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Tuesday, March 3, 2009

Precedential Transitions

Precedential Transitions

The Prime Minister has declared that the anticipated power transition to Datuk Seri Najib Razak will occur as planned. The media has reported this and other news items pertaining to the subject as a transition of Prime Ministers. If this is in fact what the Prime Minister has proclaimed, and it is not apparent whether the Prime Minister had limited his remarks to the transition of the UMNO presidency, then it calls for a re-examination of the way in which governments are formed under the Federal Constitution.

For practical purposes it can be said that Parliament is dissolved when a general election is called. The government of the day, formed by the majority of the member of the Dewan Rakyat, comes to an end when this occurs, at least in theory. A caretaker government is charged with the responsibility of governing the nation in the short period before a new government is formed. This occurs when the Yang di-Pertuan Agong appoints a member of parliament to be the Prime Minister. The person His Majesty appoints is the person who in His judgment is the person commanding the confidence of the majority of the members of parliament. The appointment is a matter left entirely to the discretion of His Majesty with one condition: the appointee must be the person commanding the confidence of the majority of the members.

In the usual course, this is a matter of numbers. That person who can say that he or she commands the confidence of the majority should become the Prime Minister. This is straightforward where every member exercises his or her own judgment in coming to a choice and expresses that choice independently.

The situation is less clear where the right to choose is ceded over to a political party, or more specifically the leadership of that party or the coalition to which it exists. It may be that the party’s choice of candidate is not the choice of some or members or even a majority of them. The question then arises whether the choice of the leadership can be taken as the choice of the members of parliament from the party or coalition.

A purist perspective would lend against such a conclusion. The choice of the individual member of parliament of whom it is that he or she has confidence in is enshrined under the Constitution. A more practical approach would inevitably favour the conclusion that the party’s choice would prevail. This could however be made the basis of a plea to His Majesty. Though we have yet to see this happen on the Federal stage, we saw such a scenario unfold in Trengganu last year. There the Regent took the position that the party’s choice, predicated as it was on the majority of assemblypersons being made up of members of the party, was not decisive in view of personal preference favouring another candidate. This incident could be viewed as having some persuasive force.

The situation is not radically different where a Prime Minister resigns. As the Constitution does not cater to such a situation specifically, it stands to reason that reference must be made to the same provisions concerning the appointment of a Prime Minister.

These provisions provide for the resignation of a Prime Minister where upon his request for the dissolution of Parliament, His Majesty declines to do so. In that case, the Prime Minister must tender the resignation of the Cabinet (of which he is a member). I would think that though the Constitution is silent, the Prime Minister is permitted to resign, even where a no-confidence scenario is not in existence. To do so, he would however have to tender the resignation of his cabinet.

The more interesting aspect of this situation centres on what it is His Majesty can or should do. Save for the no-confidence scenario, the power to dissolve Parliament is one to be exercised on advice. It could be argued that without such advice, His Majesty cannot dissolve Parliament and as such is left with only the option of appointing a new Prime Minister who in turn will form his cabinet.

However, if one were to take the events of Perak as definitive, in particular the discretion of the Sultan to determine whether confidence exists, it may be open to His Majesty to take the position that by the incumbent Prime Minister resigning for reasons that have nothing to do with his incapacity, it could be said that he no longer commands the confidence of the majority. That being the case, His Majesty has the option of dissolving Parliament.

I do not think that is the correct way of looking at things. However, after Perak, it is difficult to say what is right anymore.

Leaving aside the conundrum outlined above, there remains the final dimension of this discussion: the absolute discretion of His Majesty to appoint as Prime Minister the person whom in His judgment commands the confidence of the majority. This need not necessarily be the person who replaces the Prime Minister as the President of UMNO.

That this has occurred all this while need not make it a necessity. A convention within the Barisan Nasional and the coalition’s dictates cannot bind His Majesty especially where there is reason to ask whether the proposed candidate does in fact command the requisite confidence. Imagine if personal preferences were marshaled in a way that lent to a different outcome in His Majesty’s mind. If that were to occur, there would be little room left for UMNO to maneuver, especially after the way it has carried on about the inviolability of the royal discretion. Precedent has a nasty way of biting back.

(Malay Mail; 3rd March 2009)




Dear Malik,

An erudite piece which I doubt will make any impression in the small minds in BN/UMNO.

It is irrefutable that the position of the Prime Ministership is not a football to be passed around. The resignation of the present incumbent, together with that of his cabinet, can only be tendered to His Majesty, who can decide whether to dissolve Parliment. Neither Abdullah Badawi nor Najib can decide between themselves on the position of the PM. that is the sole prerogative of His Majesty!

Of course the crisis in Perak has undone the machinations of UMNO. And I doubt that those who were privy to the manourverings anticipated the Perak play and countyer play!

I do not envy the position of His Majesty. The only solution perhaps lies in dissolving Parliment.

Anonymous said...

Well written as always, MIS.
For that matter, I could say that the majority of the people of Malaysia would prefer to state for themselves who has their confidence, rather than the leadership of this country being passed around as a trinket.

flyer168 said...

Dear Malik & ALL Anak Bangsa Malaysia,

The "Childish Charades" of the UMNO Leaders & their "Political Slaves" from Top to Bottom....

- "Kita di Perentah/Arah....." vs our "Constitution", Democracy & the Rule of Law has created another "1st in our National History" of 52 years in Ipoh Perak today....

