Can The King Stop A Change Of Government

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Can the King stop a change of government?Yes, His Majesty can
By GK Ganesan The RumoursConfusion reigns
Rumours of party switchovers and ‘a change of government’ are rife
We are told that the current Prime Minister has ‘the numbers’ to form ‘a New Government’. Several questions come to mind:Q-1:    Is the 2018 government now dissolved? Surely one cannot construct something new until the old is no more?Q-2:    Is the formation of this ‘New Government’ constitutionally proper?  Some constitutional lawyers say this ‘can be done’. Is that true?Q-3:    If a ‘New Government’ is to be formed, do the citizens have any say in it? If No, should they?Q-4:    What is the role of the King in all this? Could his Majesty refuse to agree to this?Can such a change occur
Has the spirit of the Constitution been broken
Backtrack to May 2018On 10 May 2018, Tun Mahathir formed the current government. That has not been dissolved. So all this talk of a ‘New Government’ is rather odd
What does the law say?The law is not concerned with the various self-serving statements made by various politicians from opposing sides
The King is the Supreme Head of the FederationThe Constitution states that the King is the supreme head of the Federation.1The actual words used by the King when his Majesty took his Oath of Office under Article 37 (1) were:‘We… do solemnly and truly declare that We shall justly and faithfully perform Our duties in the administration of Malaysia in accordance with its laws and Constitution which have been promulgated… Further, We do solemnly and truly declare that We shall at all time protect the religion of Islam and uphold the rules of law and order in the Country.’You will note that these words point in only one direction: that the King is bound to perform his Majesty’s duties in accordance with the rule of law.The rule of law is not merely a set of words recorded in the Federal Constitution or in Parliamentary laws. We are also bound by centuries of the common law. And what does the common law say
The rule of law is a higher creature. It animates and moves the larger concepts of equity and justice. I have explained it here
“To act with justice, one must act in accordance with good conscience, good governance and transparency – isn’t that so?“So, is what the MPs are doing, right? Does that accord with these goodly principles?That is the question in the mind of the man in the street.Who will answer that question
Who has the power to run the Government?It is the King. The Constitution says so
It declares that such power is ‘vested’ in the King; and that those powers are ‘exercisable’ by either the King or by the Cabinet
If the Cabinet is no more, that leaves the King to do the job.2If there is to be a change, must the current Government be dissolved?Is there anything in the Constitution that allows this? That is one question
The second question is whether a New Government can be formed without such ‘dissolution’
The politicians say, ‘Yes’
All they have to do, they say, is to prove to the King that a Mr. X, ‘commands the confidence of the majority of the MPs’.3They argue that the current PM may ask the King to dissolve the government
Shortly afterwards – say the politicians – Mr. X will produce a list of more than 112 MPs supporting him
Is the King without choice?Is the King forced to appoint Mr. X? Has his Majesty no choice
Some lawyers say: when the King ‘exercises his constitutional functions’, his majesty must ‘act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet’.4This argument is not quite all there
Before he decides this issue, the Constitution allows the King to ask for further information.5Again, there is the argument that the Constitution requires the King to ‘act in accordance with the advice’ of  the PM or the Cabinet.’If the current PM meets the King and says he wishes to change the government, several questions arise
The first is logical: if the PM wishes to change the list of his supporters, the PM must first stop from being the prime minister. He must resign
He must then submit a fresh list to the King, get the King’s approval, become PM, and only then appoint a new cabinet.6Is that not odd? Does the current PM have the support of a majority of the MPs
Last we heard, he did. So why go see the King
But some people say,‘No. One goes into the Palace as PM, and leaves as PM’
Suppose that is correct: if so, what happens to the Election Manifesto, the current government’s promises since June 2018, and the hopes of most voters
Can that be cast aside? The crossbenchers say, with temerity, ‘Yes, we are entitled to it’
We shall come to that in a moment
Can the King ask for fresh elections?Can the King demand that the current PM, if he intends to ‘change the government’, ‘dissolve’ Parliament
Can he ask the PM to call for fresh elections
Every parliament has a maximum lifespan of 5 years from its first meeting.7The right of a government to rule, in theory, continues so long as one MP has most of the other MPs on his side
