AFTER losing the support of the majority of Members of Parliament (MPs), Tan Sri Muhyiddin Yassin tendered his letter of resignation as the Prime Minister (PM) on Aug 16 to the Yang Di-Pertuan Agong (YDPA) together with the resignation of his entire cabinet.
In the media statement by the National Palace, the YDPA had appointed Muhyiddin as the caretaker PM pursuant to Article 40(2)(a) and 43(2)(a) of the Federal Constitution pending the appointment of a new PM.
The appointment had been gazetted on Aug 16 to notify that Muhyiddin shall be charged with the responsibility in respect of all departments of the Federal Government and the subjects for which the departments are responsible until the appointment of the other Cabinet ministers.
The position of a ‘caretaker’ or ‘interim’ PM is not provided for under the Federal Constitution, but rather it is a convention that came from the Westminster parliamentary system.
The appointment of a PM is pursuant to Article 43 which does not differentiate between a ‘permanent’ or a ‘caretaker’ PM. Since there is no such position under the Federal Constitution, a caretaker PM technically holds the same power as that of a permanent PM.
Although not expressly provided for, there are conventions that recognise certain limits to the powers that may be exercised by a caretaker PM.
Muhyiddin was appointed as a caretaker PM by the YDPA on the understanding that he had lost the majority support of MPs and that he will only hold the position of the PM until a new PM is appointed among the other MPs.
Premised on this understanding, it would therefore be improper if Muhyiddin could exercise the full powers of a permanent PM during his appointment as a caretaker PM. A caretaker PM is expected to maintain the status quo by continuing to implement policies already decided by the previous government.
He shall not introduce new legislation or decide on new policies during his term as the caretaker PM. In addition, like a permanent PM, the caretaker PM will remain answerable to the Parliament.
Can the caretaker PM appoints a caretaker cabinet to assist him with the day-to-day affairs of the government?
Technically, there is nothing in the Federal Constitution that would prevent him from doing so. The appointment of a caretaker cabinet would be pursuant to the same legal basis as the appointment of a permanent cabinet.
However, Muhyiddin may have to exercise restraint and appoint a much smaller cabinet by prioritising essential ministerial portfolios due to his temporary and limited powers.
Who has the majority?
Although there is no time limit for Muhyiddin to remain in the position of caretaker PM, it is understood that a new PM ought to be appointed as soon as possible.
Since the YDPA had expressed that an election should not be held at the time being due to the COVID-19 pandemic, the appointment of a new PM will have to be done by a show of support of the MPs.
The PM must command support from the majority of the MPs as per the Federal Constitution. However, the Constitution is silent on how the majority may be proven.
It was earlier reported that MPs had been asked to submit a statutory declaration to the Dewan Rakyat Speaker with the name of the MP they nominate as the PM which will then be submitted to the YDPA.
A political leader had also been quoted that the YDPA had decreed for the new PM’s majority to be proven in Parliament. These two processes are clearly different from the process in February 2020 where the YDPA called all political party leaders to the palace to ascertain the MP with majority support which turned out to be Muhyiddin at that time.
As of now, it is still unclear which MP conducts the confidence of the majority of the MPs. The appointment of the new PM must be done promptly to ensure that the country continues to be governed effectively, especially since the COVID-19 situation in Malaysia is still in dire straits.
The next few days will be interesting to watch as the events relating to the Malaysian political scene continue to unfold. – Aug 18, 2021
Leonard Yeoh is a partner and Nurul Qarirah Md Kahar a legal associate with the legal firm, Tay & Partners.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
