PM and Cabinet

Appointment of PM

- The PM is appointed by the YDPA exercising his discretion in Article 40(2) of the FC.

- The YDPA is expected to appoint the PM from the Dewan Rakyat who is in his judgement is likely to command the confidence of the majority of that House, Article 43(2) of the FC.

- The YDPA might have discretionary powers to appoint a PM during a hung Parliament. However, it has never happened in Malaysia as the ruling party has always secured a majority of seats in the Parliament. Thus, the legal position behind this is not fully certain.

-The YDPA’s power to appoint the PM is a mere formality, as he doesn’t have the power to choose.

- YDPA can appoint a temporary PM in his discretion if all Ministers happen to die together.

Dismissal of PM

- The FC is silent about the dismissal of the PM. However the Reid Commission did mention dismissal but only in the context of a PM that has lost the confidence of the House but nevertheless refuses to resign.

- The Commission gave the YDPA power to sack such a PM.

- Article 43(4) of the FC put the duty on a PM that has lost the confidence of the House to resign. The argument that the power to appoint includes the power to dismissal doesn’t apply, firstly, because the YDPA’s power to appoint is a mere formality, and secondly, it would run counter to Article 43(5) of the FC. Since, Malaysia is a democratic country, and the YDPA was not elected by the people, he should not be given the power to sack a PM.

- To support the argument on whether the YDPA can sack a PM under normal circumstances, reference to several decided cases have to be made. If the Constitution is silent on something, then we have to look at the prerogative power.

- In 1975, PM of Australia, Gough Whitlam lost in the vote of no-confidence, but he refused to resign. Then, the Queen of England directed the Governor General of Australia (Sir John Kerr) on her behalf to sack the PM of Australia and appoint the Opposition leader (Malcolm Fraser) as the temporary PM.

- Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli

In this case, Stephen Kalong Ningkan was the Chief Minister (CM) of Sarawak. There were allegations that some MPs from his party went to the other party and Stephen no longer controls the majority of seats. Some said that Stephen no longer control the confidence of majority. However, he cannot be removed because there is no vote of no-confidence as he refused to call the Assembly to sit. The Governor couldn’t take it and sacked the CM, and the CM sued the governor in court. It was held that a Governor cannot sack a CM (Head of State cannot remove Head of Government under normal circumstances) without a vote of no-confidence.

- Adegbenro v Akintola (opposing view)

It was held that the withdrawal of support could be indicated outside the House and thus the head of state was justified in dismissing the head of government.

- In an earlier case, the Sultan of Perak (Azlan Shah) managed to remove the Chief Minister even without the vote of no-confidence. The Court of Appeal held that the Sultan can remove the CM. It is against the precedent case and against constitutionalism.

-However, Stephen Kalong Ningkan’s case should prevail because the CM is the people’s choice.

Powers of PM

            Why is the PM given so much power? The Prime Minister holds the Cabinet together and is supposed to ensure that the objectives of the Cabinet are achieved. The PM is required to maintain the responsibility and accountability of all ministers on an individual and collective level. The PM is also required to ensure that the Executive is able to administer the country through the formulation and implementation of effective policies. The PM is also an elected representative of the people, and he or she therefore needs to represent the majority in making decisions

- PM can appoint the entire Cabinet without any need for approval by Parliament or by his party, Article 43(2)(b).

- PM has the power to choose, switch, promote, demote and dismiss his colleagues and place them in order of seniority. He may create a new ministerial office or close one. He may transfer functions from one minister to another and even designate one of them to be the DPM.

- PM may require a minister to resign at any time for any reason he thinks fit. If the minister refuses to comply, the PM may advise the YDPA to dismiss him or her. In Datuk Seri Anwar Ibrahim v Perdana Menteri, the court held that the letter of dismissal need not come from the YDPA. It was sufficient for the Monarch to be informed before the PM dismisses his colleague

- PM can determine when the Cabinet shall meet and what to be discussed. He is entitled to say what issue shall be referred to him outside the Cabinet. Disputes between departments in the Cabinet may be resolved by his informal rulings.

- The PM is not bound by Cabinet advice. Many decisions are made by the PM alone or by him after consulting several of his favourite ministers.

- PM can create committees of the Cabinet, choose their membership, prescribe their terms of reference and give them decision-making power. He may preside over some committees

- PM may create an advisory body of outsiders to counsel him on any particular matter.

- PM chooses the senators who are appointed by the YDPA to the Senate under Art. 45(1) of the FC

- PM may give advice to summon, prorogue or dissolve the Dewan Rakyat. However, the YDPA may reject the advice on the dissolution of Parliament under Article 40(2)(b).

- PM figures prominently in the appointment of all important constitutional posts, including judges of superior courts, AG, Governors, Election Commission, and etc.

-PM enjoys substantial powers of patronage. If he does not give a political office to someone he wishes to reward, he may confer on him chairmanship of a statutory corporation or an advisory or consultative body, a royal commission and etc.

Control on powers (briefly)

- Although the PM enjoys wide discretionary powers, he is still accountable to the people as the people will elect the PM every four to five years.

- PM represents the nation in international visits for diplomatic relations. His conduct in ruling the country and overseas will affect the nation.

- The PM cannot continue to be in office if the Cabinet Ministers withdrew their support. Thus, he has to treat his colleagues with respect.

- The MPs may go against him by giving a vote of no-confidence, leading to the PM’s resignation.

- The PM is also subjected to administrative controls.