DOES the appointment by the Yang di-Pertuan Agong of a prime minister preclude that the appointment be questioned or be subject to a vote of confidence in the Dewan Rakyat ?

The honourable attorney-general of Malaysia holds a constitutional office pursuant to article 145  of the federal constitution.His views on the law ought to be given respect and due attention. The AG is the first legal officer of the nation  as he takes precedence over any other persons appearing before any other persons appearing before any court or tribunal in the federation.

His duties inter alia to advise His Majesty or the cabinet or any minister on such legal matters and to perform such other duties of legal character, as may from time to time be referred or assigned to him by the YDPA or the cabinet , and to discharge the functions conferred on him by or under this constitution or any written law. 

In a press release issued by the AG dated September 4, 2021 the AG gave his learned opinion on the powers and authority of the YDPA to appoint the person to be PM who his judgment is likely to command the confidence of the majority “in accordance to article 43 of the constitution. This aspect of his opinion is flawless and clearly apt and as provided for under article 42 (2)(a),  the YDPA “may act in his discretion in the performance of the following functions, that is to say, the appointment of a prime minister.

The Federal Court decision in the Perak situation where the ruler of the state under analogous provision of the state constitution has held that the ascertaining by HRH of who is likely to command the confidence of majority may be taken by means other than a vote of confidence of the House. The AG’s painstaking description of how the YDPA discharged His Majesty ’s constitutional responsibility in the appointment of the ninth PM is helpful. 

However to state that the YDPA ’s power and authority is absolute (mutlak) and cannot be questioned is a problematic statement.

The Istana has time and again articulated  and reminded that all parties must honour the constitution and rule of law.

Article 43 (4) states unequivocally that “ if the PM ceases to command the confidence of the majority of the House of Representatives  then , … the PM shall tender the resignation of the cabinet”. This article 43(4) can be read in harmony with article 42(2) and cannot be rendered otiose or nugatory. The AG’s view that is YDPA exercise is questioned that it constitutes a breach of the federal constitution cannot be sustained on a plain reading of the provisions of the federal constitution. A constitutional monarch cannot determine for the House of Representatives( which will be the consequence of the AG ’s opinion of the law) that the appointee to PM cannot be subject to a vote of confidence. Parliamentary democracy retains its sphere of “ sovereignty “ as the people representatives and to deny this is not only undemocratic but inconsistent with the federal constitution. It also draws the YDPA into the “political thicket” and this must be manifestly be avoided. 

The AG referred to the issue of legitimacy which of the appointment which in many ways discloses the heart of the matter. The events leading to the resignation of the eight PM arose from the legitimacy deficit which arose in part from the  avoidance of vote of confidence. No PM should avoid the time-worn convention that if his taking of the office arose out of the collapse of the coalition that previously held power,  the legitimacy of his holding and leading cabinet has been tested in a vote in the House of representatives. It is more than historical interest but significant that Hussein Onn upon taking office as PM after the untimely demise of Abdul Razak Hussein procured a vote of confidence from Dewan Rakyat on January 27, 1976 (see Hansard pp 9921, 9922 ). – September 5, 2021.

* Philip TN Koh is adjunct professor at Universiti Malaya.

* 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.