The three options that Agong will have to consider
Published on: Sunday, September 27, 2020
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Some news articles report DSAI as claiming to have close to two-third majority. This, if true, would be more than sufficient for the formation of a new government with DSAI as the Prime Minister.
Dato’ Seri Ahmad Zahid Hamidi, the President of the United Malays National Organisation (“Umno”) and Member of Parliament (“MP”) for Bagan Datuk, claim to have been told that a big chunk of Umno and Barisan Nasional MPs have voiced their support for DSAI.
The royal palace has confirmed that DSAI and his wife, Dato Seri Wan Azizah Wan Ismail, were scheduled to have an audience before the Yang di-Pertuan Agong (“YDPA”) on 22nd September.
The scheduled audience had to be postponed because the YDPA is undergoing treatment at the National Heart Institute.
Once DSAI gets his audience with YDPA, step 1 is to convince YDPA that Tan Sri Muhyiddin bin Yassin (“TSMY”) no longer commands the confidence of the majority of the members of the House of Representatives (“Dewan Rakyat”).
He can do so by demonstrating that it is in fact he who commands the confidence of the majority. For example, it should suffice if DSAI can adduce at least 112 statutory declarations affirmed by Members of the Dewan Rakyat.
If/once TSMY ceases to command the confidence of the majority, the following are some possible scenarios:
Scenario A: TSMY requests that Parliament be dissolved and the YDPA grants the request
Pursuant to Article 43(4) of the Federal Constitution, TSMY has the option of requesting that the YDPA dissolve Parliament.
If the YDPA grants the request then a general election will then be held within sixty days from the date of the dissolution of Parliament [Article 55(4) of the Federal Constitution]
Scenario B: TSMY requests that Parliament be dissolved and the YDPA denies the request
The YDPA has the discretion to “[withhold] consent to a request for the dissolution of Parliament” [Article 40(2)(b) of the Federal Constitution].
If the YDPA decides to exercise his discretion to withhold consent to TSMY’s request then the YDPA will exercise his discretion to appoint an individual as Prime Minister [Article 40(2)(a) of the Federal Constitution] whom in the YDPA’s judgement, is likely to command confidence of majority of the members of the Dewan Rakyat [Article 43(2)(a) of the Federal Constitution].
If this person is DSAI, he will be sworn in as 9th Prime Minister of Malaysia.
Scenario C: TSMY does not request that Parliament be dissolved
TSMY will have to tender the resignation of the Cabinet [Article 43(4) of the Federal Constitution], which includes himself as the individual appointed to preside over the Cabinet [Article 43(2)(a) of the Federal Constitution].
After which, the YDPA will exercise his discretion to appoint an individual as Prime Minister whom in the YDPA’s judgement, is likely to command confidence of majority of the members of the Dewan Rakyat.
If this person is DSAI, he will be sworn in as 9th Prime Minister of Malaysia.
Joshua Wu, lawyer
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