'Interim Prime Minister' - no legal justification or previous convention? AG's reported view flawed?

Interim Prime Minister - Does the Federal Constitution or any Act of Parliament provide for this specifically? Well, no it does not.

Similarly, when Parliament is dissolved and General Elections is held, there is also no specific provision that provides for a 'caretaker' government.

The King appoints the Prime Minister but then he/she must enjoy the confidence of the majority of MPs - so when Parliament is dissolved, there are no more MPs - so how can anyone enjoy the confidence of the majority of MPs...and when a PM ceases to enjoy this majority 'confidence', he cannot remain Prime Minister anymore and according to the Constitution, he should resign...

So how come we have a 'caretaker' government to take care of governance from the time the Parliament is dissolved until the election results are out and the King appoints a new Prime Minister? 

Well, it is by 'convention' - i.e. because we have been doing it like this before so we simply follow the past conventions...or practices. For such an important matter, laws should have been enacted long ago..

The Election Reform Committee formed after GE14 after PH came into power was supposed address, amongst others, this very question of 'caretaker' PM and Cabinet..

“Now, there are no laws or rules. We do it by convention. How should the caretaker government behave? As it is, the EC too does not know how they should behave,” he told a news conference here today. “After the dissolution, they still continue to run the country. How is that? So they run over other parties too,” he added, the last in jest.

So, now Parliament has not been dissolved, but the Prime Minister has resigned and now the King has appointed Dr Mahathir (our ex-PM) as the interim Prime Minister until the NEW Prime Minister is appointed. 

He is alone - what is his powers? What can he do and what can he not do?

When PH won the last GE, could not the 'caretaker' Prime Minister and Ministers 'hide evidence' of wrongdoings, etc...knowing they had lost and no more in power?

We need to re-look at who should ideally be the caretaker of executive power during this period between disolution of Parliament and the appointment of the NEW Prime Minister after the election results is announced.

39  Executive authority of Federation

The executive authority of the Federation shall be vested in the Yang di-Pertuan Agong and exercisable, subject to the provisions of any federal law and of the Second Schedule, by him or by the Cabinet or any Minister authorised by the Cabinet, but Parliament may by law confer executive functions on other persons.

43  Cabinet

(1) The Yang di-Pertuan Agong shall appoint a Jemaah Menteri (Cabinet of Ministers) to advise him in the exercise of his functions.

(2) The Cabinet shall be appointed as follows, that is to say:

(a) 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; and

(b) he shall on the advice of the Prime Minister appoint other Menteri (Ministers) from among the members of either House of Parliament;

but if an appointment is made while Parliament is dissolved a person who was a member of the last House of Representatives may be appointed but shall not continue to hold office after the beginning of the next session of Parliament unless, if he has been appointed Prime Minister, he is a member of the new House of Representatives, and in any other case he is a member either of that House or of the Senate.

(3) The Cabinet shall be collectively responsible to Parliament.

(4) 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.

(5) Subject to Clause (4), Ministers other than the Prime Minister shall hold office during the pleasure of the Yang di-Pertuan Agong, unless the appointment of any Minister shall have been revoked by the Yang di-Pertuan Agong on the advice of the Prime Minister but any Minister may resign his office.

Can the Prime Minister resign? Well, Article 43(5)(3) says 'any Minister may resign his office' - we are clear that Ministers can resign but what about a Prime Minister?

A Prime Minister on the other hand must resign when he/she 'ceases to command the confidence of the majority of the members of the House of Representatives' and when this happens, 'the Prime Minister shall tender the resignation of the Cabinet.'. So when a Prime Minister resigns, the Cabinet is also no more. 

So, Mahathir must have resigned because he 'ceases to command the confidence of the majority of the members of the House of Representatives'. Did the King check and see whether Mahathir still commanded the confidence of the majority before accepting the resignation of Mahathir and the entire Cabinet? Can anyone later sue Mahathir for resigning if he still commanded the confidence of the majority for the losses Malaysia suffered by reason of what he did?

Because there is a specific provision as to when a Prime Minister should resign - it may mean that he cannot resign for any other reason.

Rightly, I believe a Prime Minister should be allowed to resign for any other reasons like health reasons, physical or mental incapacity, 'personal' choice, etc ...and, if he do resign for such reason, should also the Cabinet be considered resigned for after all it is at the end of the day the Cabinet is the Cabinet of that particular Prime Minister - he chose them, they are his 'agents'...So, if PM resigns, the Cabinet automatically are resigned.

Likewise, if the Prime Minister dies in office, that would also mean immediate resignation of the entire Cabinet...and we wait for a new Prime Minister to be appointed, who then appoints his NEW Cabinet.

As you can see, there is a lot of 'speculations' here, and it is best that we enact laws or amend the Constitution to provide for the all these possible scenarios.

Interim Prime Minister - does our Constitution or law allow for it?

