Election results, the constitution and what happens next

According to convention, the incumbent prime minister, Najib Razak, should resign to make way for a new leader to be appointed.

COMMENT

By New Sin Yew

In these uncertain times, it is important for us to look to the Federal Constitution for guidance.

The appointment of prime minister

The Yang Di-Pertuan Agong is a constitutional monarch, and His Majesty’s roles and functions are laid out in the Federal Constitution.

Article 43, which provides for the appointment of the prime minister, states: “the Yang di-Pertuan Agong shall first appoint as perdana menteri (prime minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that house.”

The constitution makes no mention of political parties or coalitions, although those are a reality.

Political parties and coalitions only make it easier for the Agong to gauge who has the confidence of the majority of members of the House of Representatives. It is not the only way of determining confidence. Having a political party or coalition is certainly not a prerequisite.

Although the phrase “in his judgment” in Articles 43 and 40 provides the Agong with discretion in the appointment of a prime minister, such discretion must be exercised in accordance with the provisions of the Federal Constitution.

In this regard, the Federal Constitution is clear that only a member of the House of Representatives having the command of the confidence of the majority of that house can be appointed as prime minister.

Since it is evident that Dr Mahathir Mohamad commands the confidence of the majority of the House of Representatives, the Agong is constitutionally obligated to appoint him as prime minister.

Whether the Pakatan Harapan coalition was formerly registered is not and should not be a consideration.

What happens next

Unfortunately, the Federal Constitution is silent on how the above process is to take place. This means that we have to resort to convention.

It is now irrefutable that Najib Razak no longer commands the confidence of the majority of the House of Representatives.

The convention is that the incumbent prime minister, Najib Razak, should now resign to make way for the appointment of the new prime minister.

The latest example from the UK, which our system of government is based on, was in 2013 when Gordon Brown, then-leader of the Labour Party, having lost the general election resigned as prime minister to make way for David Cameron, the leader of the Conservative-Liberal Democrats coalition.

New Sin Yew is a lawyer.