Can the King Sack his Prime Minister
IS THE KING A CAPTIVE OF THE PRIME MINISTER- PARLIAMENT IS SOVEREIGN
Tun Dr. Mahathir’s allegations that the Yang Di Pertuan Agung (the King)being held captive to the prime minister of Malaysia Datuk Seri Najib Razak is mischievous, irresponsible and an untenable claim without proper legal or factual foundation.
The Federal constitution (Constitution) of Malaysia is clear that although all of government including the prime minster, the legislature and judiciary are referred to as the ‘King’s’ men by appointment and by convention, ultimate power in all government resides with parliament and not with the King.
The King’s role remains largely ceremonial and there is nothing in the Constitution that gives him any power or authority to dismiss a prime minister. The King executes all his duties and functions on the advise of his prime minister. Parliament is sovereign.
As an example of how parliamentary sovereignty works (and overrides other powers including that of the king and constitution), in 1914 during the first world war the sitting Parliament in the UK instead of dissolving itself passed an Act extending its own life. Parliament has that capacity and power. It is a power the opposition ought to inform itself of before criticising government or attempting to interpret the Constitution. There are many more examples where parliament’s power trumps that of the monarch or any one other arm of government including the judiciary and the constitution itself.
At any rate, Bagehot’s famous statement on the limited rights of the monarch remains relevant today in Malaysia as it always has been and remains so in the UK. The powers of the monarch are as he put it, limited to’ consult, to encourage and to warn’.
GOVERNMENT-PARLIAMENT AND THE CONSTITUTION
In the context of the Constitution government is elected by the people but appointed by the King (ministers and prime ministers) providing “they command the confidence of the majority of the House”.
The Constitution including Article 43(4)the only relevant Article on this point in contention is silent on the question of removal. It instead makes reference to a situation where the prime minister ‘ceases to command the confidence of the majority of the House of Representatives’ as far as his claim to the office is concerned. It makes no reference implied or express to any power therein in the King to remove the prime minister even in such a situation where the prime minister ceases to command the confidence of the majority in the House. In fact there is no power or authority in the King to remove a prime minister.
The King has limited discretionary powers in appointment of a prime minister as he is only nominal head of executive government. The convention that the King must always act on the advise of his government has always been followed in Malaysia, although constitutionally the prime minister has the power to act without consulting the King.
In practice and by convention, it is the King who holds office at the pleasure of parliament and its the prime minister and not the other way round as is suggested by some.
Parliament is sovereign. Parliament can make or unmake a King or a Queen: and as Blackstone reminds us:
“Parliament has sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws concerning matters of all possible denominations ecclesiastical or temporal, civil, military, maritime or criminal. This being the place where that absolute despotic power, which must in all Governments reside somewhere, is entrusted by the Constitution of those kingdoms”.
The King may be removed or his powers (as is the case with the Sultans) may be curtailed by the Prime Minister who holds sway over all of government. But these are exclusive powers of parliament in the hands of the prime minister of the day to exercise. And the conditions that go with such extreme contingencies as a sacking of a prime minister will not likely arise because the government of Malaysia like any other mature government has alternatives to dealing with extreme situations which are not often the subject of public discussion.
There was a close call however in the 1980’s and Dr. Mahathir exercised these powers as prime minister against the then King and can’t claim ignorance of the constitutional powers in the hands of the prime minister to exercise against any threat from any King.
DR. MAHATHIR IS BEING DISINGENUOUS
Dr. Mahathir’s allegations brings the King, the person and his office, into disrepute. It is something Dr. Mahathir ought to know from his 2 decades in the highest office as prime minister. During his tenure in that office Dr. Mahathir had to deal with recalcitrant rulers knowing full well where that power lay. That power remains with the prime minister and his parliament to this day.
When UMNO was declared illegal, the King at the time did not sack the government. If such a constitutional power did indeed exist in his hands he would have been compelled to dismiss the prime minster then. This is because Dr. Mahathir “continued to command the confidence of the majority of the House” and the King had to bow to that constitutional convention and its demands upon him.
The King like everyone else is bound by the Constitution. And the person with a grip on that Constitution is the prime minister of the day as head of parliament, the government and the legislature.
Dr. Mahathir’s petition (as he calls it) lacks legal standing, enforceability or legal effect in any sense. Regardless of who the petition is presented to and for what purpose it was created, the petition remains a document of questionable legality, integrity or mandate.
Many of the ‘signatories’ on the Mahathir document have claimed they never lent their names or signatures to his ‘petition’. Many more claim they were misled as to the contents of that ‘petition’. The King acting on the counsel of his advisors did the right thing by refusing to dignify Dr. Mahathir’s unlawful, unconstitutional request, showing him the door instead.
Under what legal or constitutional power, authority, mandate or precedent Dr. Mahathir acted in creating his petition is not known. Dr. Mahathir has no standing to ‘advise’ or approach the King that he could claim under the Constitution. He is not a minister of the crown and has no right to exercise in this regard with the King.
In the context of the Constitution it is clear that the King has no powers or authority the King can call upon if he were to constitutionally remove his prime minister except on the advise of his ministers (mainly the prime minister).
WHY MALAYSIA’S LEGAL INSTITUTIONS STRUGGLE WITH THE CONSTITUTION
The difficulty for constitutional courts and judges in Malaysia interpreting the Constitution on such matters arises from the fact that unlike most other constitutions, there are no known principles or codified rules for judges to resort to when dealing with matters of constitutional law. As a result Malaysian judges are compelled to draw from examples and precedents in the commonwealth particularly those of Britain and India when having to deal with problems relating to the interpretation of the Constitution. And that too comes with its own set of attendant problems. India is a republic and has no monarchy. Britain on the other hand relies heavily on its constitutional conventions than it does on any piece of legislation in this respect.
The history of constitutional interpretation in Malaysia’s courts is riddled with inconsistencies and general confusion.
In extreme situations the King may be called upon to suspend the normal functions of government or to remove government during an insurrection, war, civil war, emergency, insanity or incapacity of the prime minister. In the Malaysian context these contingencies, the threshold for the King’s intervention, is a lot higher than it is thought to be by some.
AUSTRALIA’S CONSTITUTIONAL CRISIS- A LESSON IN MISADVENTURE
The circumstances that triggered the sacking in 1975 of the Whitlam government of Australia were dire and exceptional. That incident is often used to aid the argument that the King can sack his prime minister.
There are no parallels within the Malaysian system and its constitution to be found in the sacking of the Whitlam government in Australia in 1975. And the kind of monarchy and parliamentary system of government Malaysia enjoys is not identical in many ways to that of Australia’s.
Prime Minister Whitlam’s actions in 1975 that triggered his sacking by the governor general according to some scholars,academics and commentators was an action akin to that of a coup.
Whitlam’s actions were not only unconstitutional they were downright illegal and constituted a threat to national security.
The last sacking of a government in the UK (and its prime minister) occurred during the reign of William IV. And that was a long time ago.
WHY MAHATHIR WILL NOT GET IT THROUGH WITH THE PRESENT KING
As head of parliament which is sovereign and the only legislative body with a lawful mandate and capacity to make and unmake laws, parliament under the prime minister may dethrone the King, disentitle the rulers and extend the life of parliament or suspend it altogether. These are but some of the powers of the government.
The reigning King of Malaysia DYMM Sultan Abdul Halim is a man of wisdom, a good temperament and experience in the office he holds today as King. No other reigning Sultan can claim that level of experience he has having now served two terms in the office of King. The King’s refuse to accede to Dr. Mahathir’s request supported by that petition was a sound decision.