COMMENT | With polling day fixed for May 9, 2018, there is much disinformation about the appointment of the prime minister when the results become known.
The two falsehoods widely disseminated in the mainstream media is firstly, the extent and scope of the discretion of the Yang di-Pertuan Agong in inviting a person to become the prime minister in order to form the next federal government.
Secondly, it is claimed that BN is regarded as “one party” while Pakatan Harapan is considered “a coalition”, and that this difference is relevant in computing the level of support in the Dewan Rakyat for the purpose of appointing a prime minister.
Fortunately, the Federal Constitution provides plain and clear answers, free from ambiguity, to debunk these lies. Article 40(2) provides that “the Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say : (a) the appointment of a prime minister”.
The words “in his discretion” may indicate that the Agong has a wide discretion.
However, Article 43(2)(a) substantially narrows such discretion by stating that the Agong shall appoint as prime minister “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” (emphasis added).
Hence, under the constitution, the King does not have a completely free hand. Instead, the prime minister so appointed must be:
i. a member of the Dewan Rakyat
(as opposed to being a senator in the Dewan Negara); and
ii. must be able to command the confidence of the majority, that is, at least 112 members of Parliament out of a total membership of 222.
These articles merely set out in express terms the constitutional convention which has existed for at least two centuries in numerous countries of the Westminister type of parliamentary government which Malaysia also has....