Selangor legislative assembly.
> The PM-designate must, in the judgment of the Yang di-Pertuan Agong, be “likely to command the confidence of the majority of the members of the House”. This wording leads some people to believe that the monarch has unlimited and subjective discretion in the matter. Actually, the constitutional position is that if a party or coalition commands the confidence of an absolute majority (112/222) of the members of the Dewan Rakyat, the King has no choice but to choose its leader as the PM.
In conferring the mantle of leadership on someone, the King is not obliged by law to take into consideration the advice of the previous PM, the candidate’s support in the Dewan Negara and the percentage of the popular vote obtained by his party. It is not relevant how many states the PM-designate’s party won or lost at the GE. It is the number of supporting MPs in the Dewan Rakyat that matters.
The race, religion or region of the nominee is not mandated by law and is a matter of constitutional conventions. This is in contrast with the constitutions of the nine Malay states with Malay Rulers which are explicit that unless the Ruler makes an exception, the MB must be a Malay/Muslim.
What are the possible scenarios after the next GE? The first is that the ruling coalition may win a two-thirds or an absolute majority in the Dewan Rakyat, in which case the King’s role in appointing the PM is merely ceremonial.
Contrary to what is believed by some, a two-thirds majority is not necessary to form a government and to pass legislation. A two-thirds majority is relevant only for constitutional amendments.
A complication that can arise is if, for whatever reason, e.g. death or resignation, the ruling coalition is deadlocked on the choice of its leader. In such a situation, the King may follow Australian precedents and appoint a short-term caretaker PM from a minority party to helm the affairs of the state while the ruling party makes up its mind.
A second possibility is that the opposition may win with an absolute majority in the Dewan Rakyat. In such a situation, the caretaker PM will resign and the King will appoint the opposition leader as the new PM. A smooth transition of power will take place.
A complication may be if the winning opposition coalition is deadlocked on who its leader should be. In such a case, the King may allow the incumbent PM to continue temporarily till the opposition resolves its leadership issue. Alternatively, the King may pick someone from a third party to head a temporary caretaker government.
A further complication may arise due to the opposition coalition lacking a formal, separate legal personality under the Societies Act. Elements in the caretaker PM’s party may argue that, as in Nepal, the party or coalition with the largest number of seats and not an informal alliance must get the first chance to form a government.
In such a situation, the King will have to play a critical role. He may remind himself of a similar situation in Perak in 2008 when Barisan fell short of an absolute majority but was the single largest group in the assembly. Nevertheless, the informal opposition coalition was allowed to form the government due to its numbers. It did not matter whether the coalition was registered or not, and whether the alliance was pre-election or post-poll.
A third possibility on many lips is that of a hung Parliament i.e. a legislature in which no party or coalition commands an absolute majority. The Constitution provides very little guidance about such a stalemate and we need to draw conclusions from Commonwealth conventions.
First, a constitutional monarch cannot run the country on his own. He must appoint a Prime Minister to advise him.
Second, His Majesty cannot, because of Article 55(4), order another general election immediately. After an election, the new parliament must be summoned within 120 days of the dissolution.
Third, the King could follow the “incumbency rule” and allow the caretaker Prime Minister to try to forge a coalition. How long the incumbent can take to form a viable coalition will be left to the King’s discretion. If the caretaker succeeds, he is appointed. If he fails, he must resign. If he refuses to resign, he can be dismissed.
In all hung parliaments, the despicable phenomenon of party hopping acquires great significance. Unfortunately, “crossing the floor” is constitutionally protected due to the decision in Nordin Salleh v Govt of Kelantan (1992).
Fourth, an alternative to the incumbency rule is the practice in Nepal that in a hung parliament, the party with the largest number of seats is given the first bite of the cherry.
The fifth choice for the monarch is to indulge in broad consultation with all factions to see if a viable, unity coalition with majority support can be formed to push through critical legislation till new elections.
If no viable coalition can be cobbled together, the sixth choice for the monarch is to appoint a minority government to advise him to summon parliament within 120 days of the dissolution and to call a repeat general election.
Shad Saleem Faruqi is Emeritus Professor of Law at UiTM The STAR Online Columnist 18/04/2013