With the rumour mill abuzz with speculation that the Cabinet will discuss the dissolution of Parliament today, constitutional lawyers say there is no obligation for the Yang di-Pertuan Agong to accept any advice on what to do afterwards.
Dominic Puthucheary and Bastian Pius Vendargon both agree that the dissolution of Parliament is at the King’s discretion under the Federal Constitution. He can decide on the next course of action if an election is deemed unwise during the pandemic.
“The constitution then allows the King to choose the candidate most ‘likely’ to command majority support,” Puthucheary told FMT.
“The word ‘likely’ is used because the King does not know whether they have the confidence of the people and the Dewan Rakyat. The next step, as a matter of constitutional duty, is to go to the Dewan Rakyat and get a vote of confidence.”
He said that as Prime Minister Muhyiddin Yassin has until now not tested his majority in Parliament, it would be fair to call him “the de facto prime minister, not a constitutional one”.
“Insofar as he was appointed by the King, he has not gained the endorsement of the Dewan Rakyat as required in a constitutional parliamentary democracy.”
Vendargon said that if the prime minister does not resign, the King could then instruct him to call for an immediate parliamentary sitting to determine who commands the majority support of MPs.
“The prime minister can be instructed to call for Parliament to sit so the MPs can decide among themselves who has majority support.
“That person could then return to the King with the mandate of the Dewan Rakyat and the King can appoint him or her as the new prime minister.”
On the precedent set during the 2009 Perak constitutional crisis, both lawyers agreed that a new leader must get the mandate of the people in order to rule.
Puthucheary said the Court of Appeal and Federal Court had “botched it” with rulings that the change of Perak’s government was constitutional, calling it a “political decision with no basis in constitutional law”.
“The appointment should not be just the personal wish of one party. It should be a representation of the people. So what happened in Perak was wrong.”
Vendargon argued that so long as the person selected by the King won a vote of confidence to prove his legitimacy, it would be in line with constitutional provisions.
“They cannot avoid it and leave it hanging in the air as a question mark forever.”
Source : FMT