Thursday January 10, 2013
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 nationís history.
UNLESS elections are called prematurely, the sun will set on Dewan Rakyatís 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 monarchís 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 ďnoĒ.
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 nationís 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 nationís history.