- The Perak Dewan Speaker had no "Recourse" but to conduct his "Emergengy Sitting" together with the Perak MB & his Quorum Assembly members beside the Car Park under a Huge Tree....

- Witnessed by about 1000 citizens which was beamed to the whole World....

- A “FULL BLOWN CONSTITUTIONAL CRISIS” in Perak on 03/03/09....

- Just how can our King & his Council of Rulers, our PM (& our DPM/Finance Minister?) ALLOW "Any Person or Group" within UNMO/BN to HOLD "Malaysia, its KING & his Council of Ruler", our Constitution & Nothing but Our Constitution...the Supreme Law of this Land, Democracy, the Rule of Law & the downtrodden Anak Bangsa Malaysia to "Ransom" ?

With UMNO/BN still in “Denial” even at this 11th hour of our nation’s “Political & Financial Tsunami”....

This is an Insult to this nation, the King & his Council of Rulers, our Constitution, the Malay race, Islam & ALL Anak Bangsa Malaysia ....

God Almighty is giving this nation & those that "CAN MAKE THE DIFFERENCE" a "Window of Opportunity" to take the "BOLD STEP" to "DIFFUSE" this Dangerous Trend toward..."EMERGENCY RULE" & possibly "ANARCHY".


At this "Juncture" I am "Appealing" to our "King & his His Council of Rulers together with our PM to "Save this Nation" to take the "BOLD STEPS NOW" to "DIFFUSE" this Dangerous Trend toward..."EMERGENCY RULE" & possibly "ANARCHY".

I am also "Appealing" to ALL our Anak Bangsa Malaysia to "PETITION" to our "King & his His Council of Rulers together with our PM to take advantage of this "God" given "WINDOW of OPPORTUNITY" to CONSIDER doing the "NEEDFUL URGENTLY" Now.

Ampun Tuanku Beribu Ampun Sembah Patik Mohon Di-Ampun.

Daulat Tuanku, Daulat Tuanku, Daulat Tuanku.

WY said...

Dear MIS,

Open ended article as usual. But after what is transpiring out of Perak, how could one have any Faith in our Constitution anymore? Our ruling government doesn't seem to respect the Constitution and the very basis of democracy itself. We might as well be ruled by a junta. All the talk to legality of the so-called new BN perak government, led to me believe that the only thing that will stop Umno's strangle on this country is its infighting.

Back to your topic of precedential transitions. As an ignorant public, one may only speculate that Najib Razak would have something up his shelves if he were NOT to be appointed as the Prime Minister. Remember, there's a different set of rules and law for Umno members.

Unknown said...

I am waiting for the day (it’s very soon) when UMNO will expectedly elect the below listed individuals as part of their leadership team

Deputy President

Vice President

Pemuda Chief

Deputy Pemuda Chief

I am not saying the others are of higher persona or better, but they can be vaguely considered as not being too heavy of a liability to UMNO; while some posts like the President and Wanita Chief are gone cases.

But UMNO delegates always have a very weird funny way (read moron) in choosing their leaders; and I am predicting the MOTHER OF ALL STUPIDITY is coming soon.


Then we will see an equally visionless and incapable team in Anwar Ibrahim, Khalid Ibrahim, Syed Husin Ali, Azmin Ali, Tian Chua, Hadi Awang, Nasharudin Mat Isa, Karpal Singh, Lim Kit Siang, Lim Guan Eng running the country (what portfolio shall these people holds - scarily curious?)


Anonymous said...

Dear MIS

I despise - an altogether insufficient word - the UMNO neanderthals as much as anyone alive but I shudder to think of the possible consequences of your conclusion.

I know that you are simply trying to point out that monarchical activism can cut both ways. True enough.

But even if this is something that rips out UMNO's goolies, which is good thing, this cannot be something that we encourage.

What happened Perak is the Path to Perdition. It cannot be allowed. It just cannot be.

Anonymous said...

The present PM is stepping down due to the lack of support for his leadership. If in Parliament, PR dominate soemone with a motion and he get more votes than those of Najib, does that meant we have a change in government ? Could this be an opportunity for Anwar to be PM and to turn the table "Perak" Style for PR ?

Old Fart said...

Every dog and UMNO member, leader, sympathiser and UMNO lawyer seem to suggest in the statements they make that theirs is the final word on anything at all.

On the matter of Perak, Najib's assurances to the Sultan that all is well must have sounded to the Sultan as final indeed. The Sultan acted on that assurance. Now the Sultan is left holding the stick. Can the Sultan trust the assurances of the soon to be all powerful Najib or anyone else for that matter anymore?

Hope the Agong remembers this when Najib approaches him come 1 April with all the assurances and comforts. What if the Agong believes Najib and swears him in as Prime Minister and the very next day the parliament sits and a motion of no confidence is moved against him and passes?

Maybe, it might just be wise of the Agong to enquire from his brother Sultan of Perak if Najib called to apologise for leaving him stranded and with all his cultivated dignity, respect and honour in tatters? That should tell something about Najib and about how reliable he and his assumptions can be.

The Agong will have to remember, Perak is very much a local issue and at best this is news in Singapore and no where else. With the Premiership of Malaysia, this will be CNN, BBC, ALJazeera stuff. Congratulations will be pouring in from the White House and 10 Downing Street. And if, after all this, Najib gets booted out of parliament, what a tragedy for Malaysia and what a dilemma Najib would have put the Agong in.

I think it is only fair and right that Najib first goes back into parliament and get from the members of parliament their confidence in him.