No, it does not. Looking at Article 43(2) in particular 'but if an appointment is made while Parliament is dissolved a person who was a member of the last House of Representatives may be appointed but shall not continue to hold office after the beginning of the next session of Parliament  ...', it says that 'a person' meaning ONE person may be appointed to hold the fort until the next Prime Minister is appointed after elections. 

So this may be a possible justification of a 'caretaker' of executive power but the provision is specific as to when this can be done, i.e. 'while Parliament is dissolved...'...and, as such, this section cannot be relied on to appoint an 'Interim Prime Minister' in our current situation because Parliament is still in existence.

But then, look at Article 39 which says that executive power is vested in the King '...or by the Cabinet or any Minister authorised by the Cabinet, but Parliament may by law confer executive functions on other persons...'  

So, if no Cabinet or 'any Minister authorized by Cabinet'(there can be NO Minister authorised by Cabinet if there is no more Cabinet), then executive power is vested with the King. Note, the Prime Minister alone does not have executive power - that power is with Cabinet. 

Do we have any 'law confer executive functions on other persons' ? Maybe, it is time for Parliament to enact laws that confer executive function on other persons when Parliament is dissolved until NEW PM(and Cabinet) is appointed, or when a Prime Minister resigns or dies until a new PM(and Cabinet) is appointed? 

Who, other than the King, should be holding the 'executive function' and/or power in periods when we do not have a Prime Minister(or Cabinet)? Maybe, it is best that the power is given to the Speaker of the Dewan Rakyat or the Speaker of the Senate, or maybe even the Attorney General. 

It may not be fair or good to hand over to the former Prime Minister and/or any of the former Cabinet Ministers? After all, there has always been allegations of abuse of government power, resources and machinery during general elections  - and this may be extinguished if interim holder or caretaker of 'executive function/powers is not a former Prime Minister/member of Cabinet? 

Certainly not someone who will be contesting in the upcoming General Elections. Maybe best not any former MPs - maybe the Attorney General or the Solicitor General or Speaker of the Senate...

Has the King the right to delegate his power to anyone he chooses - it would be better if we have clear laws as to who this power ought to be delegated to by the King when Parliament is dissolved or when a Prime Minister resigns or dies in office.

At the end of the day, I see no clear provisions in the Constitution or existing law that allows for Dr Mahathir to be INTERIM PRIME Minister... It is also odd, given that the only reason a PM resigns is because he has lost the confidence of the majority of MPs, and then the King appoints he who has lost the confidence required. Someone else should have been appointed as 'interim PM' in such a situation as a resignation of the sitting PM, for reasons not being the dissolution of Parliament

Are we having a CONSTITUTIONAL CRISIS? Or a 'crisis in government'? All because of lack of clear law or provisions of law. This matter being looked at presently is with regard to 'caretaker government' after Parliament is dissolved ..but no laws enacted yet..Maybe we should also look at laws when a PM resigns

 ..

The interim lacuna in our Executive Branch of government MUST be immediately resolved. 

The one who NOW commands the confidence of the majority of MPs must be speedily appointed as NEW Prime Minister...

Conventions may be relied for in the period when Parliament dissolves and a new Prime Minister is appointed after General Elections - but there is no convention in this new situation when the Prime Minister and Cabinet resigns suddenly, is there?

Remember that it is the Cabinet, i.e. the relevant Minister, that delegates its power to all in civil service ...and, if the one who delegates is no more, then every decision or action by the various Federal Ministries, Agencies and Departments may also be invalid...UNLESS there is a LAW that gives them directly the power, which is not the usual case for most laws confers powers on Ministers...and we have no Ministers now. Minister also have to personally exercise certain powers...many appeals are directed and resolved by the Minister.

The only public servants not affected may be those appointed by the King - the Attorney General, Judges, head of MACC, SUHAKAM, etc. Those who get their power from Ministers are all affected.. 

There were some speculation that it may be days or weeks before we have a NEW Prime Minister - this cannot be. The new PM should be speedily appointed in hours or 1-2 days, and thereafter the Cabinet.  

Just saw the AG's comments...but I do not agree unless he can provide needed legal justification

Was waiting for Attorney General Tommy Thomas's statement or press conference which should have shed some light on the legality or illegality of the current situation of being under an 'INTERIM PRIME MINISTER'... Sadly, the power of the YDP Agung is also defined by law - he is not omnipotent. 

Anyway, only just saw a Malaysiakini report, about the AG's comments.

The AG seems to say that there is nothing wrong with the appointment of an 'Interim Prime Minister'. He seems to say that there is no time limit for Dr M to remain interim Prime Minister, He seems to say that the interim Prime Minister can even appoint 'interim' Cabinet and have all the powers attached to the office of the Prime Minister...maybe the media got it wrong.

There is no time limit attached to the office of the interim prime minister, who may decide whether to appoint cabinet members at his discretion, said Attorney-General Tommy Thomas.

"An interim PM has all the powers attached to the office of prime minister. That includes appointing or not appointing cabinet members as he wishes.

