There is no Article in our Federal Constitution that is headed “Prime Minister”. To find out how our head of government is appointed, you need to refer to Sub-clause (a) of Clause (2) of Article 43, which is entitled “Cabinet”.
There, you will see that “the Yang di-Pertuan Agong shall first appoint as 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.” This phrasing and its equivalents in the state constitutions have been much scrutinised in recent years, particularly during episodes in which several Menteri Besar were changed, and following the 14th General Election, in which constitutional lawyers weighed in to point out that the convention of the leader of the largest party in the Dewan Rakyat becoming the prime minister need not necessarily be followed.
At the time, that individual was PKR’s Datuk Seri Dr Wan Azizah Wan Ismail, who revealed that the Yang di-Pertuan Agong followed that convention by asking her to form a government in an audience in the evening of election day (a time frame which is considerably quicker than in many parliamentary democracies).
In reply, she informed His Majesty that Tun Dr Mahathir Mohamad of Parti Pribumi Bersatu Malaysia was the person who, by agreement of other party leaders in the Pakatan Harapan coalition, commanded that majority.
Having verified this with said party leaders, the Yang di-Pertuan Agong appointed the MP for Langkawi as Malaysia’s seventh Prime Minister, with the MP for Pandan becoming Deputy Prime Minister.
Thus, in addition to the cases of the appointments of several Menteri Besar, the appointment of Dr Mahathir after GE14 has further established that in coming to a “judgment” of who “is likely to command the confidence of the majority of the members”, a variety of methods may be used.
Convention need not be strictly followed, though some would no doubt point out that had Pakatan been allowed to register as a single entity prior to the election, no confusion would have arisen since Dr Mahathir would have been its leader.
Since GE14, many reforms pertaining to the Dewan Rakyat are in the process of being pursued: the impartiality and effectiveness of the Election Commission, rules about spending and transparency during campaigns, the fairness of constituency delimitation (or delineation), resources available to MPs, and even the nature of their roles, particularly with the establishment of new select committees (on which I wrote last month).
Even wider reforms have been suggested, such as changing the format of elections to a form of proportional representation, but that is a drastic step that may alter the fundamental basis of representation inherent in the constitution – that voters elect individuals (who may or may not belong to parties) rather than explicitly choosing parties.
Of course, in theory, such a change is nonetheless possible. A more worthwhile immediate reform would be to activate an oft-forgotten clause in the Federal Constitution pertaining to the imagined election of senators.
I am not referring to the Seventh Schedule, which explains the election of senators sent by state legislative assemblies. Instead, I have in mind Article 45 (4) which envisages that Parliament may increase the number of members to be elected for each state, provide that these senators shall be elected by the direct vote of electors of the state, and decrease or even abolish senators who are appointed (by the Yang di-Pertuan Agong on the advice of the government).
Of course, in the words of A.V. Dicey, a British jurist and constitutional theorist. Parliament can ”make or unmake any law whatever” – and in the case of the Senate, Parliament has increased the proportion of appointed senators. But it is clear that the authors of our constitution imagined an increase of democracy, rather a decrease. Referencing the Speakers’ Lecture that I delivered recently, a senator did raise the topic, so I am lopeful that it will gain further traction.
For now, though, all the focus is on another part of the Federal Constitution that has been rarely examined, namely Part I of the Third Schedule, relating to the election of the Yang di-Pertuan Agong, following the resignation of the 15th Yang di-Pertuan Agong as permitted by Article 32 (3).
Constitutional lawyers seem to be enjoying drawing distinctions between the “first election list” and the “reconstituted election list” and pundits are enjoying speculating on who will be our next head of state.
Whatever the decision of the Conference of Rulers, our next head of state will perform important constitutional roles that may form precedents for our ever-evolving nation.
In the words of the first Yang di-Pertuan Agong, the Constitution is a democratic achievement of the highest order, and Parliament -comprising the Yang di-Pertuan Agong and both Houses – is its crown.
First published in The Star, 11 January 2019.