A government cannot be dissolved unless Parliament is dissolved.8“The Constitution does not say whether the PM can ‘switch governments’ and ‘swap’ one group of MPs for another.There are conventions from other countries we could fall back on, but then those countries do not have a Constitution like ours
The King can dissolve Parliament without asking anyone’s permission: Article 55(2)“The King has the power to dissolve parliament.“The Federal Constitution, in two clear provisions, gives this power to the King.I shall set them out for you:-Article 40(2) reads:‘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.’Again, Article 55(2) reads:‘The Yang di-Pertuan Agong may prorogue or dissolve Parliament.’“The King does not have to ask anyone’s permission for that. The Constitution does not tie his hands.9Further, the King has a constitutional discretion whether he wishes to do so.10Once Parliament is dissolved, the country must have another election
The custom is, the King usually leaves it to the PM to decide when the PM wishes to have fresh elections
But the power struggle this weekend is anything but ‘usual’
It has never happened before. An it flies in the face of the people’s electoral mandate
So the current situation frees the King from his need to ‘follow’ any previous custom
Can the King say, ‘No’?The answer is Yes
The King has certain powers under the Constitution
Under Article 40(2) of the Federal Constitution, the King may ‘act in his discretion’ in appointing ‘a prime minister’.11So as a stopgap measure, the King can use his own discretion on who he wants to appoint as the ‘next prime minister’
 So that gives the King the power to decide who Mr. X shall be.12The King may also say that he has no power to dissolve the government under the Constitution unless there has been a vote of no confidence in Parliament
This has not happened, yet
Even if it does, the King may use his discretion and still call for a fresh election
As pointed out before, if more than 112 MPs vote the current government out, the first person to go would be the current serving PM
It would be odd if the current PM turns up at the Palace and says he now has a list of more than 112 MPS that support him for his appointment as PM
In such a scenario, the King could exercise his constitutional discretion13 to refuse the appointment of a prime minister
Or he could say, ‘I am prepared to appoint Mr. Y, if he can get the majority.’What then
The opposing argument is this: the King has no choice but ‘must act on the advice’ of the ‘Prime Minister’.14“If that is right, ‘to advise’ the King, the ‘advisor’ must still be ‘the Prime Minister’.So can you see? We are running in circles
What was the mandate given to current leaders and the PM in May 2018?Despite massive gerrymandering, prior to the run-up to the 14th General Elections  [and no one has forgotten that: see here], the overall feeling then was the rakyat no longer wished to have anything to do with the previous regime, or its representatives
The nation wished to stop the abuse of power and kleptocracy
It wished to prosecute those who had robbed and continued to rob the nation of its resources
To ‘change’ the government in this way, to defy the wishes of a people who refuse to be ruled by elements of the previous regime — that is nothing but an abuse of the law, and a mere exploitation of numbers: that is against the spirit of the Constitution
The proper thing to do would be to call for an election. In this way, the nation can determine for itself who should govern it
Wayang Kulit ?While the exploitation of numbers could change a government, the next election cannot be put off forever
And those who come to polls will discover what the intent of the rakyat is
There is a great deal of fear that any new government – which has as its constituents made of MPs of questionable integrity, would stultify the prosecution of all offenders
“Those prosecutions would become, in words and deeds, a mere chimera, a façade, and a wayang kulit.15The ‘kulit’ would dance to the rhythm of the master puppeteer, the dhalang.Does a change of government prejudice the nation?Uncertainty is bad. It is a badge of instability
In 1992, James Carville was a strategist for Bill Clinton. Clinton successfully ran for President against the incumbent, George Bush
It was Carville who coined the phrase, ‘The economy, stupid’
When a nation becomes unstable, by a game based on numbers, it injures an already tottering economy
Such a government drives away investors. It sends the wrong message
To change the government at this stage – in this way – would be to ruin the economy
The consequences would alienate the people from its leaders
What next?We shall no doubt see what the desperate – and not so wise – members of parliament do in the next few days
But politicians must remember this:“We did not put MPs in parliament to play Russian roulette with our government, our lives, and the future of our children.Much depends, also, on the King, and how he will exercise his discretion
We hope his Majesty will look into the hearts of his people
We know he will

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