Dewan Rakyat can’t elect PM, will lead to constitutional crisis, warn lawyers

(FMT) – The Federal Constitution does not provide for the Dewan Rakyat to elect among its members a prime minister, said constitutional lawyer Dominic Puthucheary.

“The Dewan Rakyat is only the place to test whether a prime minister appointed by the Yang di-Pertuan Agong has majority support,” he told FMT.

He said one had to obtain the support of at least 112 of the 222 MPs to remain in office to administer the nation with the help of his Cabinet.

Puthucheary said this in response to interim Prime Minister Dr Mahathir Mohamad’s announcement today that the next head of government would be elected in the Dewan Rakyat (Parliament) on March 2.

Mahathir said the king had found that no one had a clear majority to form the government.

“And because there is no distinct majority, he (the King) says the right forum is the Dewan Rakyat. However, he said if the Dewan Rakyat failed to find a person with a majority, snap elections would be called,” Mahathir said this evening.

It is learned that apart from Mahathir, MPs had nominated Port Dickson MP Anwar Ibrahim and Pagoh MP Muhyiddin Yassin for the coveted position.

The Agong had been interviewing MPs on Tuesday and Wednesday to determine if anyone in his judgement was likely to command the confidence of the majority.

On Monday, Mahathir suddenly tendered his resignation but was appointed to hold the post in the interim.

Puthucheary, a former Nibong Tebal MP, said the constitution was modelled along the British system and that the procedure stated by Mahathir was “strictly flawed”.

“There could be greater risk and more complicated problems could arise,” he warned.

Soon after Mahathir submitted his resignation, retired Federal Court judge Gopal Sri Ram said the king would have to appoint a prime minister from among Dewan Rakyat members.

He said the appointment was at his discretion and could not be challenged in a court of law.

Article 43 (2)(a) of the Federal Constitution states that the king appoints as prime minister a member of the Dewan Rakyat who, in his judgment, is likely to command the confidence of the majority.

Sri Ram said the prime minister would then form a Cabinet to run his administration and preferably should go to the House as soon as possible and take a confidence vote.

“If he wins the vote, he remains in office with his Cabinet members. However, if he loses the vote, he goes back to the king to report the outcome. The prime minister can then request that the king dissolve the House for fresh elections to be held.

“If the request is refused, he has to tender his resignation for the king to appoint another MP as prime minister,” he had told FMT.

Another lawyer, Bastian Pius Vendargon, said Mahathir’s announcement was unprecedented as such a procedure could not be found in the supreme law.

“We are going to have a constitutional crisis if the procedure (to allow the Dewan Rakyat to elect the prime minister) proceeds,” he added.

He said to start with, the appointment of Mahathir as interim prime minister itself was not provided for in the constitution.

“The king should have accepted his resignation and looked for another MP to be appointed prime minister or accepted Mahathir’s advice to dissolve the legislature,” he added.

Lawyer Zainur Zakaria said he did not understand what the king meant when he said there was no distinct majority support.

“The constitution does not require a ‘distinct majority’. Article 43 (2)(a) states ‘who in his judgment is likely to command the confidence of the majority of the members of the House’,” he added.

Zainur, who is a former Malaysian Bar president, said his reading was that none of the candidates — Mahathir, Anwar or Muhyiddin — managed to get the support of the majority of the MPs.

“Majority to me means at least 112 supporting a candidate. So if Anwar has 92, that is not the majority,” he added.