From Dian AH Shah and Andrew Harding
As Malaysians headed to the polls yesterday, many people predicted a hung Parliament. Naturally then, the question arises what happens constitutionally in such a situation?
The role of the Yang di-Pertuan Agong becomes important as we have seen over the last few years, in cases of appointment and resignation of prime ministers.
The role of the Agong in these matters has never been under greater scrutiny.
Malaysians now live in an age of political fluidity and are increasingly aware of the need for constitutional mechanisms to constrain politics and ensure a democratic polity.
Many will hope for stability under a solidly supported leadership, and they expect their head of state to play an important role. These issues, we believe, are a sign of a maturing democracy, rather than a cause for concern.
And, of course, the situation of a hung Parliament is by no means uncommon. It has featured in parliamentary democracies the world over. So what is the position where Parliament is hung following a general election?
Hung Parliament or not, the starting point is that the Agong has the obligation – under Article 43(2) of the Federal Constitution – to appoint as prime minister the member of the Dewan Rakyat who in his judgment is likely to command the confidence of the majority of the Dewan Rakyat members.
This obligation is to be read with Article 40(2), which states that the Agong may act at his discretion in appointing a prime minister.
Three immediate questions
What do these provisions mean? There is clearly a lot more to the words “discretion”, “judgment” and “confidence” than meets the eye. But the implications of this language can be elucidated by three questions.
First, does “discretion” mean that the Agong has absolute freedom to choose and appoint a PM?
Second, how should the Agong exercise the “judgment” required of him?
Finally, what is the evidence of the “confidence” that is being judged?
To answer these questions, it is important to appreciate several broader principles.
The first is that the rule of law (“kedaulatan undang-undang”) is central to a functioning constitutional democracy — thus, everyone is governed by the law and all power has legal limits.
The second related point is that while the constitution creates political institutions and endows them with certain powers, it also spells out, or implies, the limits of those powers.
Thirdly, the Malaysian constitutional order is built upon the foundations of a Westminster parliamentary democracy and in such a system, certain conventions, such as those governing the appointment of a prime minister, have been developed to ensure representative government within a system where the head of state exercises important but limited powers.
In light of this, we regard statements that the Agong has “absolute”, “unlimited”, or “unfettered” discretion to be highly misleading.
There is no such thing as “absolute discretion”. Indeed, like every discretionary power, the Agong’s discretion is limited by the very words that confer it.
It is also limited by the imperatives of constitutional monarchy and representative government which inform the interpretation of the text. The Agong’s power in the matter of appointing a prime minister after a general election is discretionary because in this instance he cannot act on the advice of the government.
The government remains to be formed, and the Agong can only act on the advice of a government with a majority.
But it is important to understand that this discretion is not a discretion to appoint the person who seems to best merit appointment; it is a judgment as to who commands the confidence of a majority – and that is an entirely different question.
It is also important to understand that, since the matter is not one of the Agong’s own political preference, but one of judgment of facts, the constitution also insulates the monarchy from being turned into a political football.
This imperative of ensuring the office of the Agong remains above politics also means that when it comes to the formation of government, the Agong’s role to appoint (as opposed to the more proactive role of “determining”) is secondary to the political process among elected political elites to determine the matter of support.
It is this process that results in the fact of the confidence of a majority that enables the Agong to exercise his power of appointment.
Of course, in making this judgment, the Agong is entitled, indeed obliged, to rely on evidence. But what evidence counts in these circumstances?
The constitution does not give us the answer, but an answer can be made on the basis of constitutional logic.
The Agong cannot in this case rely on support expressed on the floor of the house, as the new house has not yet met. But he is entitled to consider other matters.
First, there are public expressions of support by party leaders, who speak on behalf of their party’s parliamentary membership.
It has also been common in Malaysia (although not, we notice, elsewhere) for MPs to issue statutory declarations or letters of support. These are not wholly reliable, as a member may express support for one prime-ministerial candidate one day and another the next.
Thirdly, a head of state may take his own soundings among political leaders. In the last two cases of prime-ministerial appointment, the Agong also went to the extent of interviewing all MPs and party leaders to arrive at his judgment on confidence.
This (we have checked) has never been done in any other parliamentary system to the best of our knowledge, and we suggest could only be appropriate where the other evidence listed above has proved to be unreliable.
In essence, a head of state should be entitled to rely on the veracity and soundness of judgment of party leaders in making his assessment.
In a system of parliamentary democracy, political choices and decisions are driven by parties, as opposed to individual MPs.
Practising constitutional democracy and protecting the democratic mandate
Under Westminster conventions, the issue of determining confidence is – as we suggested above – a political process for the politicians to resolve among themselves.
Notwithstanding public fatigue with power battles, there are persuasive reasons to allow such a political process to take centre stage.
We have highlighted the need to avoid pulling the Agong into political controversy.
Of late, there have been attempts by several politicians to pass the buck, so to speak, to the Agong to determine who becomes prime minister, as a means of indirectly resolving leadership and power struggles within their own coalition.
This is a misconception of his role.
If an appointed candidate is later subjected to (and fails) a no-confidence vote in Parliament, this might suggest a serious misjudgment on the part of the head of state and it would undermine public confidence in the institution.
However, we suggest that if party leaders overestimate their support, and as a result, for example, lose a parliamentary vote of confidence which they had indicated they would win, then the embarrassment should be that of the party leaders in question, not that of the head of state.
Based on the principles and issues considered above, the determination of the issue of confidence must be carried out in light of constitutional conventions.
The writers are with the Centre for Asian Legal Studies, National University of Singapore.
The views expressed are those of the writer and do not necessarily reflect those of FMT.