Can the King change his mind? by GK Ganesan

Do read my comments below

Can the King change his mind?

Mahathir claims that there is something wrong with the numbers Muhyiddin showed the King. Can the King reconsider his decision? Can he change his mind? Can he examine the facts? Can he postpone the swearing-in this morning? This must be the mother of all the Constitutional riddles!

by GK Ganesan  February 29, 2020 12400 Views

Can the King recall his decision?

If Malaysians were on tenterhooks for the last 10 days, they are now sitting on a bed of nails.

The Game of Thrones marches on

Yesterday Anwar Ibrahim, the leader of the Coalition of Hope (Pakatan Harapan) claimed that he and his estranged ally, Mahathir, [the ‘interim Prime Minister’] had enough MPs on their side. Together, they wished to nominate Mahathir as prime minister.

As this was a weekend, they planned to approach the monarch on Monday.

Muhyiddin Yassin beat them to it.

The List Muhyiddin had shown the King

The list and presumably supporting documents Muhyiddin showed to the King must have contained more than the minimum number of MPs required to support the aspiring Prime Minister: 112, or more.

By all accounts, Muhyiddin’s numbers were wafer-thin.

The King decides

This evening, Dato Ahmad Fadil Shamsuddin,1 conveyed the King’s decision to the nation.

The letter announced that the King has determined that Tan Sri Muhyiddin Yassin, who was ‘likely to command the confidence of the majority of the MPs’ shall be sworn in as the eighth Prime Minister of Malaysia.

The swearing-in is scheduled at 10.30 a.m. tomorrow, at the Palace.

Now a new twist…

Last evening, Baru Bian, the Selangau MP from Sarawak, claimed that he did not support Muhyiddin. He has now thrown his weight behind Mahathir.

There are similar, other claims. One is not sure if these are true or false.

Mahathir claims that when he no longer has the requisite majority so as to invoke Article 43(2)(a) which reads…

This creates constitutional uncertainty

Mahathir’s claim now creates uncertainty.

It raises the awkward question whether at the time the King made his decision to appoint Muhyiddin; he did not have before him,  the correct facts or the evidence to support those facts – namely that Muhyiddin had the requisite numbers.

This raises another constitutional conundrum

There is very little authority on whether the King can…

(1) change his mind on the appointment of a prime minister, and if so,

(2) whether he can ‘recall’ his decision [read, ‘change his mind’] made earlier in favour of Muhyiddin.

Can the King’s decision be recalled?

Some lawyers make a two-point argument:

First, that once the King has made up his mind on the subject, His Majesty’s decision cannot be questioned; and must be obeyed. That argument suggests that the King can never make a mistake or recall his decision.

The second part of the argument repeats what the letter from the Palace states:

His Majesty had concluded that ‘in the [King’s] judgement … Muhyiddin is ‘likely’ to command the confidence of a majority of the MPs’.

First things first – Muhyiddin has not been sworn in

The first and most important decision is that Muhyiddin has not been sworn in.

That provides the King with an opportunity to examine the basis of his decision: it could be right, or erroneous.

So this removes any need for haste.

Second – The King must ‘act in accordance with the Constitution and the Rule of Law’

The other side of the argument is, the King must act in accordance with the law. The King must act in accordance with the Constitution and the laws of the country.

When the King took his Oath of Office, he promised that he would rule the country in accordance with the Constitution and the rules of law: [Article 37 (1)].2

You will note that the words,

‘We shall justly and faithfully perform Our duties in the administration of Malaysia in accordance with its laws and Constitution, … and uphold the rules of law and order’ –

… mean the King is bound to perform his duties in accordance with the rule of law

Third, Article 43(2)(a)

The second point of importance is the way Article 43(2)(a) is worded. It states that the

‘[The] Cabinet shall be appointed as follows, that is to say:

(a) the (King) shall first appoint as… Prime Minister to preside over the Cabinet a member of the [Dewan Rakyat] who in his judgement is likely to command the confidence of the majority of the members of the House….’.

Fourth – The King’s judgement under Article 43(2)(a) as to ‘likelihood’ is based on a Two-Phase process

First, the two phrases. The King has the discretion to appoint as PM someone…

(1),  ‘who in his judgement is likely to command the confidence,’ and

(2),  ‘of the majority of the members of that House’.

Fifth – Phase One

Under Phase-1, the King has to ensure that the numbers are accurate and free from error.

Otherwise, how would his majesty know that Muhyiddin has a ‘majority’?

Sixth – Phase Two

Having dealt with Phase-1,  in Phase-2, the King examines the ‘likelihood’ question: and then the King exercises his ‘judgement’.

That is how Article 43(2)(a) works. Step-by-step.

Seventh- But we cannot even get to Phase-2

We need to deal with some simple, and outstanding,  issues in Phase-1 still.

So let us go there…

Eighth – The question of who has the ‘majority’ is an objective fact – it can be independently tested

The phrase, ‘of the majority of the members of that  House’ must exceed or be equal to the number 112.
It is a simple arithmetic issue.
It is straightforward.
The King can test it.
It is a matter of factual accuracy.

Ninth – Dispute over numbers

Mahathir and Anwar say that Muhyiddin’s side got their numbers wrong. They say that when Muhyiddin advised the King, the King was not shown the right numbers.

Muhyiddin obviously denies this.

So there is a dispute on the numbers.

Only the King can resolve this question. Leave that for the moment.

Tenth – Three questions arise from this

These are the constitutional questions that come to mind.

