I REFER to the views expressed in “Where are Anwar’s numbers?”

The writers assert that the “Malaysian Constitution does not provide for the king to remove a sitting prime minister.”

With due respect, that is as tenuous as Anwar Ibrahim’s claim of a super majority among the 222 members of the Dewan Rakyat.

Articles 40 and 43 of the Federal Constitution may be silent on removing a sitting prime minister. But reference has to be made to the 11th Schedule, where section 29 provides for the power to appoint to include the power to dismiss:

“Where a written law confers upon any person or authority a power to make appointments to any office or place, the power shall, unless the contrary intention appears, be construed as including a power to dismiss or suspend any person appointed and to appoint another person temporarily in the place of any person so suspended or in place of any sick or absent holder of such office or place:

Provided that where the power of such person or authority to make such appointment is only exercisable upon the recommendation or subject to the approval or consent of some other person or authority, such power of dismissal shall, unless the contrary intention appears, only be exercisable upon the recommendation or subject to the approval or consent of such other person or authority.”

What will happen with Anwar tomorrow?

Nothing.

Anwar will have an audience with the Yang di-Pertuan Agong (the king) and will presumably present to the king evidence that the sitting prime minister has lost the confidence of the majority of the members of the Dewan Rakyat.

The king, in turn, will be guided by the menteri besar of Perak case of Nizar v Zambry where the Federal Court held that that the loss of confidence in the MB may not only be established through a vote in the state assembly but may also be gathered from other extraneous sources provided they are properly established. Such sources include representations made by members of the legislature that the menteri besar no longer enjoys the support of the majority of the members of the legislature.

In that case, there was a demonstration of support by 31 members of the legislature for Barisan Nasional (BN). This clearly pointed to the loss of confidence of the majority of the members of the legislature in the leadership of the incumbent menteri besar, even without a vote in the legislature.

Accordingly, the question of confidence in the prime minister may be determined by means other than a vote of no confidence in the Dewan Rakyat. Like it or not, this is not inconsistent with the principles of parliamentary democracy. 

(See Elliot W. Bulmer, Government Formation and Removal Mechanisms (2017) available online at https://www.idea.int/publications/catalogue/government-formation-and-removal-mechanisms)

Now, the Federal Court also held that it was incumbent upon the menteri besar in the circumstances of the case to tender the resignation of the executive council. The term executive council by definition includes the menteri besar. If the menteri besar refuses to tender the resignation of the executive council, the menteri besar and the executive council members are deemed to have vacated their respective offices.

Accordingly, even if one were to strenuously assert that the constitution does not provide for the king to remove a sitting prime minister, it matters not since the prime minister would be deemed to have vacated his office.

In any case, it has been said that if the prime minister ceases to command the confidence of the Dewan Rakyat; fails to secure the king’s assent to a dissolution of the Dewan; and yet refuses to tender his resignation as is required by Article 43(4), the king may remove him from office. (See Shad Saleem Faruqi, Document of Destiny: The Constitution of the Federation of Malaysia (2008) at p 443)

But this will not happen on Tuesday. The prime minister must next have an audience with the king. In the Perak menteri besar case, the menteri besar had an audience with the sultan on the same day after three members of the legislature informed the sultan they no longer supported the then political alliance of Pakatan Rakyat and instead supported BN.

It is safe to say that the prime minister will not have an audience with the Agong on Tuesday as he is undergoing self-quarantine at home for 14 days. 

So yes, nothing will happen on Tuesday insofar as a change of prime minister is concerned. Let’s stay calm and not raise alarm, unless new Covid-19 cases on the day record another new high.

The king will be guided by the rule of law and the case of Nizar v Zambry, as the case was with the appointment of Muhyiddin.

The king is, after all, a constitutional monarch. – October 12, 2020.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.