Written by: Averroes
(1.0) Introduction
As of 16th August 2021, the Malaysian Prime Minister (PM) Mahiaddin Yassin resigned from his post, but will remain as the interim Prime Minister. He did so after a special meeting with his cabinet members. The Yang di-Pertuan Agong (YDPA) withheld his discretion to dissolve Parliament and stop snap elections as the Covid-19 pandemic has worsen. The PM concurred with his majesty on that issue.
His resignation went live as he spoke to the rakyat and hoped for a better government to be formed. The resignation was also confirmed by Khairy Jamalyddin on his Instagram, whom he led the government's COVID-19 vaccination programme.
When the YDPA received the resignation letters, all of his cabinet members falls down. The PM has been in office for 17 months, probably the shortest out of all the Malaysian Prime Ministers. If you would like to read an article regarding command the majority of support in Dewan Rakyat, you may read here.
Before his resignation, there was a last ditch attempt to win over the hearts of the opposition, but he has faced severe criticism after broadcasting it live on television. The possible candidate for Prime Minister may be Anwar Ibrahim, however he only commands 90 MPs support, which he requires at least 111.
We can extrapolate here that no ones has a clear majority as all the number of support so far are obscure and vague. Apart from Anwar, among the competitors for the post would be Ismail Sabri Yaakob, Tengku Razaleigh Hamzah, Hishamuddin Hussein.
Tun Dr. Mahathir Mohammad proposed for a bipartisan national recovery council, MAGERAN, unity government and all sorts of eccentric ideas previously. However as of now, we would have to wait and observe the progress of who has the majority support and may be appointed by the YDPA as Prime Minister while the caretaker government is in operation.
The question is, what is the caretaker government and the Prime Minister. What are their functions and why are they important?
(2.0) Case laws and Constitutional Conventions
We shall refer to the following cases to explain on the conventional roles of the caretaker government and how it has become a binding precedent within out jurisdiction, before analysing these them into our current status quo (post-resignation of Mahiaddin);
(2.1) Powers of Caretaker government and are their advise binding onto the YDPA?
In Mohd Norkhairi bin Mat Darus lwn Ketua Polis Negara dan lain-lain [2009] 8 MLJ 741, the applicant was detained under section 4(1) of the Emergency (Public Order and Prevention of Crime) 1969. The detention was that the applicant spearheaded a group of motorcycle robbers that was became contentious in Kuantan, Pahang that was detrimental to public order and criminal activities.
The applicant was not satisfied from being detained, hence he filed notice of motion to challenge the order. Interestingly, one of the reasons was that, the Deputy Minister of Internal Security had no power to issue any detention order was he was part of a caretaker government.
The court held at paragraph 5, despite being a caretaker government and parliament dissolved, they are still able to sign and endorse a detention order for full effect. The court cited Dr. Shad Faruqi whom clarified that;
"However, by convention the caretaker government should not make any politically controversial decisions such as making appointments or dismissals in key posts, make important policy decisions, implement new laws or commit the incoming government into any expenditure."
Years before 2012, in 1967 the case of Stephen Kalong Ningkan v Government of Malaysia [1968] 1 MLJ 119, had proposals of the "dissolution of Council Negri", the Divisional Advoisory Councils and District Councils and to ramp up general elections, pending such to "have a caretaker government".
On the contrary, if we read Public Prosecutor v Mohd Amin bin Mohd Razali & Ors [2000] 4 MLJ 679; [2001] 1 CLJ 75, when Parliament is dissolved, the Yang di-Pertuan Agong is not bound by the advice of the Caretaker Government under article 40 and 40(1A) of the Federal Constitution. He has discretion to accept or refute. The Caretaker government is "not the real government".
(2.2) Yang di-Pertuan Agong and Cabinet (even caretaker) must exist
In Abdul Ghani bin Ali @ Ahmad & Ors v Public Prosecutor [2001] 3 MLJ 561, the court referred to Sheridan and Groves in their book, The Constitution of Malaysia which they commented on article 43 of the Federal Constitution. At page 89, they alluded that;
"Ministers (other than the prime minister) may normally be drawn from either House of Parliament, but a minister can be appointed while Parliament is dissolved if he was a member of the dissolved lower House. He may, however, continue in office if, in the new Parliament, he is either re-elected or becomes a senator."
From the Abdul Ghani case mentioned above, during an emergency, a caretaker government could advise the Yang di-Pertuan Agong and that a Proclamation was valid, issued by such caretaker government. The court interpreted that article 43(2) of the Federal Constitution implies to enable for the appointment for members of a caretaker government after parliament is dissolved.