(1)  What is the significance of this dispute?
(2)  Should the King resolve this dispute?
(3)  And if so, how should the King resolve it?

Eleventh – A fallacious argument

In answer to this, some lawyers might argue, that under Article 40(1) of the Constitution,

‘the [King] may act in his discretion in … (a) the appointment of a Prime Minister’.

This argument is incorrect.
‘Discretion’ does not mean ‘capriciousness’.3
The King’s duties are constitutional.
His Majesty must act within the four corners of the Constitution.
We will come to that point in a moment.

Twelfth – A serious question exists over the concept of ‘majority’ – does this mean the King’s decision is not a ‘constitutional decision’?

There is now a serious question over the factual accuracy of Muhyiddin Yassin’s claim over his numbers.

For the King to exercise his ‘judgement’ over the ‘likelihood’ that Muhyiddin was ‘likely to command the confidence of the majority of the Dewan Rakyat’, the numbers have to be right.

Thirteenth – A decision made on an erroneous factual assumption is not a ‘decision’ under the Constitution

If the numbers are wrong, with respect, the King’s decision could not have been ‘in accordance with the Constitution’.
The moment the King’s discretion is said to be exercised outside of the Constitution; that decision is not a ‘decision’ in law.
It is a nullity.

As such the decision made by the King was not a decision ‘in accordance with the Constitution’ – as has been promised by the King in his Oath of office: [Article 37(1)] 4

Since an erroneous decision made by the King is not ‘decision’ in law.

“The King, therefore, has in fact made ‘no decision’.

Fourteenth – There is an allegation of a serious flaw in how Article 43(2)(a) & 40(2)(a) have been ‘applied’

If this allegation is true, then any decision made by the King, with the greatest deference to his Majesty, would not fall within the definition of ‘a decision under the Constitution’.
It is as if the King had made no decision.

Fifteenth – Can the King re-examine this question and ask for more information?

I think so.

The King, in my respectful opinion, may choose to examine the issue all over again.
Under Article 40(2)(a),
‘the King may act in his discretion on the performance of the following functions, that is to say: (a) the appointment of a Prime Minister…’.
Under Article 39, the right to govern the country is vested in the King, and it is subject to the Constitution.
Second, under Article 40(1), the King can ask for particulars and examine them. This is because the Constitution says that: –
‘in the exercise of his functions under this Constitution… [The King] shall act in accordance with the advice of the Cabinet [this is not relevant in this dispute],
[and here come the important words]
‘except as otherwise provided by this Constitution [these words are crucial];
but shall be entitled, at his request, to any information concerning the government of the Federation …. 5

Sixteenth – The question the King is asked to decide is one ‘concerning the government of the Federation’

Because of that, the King is entitled to ask for,

‘any information concerning the government of the Federation’.
Therefore, the King can now ask the parties that he wants more information about whether their claims are justified, accurate, empirical, and can be objectively examined.

Seventeenth – King can recall his decision, or at least, postpone his decision pending his further investigation

Consequently, there seem to be proper grounds for the King to recall his Majesty’s decision, examine the facts, and come to such decision as the King thinks is right.
What now?
It seems now that any other MP may now appear before the King and:

(1) request his Majesty to ‘vacate’ what has been a decision which was outside the constitution decision, and further:

(2) prove to the King that he, and not Muhyiddin, is the person who should be made the Prime Minister.

Remember the Third Question we spoke of earlier? [How to resolve this dispute?]

Question (3) has a simple answer.

Gather the entire Parliament in the Palace.

Give them a numbered sheet – so the voter can be identified.
All the MPs have to do is to write the name of their candidate and drop it in a box.
Then count.
If the numbers are all wrong, re-vote, recount.
If the numbers do not match, re-vote, recount.
If the numbers do not show any clear majority, ask for a snap election.
How much can the King do?
His Majesty has tried his best.
He has been at this for days on end now.
The nation owes him so much for that.

My comments :

Firstly this will be a great test for the King and the whole idea of a Constitutional Monarchy. How the King performs his role here will have great impact. These are exciting times.

This is not a question of cut off times. This is putting in place a government. The Constitution is clear - an MP (it is singular) who has majority support in Parliament is invited to be the PM and to form a government.

If a PM does not have majority support, then he will be voted out with a vote of no confidence at the very first sitting of Parliament. The whole exercise becomes futile. 

You do not even need a vote of no confidence. 

If the PM does not have majority support in Parliament any bill tabled before Parliament can be voted down. The Budget can be voted out. The government will not be able to function.  The government will fail.

So a minority government is a non starter. Hence the King has to determine one thing and one thing only. Does a PM have the majority support in Parliament?

The other matter to bear in mind is that we are a democracy and a Constitutional Monarchy. 

The roles of the Constitutional Monarchy are functionary. They perform an important function. But the roles are very precisely defined. 

The Monarch does not have much discretion in decision making. 

For example determining who has majority support in Parliament requires a simple head count. It is a functionary duty.

Even if an MP has a majority of one seat that is called a simple majority. 

That MP still becomes the PM and forms the government.

The issue at hand seems to be the method of counting. 

How does the King determine with certainty who has the majority?

How does the King count the heads?

Via Statutory Declaration? 

This is to show support - something that is not tangible.

There is no law that prevents an MP from shifting his support. 

SDs become quite irrelevant in this case.

Of course a situation without a government cannot go on for ever. 

There must be a resolution. 

More importantly there must be a firm resolution.   

For a certainty putting in place a PM who has does not have majority support in Parliament will give rise to a very short lived government.