In my opinion, the AG have erred. Or rather, he is wrong. What is his legal basis of his legal opinion? There are no conventions in Malaysia for this situation. Appoint Cabinet - Is he saying that an interim Prime Minister or a 'caretaker' PM can exercise all the powers of the Prime Minister? Even by convention, that caretaker PM and cabinet, by convention, has no power to appoint any NEW members of the Cabinet, or exercise all powers of the PM? 

Maybe the Attorney General needs to re-visit his position. Maybe, he should also seek other legal advice. 

Give us a proper statement that we all can refer to and understand, just like the statement you issued when you decided to discontinue proceedings against LTTE 12.

One cannot act as one pleases in situation where there is no clear legal provisions, nor even any past conventions in Malaysia. 

The situation can and ought to be speedily resolved, best by today - if not, tomorrow. 

Establishing whether the MP enjoys the confidence of the majority can be done fast - through SDs or even personal meet with each and every MP by the King so that the King can be satisfied whether the person to be appointed Prime Minister truly enjoys the confidence of the majority of MPs. A phone call to the MP can also be a way to establish whether the MP supports a particular Prime Ministerial candidate.

Votes of confidence in Parliament - today A may enjoy the confidence of the majority...but next week, he may no longer. There is no need to even wait for March 10 to establish whether the new PM candidate has the support of the majority or not..

YDP Agung should not delay the appointment of the new Prime Minister. There are already media reports of many MPs who have given their support to Dr. M to be the Prime Minister, and if Dr M is willing to re-consider, then he should be speedily appointed by the King as the new Prime Minister.

AG, please respond and tell me if I am wrong. This is after all just my own personal opinion.

AG: No time limit for interim PM, can appoint cabinet members

Published: Feb 24th, 2020  |  Modified: Feb 24th, 2020

 

There is no time limit attached to the office of the interim prime minister, who may decide whether to appoint cabinet members at his discretion, said Attorney-General Tommy Thomas.

"An interim PM has all the powers attached to the office of prime minister. That includes appointing or not appointing cabinet members as he wishes. 

"Because Dewan Rakyat sits from March 10, a confidence motion can be moved for him or anyone else. There is no time limit to the office of an interim prime minister. Hence to state there is a 10-day or any other definite period is wrong," Thomas (above) told Malaysiakini when contacted.

 

This means MPs can move a confidence motion to support Langkawi MP Dr Mahathir Mohamad as prime minister, or anyone else, when the Dewan Rakyat meets on March 10.


Earlier, chief secretary to the government Mohd Zuki Ali announced that Yang di-Pertuan Agong Sultan Abdullah Sultan Ahmad Shah has accepted Mahathir’s resignation as prime minister, but has appointed him as interim prime minister.

This is until a new prime minister and cabinet can be appointed.

A source had told Malaysiakini that the King could take up to 10 days to decide which coalition has majority support in the Dewan Rakyat to form the new government.

Meanwhile in a separate statement, Zuki (above) said the Yang di-Pertuan Agong has assented to the prime minister’s advice to cancel the appointments of all cabinet members following his resignation.

This is in line with Article 43(5) of the Federal Constitution, he said.


“As such, the duties of administration members (encompassing the deputy prime minister, ministers, deputy ministers, and political secretaries) cease on the same date,” he said. - Malaysiakini, 24/2/2020

 

Election reform panel looking into caretaker govt role, conduct

Wednesday, 29 Aug 2018 02:19 PM MYT

By Yiswaree Palansamy

Electoral Reform Committee chairman Tan Sri Abdul Rashid Abdul Rahman speaks to reporters at Putrajaya August 29, 2018. ― Picture by Abdul Razak Ghazali

PUTRAJAYA, Aug 29 — The Election Reforms Committee (ERC) will discuss establishing a proper framework for a caretaker government to run the country for when Parliament is dissolved.

Its chairman Tan Sri Ab Rashid Ab Rahman said there is a crucial need for such a framework as there is currently no law on the matter. He added that even the Election Commission (EC) does not know the role of a caretaker government and how it should function.

“Now, there are no laws or rules. We do it by convention. How should the caretaker government behave? As it is, the EC too does not know how they should behave,” he told a news conference here today.

“After the dissolution, they still continue to run the country. How is that? So they run over other parties too,” he added, the last in jest.

Ab Rashid said a caretaker government does not have the mandate of an elected government and therefore must perform only “ordinary administration”.

He added that the report of the findings and recommendations of the ERC would be made available for public access in stages, to enable feedback and amendments.

The ERC has listed 15 agendas, which it aims to fulfil within the next two years.

Among them are matters relating to elections conduct, campaign funding and expenditures, registration of voters and preparation of electoral rolls as well as a review of the current first-past-the-post election system “to another system considered more appropriate”, and electoral observers.

The ERC was officially announced on August 16, and is placed under the Prime Minister’s Office, tasked with studying ways and making recommendations on reviewing the country’s electoral system and regulations. - Malay Mail, 29/8/2018