Malaysia adopted the convention of caretaker government from India in Madan Murari v Choudhuri Charan Singh AIR 1980 Calcutta 95 that a government continues in administration of office, during the time that Parliament is dissolved.
Madan Murari case referred to more authorities as below;
In Samsher Singh v State of Punjab AIR 1974 SC 2192 took these legal literature into account;
i) Constitutional and Administrative Law by SA de Smith (3rd Ed), page 153; "When Parliament is dissolved, the government still runs the office. They cease to be a caretaker once there are election results or that they have lost majority in the house which they have to tender resignation."
ii) O Hood Phillips' Constitutional and Administrative Law (6th Ed), page 145; "When the government is defeated in the House of Commons by a motion-of-no-confidence, the Prime Minister must either ask for a dissolution or resign himself together with his ministerial colleagues. When a dissolution occurs, the Ministers retain office until the coming general elections."
In addition, UNR Rao v Indira Gandhi AIR 1971 SC 1002, relates to the President of India, who is also the head of state, similar to the Yang di-Pertuan Agong. The President could not execute his powers without the advice and aid from the Council of Ministers, especially when Parliament is dissolved.
Even if the cases of Madan Murari, Samsher Singh and UNR Rao cases are from India, it is persuasive and are adopted into Malaysia as depicted in Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129 which supports the notion that the Indian Constitution is the model for Malaysia's Constitution.
Karam Singh case argues that as elaborated in Vol 2 of Halsbury's Laws of Malaysia proffers the point on article 43(1) of the Federal Constitution, whereby it is mandatory for there to be a Cabinet at all time under the Yang di-Pertuan Agong's helm. Both the Cabinet and Yang di-Pertuan Agong cannot be separated at all times, even when Parliament is dissolved.
(3.0) Legal analysis
To familiarise ourselves with the current status quo, since Mahiaddin and his whole cabinet have resigned, there must be a cabinet that has to govern the country until an 'actual government' elected or appointed by the YDPA is legally made.
There must be the YDPA and a cabinet which they "must exist co-exist" as stipulated under case laws and article 43(1) and (2) of the Federal Constitution. Usually, a caretaker government exists when the PM advises the YDPA to dissolve Parliament.
In this situation, the PM resigns and did not request for dissolution from the YDPA. Hence, there would not be any snap elections. Both the PM and YDPA agreed that having snap elections would aggravate the number of COVID-19 cases.
Therefore, according to constitutional conventions and the case laws adumbrated, the YDPA can appoint a new PM, while Mahiaddin temporarily becomes the interim Prime Minister. In the process of finding the suitable candidate with the majority support, the contenders must prove to the YDPA their statutory declarations or evidence as who has the majority to be the new PM.
This is what happened back in 24th February 2020, that the YDPA appointed Tun Dr. Mahathir as interim Prime Minister until a new PM is chosen. Mahathir resigned after the notorious Sheraton Move, which was alleged to have destroyed the mandate of the people in the 14th General Elections. The new PM was appointed after 222 MPs were interviewed and Mahiaddin succeeded during that time.
While Mahiaddin is the interim Prime Minister, he could advise the YDPA on very limited matters and that the YDPA has the right to reject his advice, since he is only the 'caretaker' and not the 'actual' government.
(4.0) Conclusion
To conclude, Mahiaddin becomes the interim PM in this Caretaker Government while awaiting potential candidates to be the new Prime Minister and government. The YDPA appoints the new PM directly as he has withheld his discretion to dissolve Parliament and prevented snap elections, as it would increase the number of COVID-19 cases drastically.
(5.0) References;
Nurnazida Nazri. The Discretionary Functions of the Yang Di-Pertuan Agong: A Conceptual Approach [2014] 1 MLJ cxxvi.
Rebecca Ratcliffe. (August, 2021) Malaysian prime minister resigns but remains interim leader. Retrieved from, https://www.theguardian.com/world/2021/aug/16/malaysian-prime-minister-resigns-but-remains-interim-leader
AlJazeera. (August, 2021) Malaysia’s Muhyiddin resigns after troubled 17 months in power. Retrieved from, https://www.aljazeera.com/news/2021/8/16/malaysias-muhyiddin-resigns-after-troubled-17-months-in-power
Chu, M., Rozanna Latiff & Lee. Liz., (August, 2021) Malaysian PM Muhyiddin resigns as political crisis escalates. Retrieved from, https://www.reuters.com/world/asia-pacific/malaysian-pm-expected-resign-after-months-political-turmoil-2021-08-16/
Channel News Asia. (February, 2020) Malaysian king appoints Mahathir as interim PM after accepting his resignation. Retrieved from, https://www.channelnewsasia.com/asia/malaysia-king-appoints-mahathir-as-interim-prime-minister-779706
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