Most Malaysians breathed a sigh of relief when the palace announced that the Yang di-Pertuan Agong, after the meeting of rulers, found that a state of emergency is not necessary to combat Covid-19 because the government has done a good job.
Had Prime Minister Muhyiddin Yassin’s request been given the royal consent, it would have been a “self-coup” against democracy, namely, a coup by him to expand his power at the expense of our democratic rights, institutions and process.
With the suspension of Parliament, he could pass the 2021 Budget without the elected representatives’ scrutiny. He could override the power of state governments. There would be no check and balance.
How would this have affected our constitutional monarchy?
Much has been discussed by learned constitutional experts on the royal discretionary power with respect to the executive’s advice for Emergency Proclamation, concerning Article 150(1) and Article 40(2) of the Federal Constitution.
I am specifically interested in the constitutional implications of this proposed emergency being driven and justified by the avoidance of an election, openly admitted to by, among others, Federal Territories Minister Annuar Musa and Deputy Minister of Energy and Natural Resources Ali Biju, presented on certain media as an either-or choice between the 15th general election (GE15) and a Health Emergency.
What does the Federal Constitution say about the need for an election? We need to look at three clauses in Article 43 and Article 40.
Article 43(2)(a) stipulates:
“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.”
while Article 43(4) reads,
“If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.”
Article 40(2) is reproduced here in full for our interests in (a) and (b):
“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;
(b) the withholding of consent to a request for the dissolution of Parliament;
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting, and in any other case mentioned in this Constitution.”
The provision does not mention budget, but by Westminster convention, a government losing a budget is losing the confidence of the Parliament, which is the circumstance provided for in Article 43(4).
Reading them together, the constitutional pathways for a new election and not having one after a parliamentary budget vote depends on three decisions respectively made by the Parliament, the prime minister and the King (see chart):
Does the Parliament approve (A) or reject (B) the government’s budget?
In the event of a budget defeat (B), tantamount to a vote of no-confidence, does the prime minister tender his resignation (C) or seek the dissolution of the Parliament for a new election (D)?
In the event of the prime minister seeking a new election (D), does the King consent to his request (E) or withholds his consent (F)?
Now, no election will take place in three pathways:
First, the Parliament simply approves the government’s budget (A), it would be business as usual (green line).
Second, after a budget defeat (B), the prime minister resigns (C), paving way for the King to appoint a new prime minister (G) (blue line).
Third, after a budget defeat (B), the prime minister seeks a new election (D) but the King withholds his consent (F) and instead chooses a new prime minister (G) (red dotted line).
Only one pathway leads to an election: after a budget defeat (B), the prime minister seeks a new election (D) and the King consents to it (E) (solid red line).
If Muhyiddin does not want an election, he should make sure he wins the budget vote (A) or resign if he loses it (B). With the raging Covid-19 pandemic, even if he seeks a new election (C), would the King reject it (F) and appoint a new prime minister (G)?
Therefore, no election is already guaranteed by the King’s disapproval. Why must the Parliament be suspended to avoid a new election? Why can’t Muhyiddin simply resign or the King appoint a new prime minister?
By presenting an emergency as the only alternative to an election, does it not imply that the King cannot appoint anyone else to be prime minister, and since Muhyiddin cannot get a fresh election, then the Parliament must not be allowed to vote down his budget?
Then, the self-coup is not only against democracy but also against constitutional monarchy too.
If the “no-election emergency” was proclaimed, the King would have lost his absolute discretionary power under Article 40(2)(b) read with Article 43(4) to choose between a new election and a new prime minister.
In the future, any prime minister foreseeing his or her sacking by the Parliament can ask the King to pre-emptively suspend the Parliament because the prime minister’s office belongs to the incumbent and no successor must be appointed.
Did Muhyiddin or his advisors expect the King and his brother rulers to be oblivious of this grave consequence of effectively suspending Article 40(2)(b) or Article 43(4)?
Now, any wonder why the rulers issued a separate statement after that of the Agong that read, “The Rulers hold that it is important to respect the check and balance mechanism between different branches of the Government and His Majesty to balance various demands to ensure the prevailing of justice and to limit (in red) any element of power abuse.”?
Muhyiddin’s “no-election emergency” defeat should be read as a royal rejection of an unconstitutional request, rather than generic precedence of the royal discretionary power under Article 150(1), I would humbly argue.
After all, an emergency proclaimed under Article 150(1) is to protect the security, economic life and public order, not covering the prime minister’s job security and certainly not at the expense of royal discretionary power in Article 40(2) and Article 43(4).