The Agong’s Constitutional Power to Remove PM

A pamphlet containing ways to remove the PM was distributed into the pigeon-hole of MPs in Parliament last Thursday. Until a copy could be obtained, the Malaysia Insider’s report is the most detailed information on the pamphlet.

The report quoted a comment that no extra-parliamentary dismissal is possible:

Unless the Dewan Rakyat dismisses the PM, the YDPA (king) has no power to remove the PM: Article 43(5). The case of Stephen Kalong Ningkan vs Tun Abang Haji Openg (1966) confirms that unless there is a vote of no confidence, a valid appointment cannot be revoked by the governor.

A lawyer had recently highlighted this blogger the Constitutional power of Agong to remove PM. The relevant article mentioned is 43(4) and not as per article 43(5) in that statement.

Article 43(5)

Article 43(5) reads below:

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shall hold office during the pleasure of the Yang Di Pertuan Agong, unless the appointment of any Minister shall have been revoked by the Yang Di Pertuan Agong on the advise of the Prime Minister but any Minister may resign.

The article basically says that:

1. This article applies only to Cabinet Minister and not the Prime Minister
2. The Minister shall hold office at the “pleasure” of the Agong. The Oxford Dictionary describe the meaning of pleasure as “gracious wish of the moonarch” or “feeling of satisfaction”.
3. The Minister shall hold office till removed by:

i) Revocation by the Agong on the advise of the PM, or
ii) Resignation by the PM

4. This article is subject to clause 4

Article 43(4)

Lets now look at Article43(4) of the Federal Constitution, below:

If the Prime Minister cease 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.

As far as this legally untrained Blogger’s understanding is concerned, the Clause basically says that:

1. The PM cease to command confidence by the majority by way of:

i) Vote of no confidence, or
ii) With other’s holding majority or not, the PM’s block of House of Representatives does not hold the majority

2. Under such situation, there is two possibilities, either:

i) The Agong use his disgression to dissolve Parliament, or
ii) PM and his Cabinet is forced to resign en-bloc

Reading Into It

Datuk Seri Najib Razak's reaction to the pamphlet was that the PM’s position is governed by the Federal Constitution and he cannot be dismissed in such a cavalier fashion.

Rightly so.

Unless there are procedures and exceptions stated in other Articles of the Federal Constitution, the Clause 43(4) should be the relevant Clause to govern the removal of the Prime Minister.

But Najib’s reaction refers more for the other parts of the pamphlet that talks of use of the Emergency Ordinance and even suggesting modification of the Ordinance without the necessary approval of Parliament.

Dato Shahrir Samad in his comment on Dr Mahathir’s quiting from UMNO spoke of a situation in Article 43(4). He mentioned that if UMNO MPs follow suit, then a fresh General Election maybe expected.

However, should Parliament is able to come to an agreement for the choice of PM, will a new General Election be necessary? If Abdullah request to dissolve Parliament, will the Agong “perkenan”? If not, what happens?

The plot continues ...