Can the Yang Di Pertuan Agong withhold consent to dissolution of Parliament?

Kim Quek
28 January 2008

At this moment when the Prime Minister is expected to announce the imminent dissolution of Parliament to pave the way for the next general election, it is perhaps relevant and urgent that the critical issue of the power to dissolve Parliament be reviewed.

It seems to be a popular belief that the Prime Minister has absolute power to decide when Parliament is to be dissolved.  Is there a constitutional basis for this belief?
The answer is no; for there is a clear-cut provision in the Constitution whereby the Yang di-Pertuan Agong is given the power to withhold consent to a request for dissolution of Parliament.  The fact that the Agong has always acceded to the Prime Minister’s request to dissolve Parliament in the past does not detract from this constitutional principle.
Granted that in the normal course of events the Agong is generally bound to act in accordance with the advice of the Prime Minister or the Cabinet.  However, there are certain functions where the Agong is conferred the exclusive power to act on his own without the advice of the Prime Minister, and the power to withhold consent to dissolution of Parliament is one of them.
Agong’s discretionary powers
These discretionary powers of the Agong are clearly and unambiguously prescribed in Article 40 (2) of the Constitution.  In order to dispel any doubt as to whether these discretionary powers are really intended to be exercised by the Agong without any advice from the Prime Minister or Cabinet, we will take a look at the entire Article 40 in full, which is titled “Yang di-Pertuan Agong to act on advice”.
Article 40 consists of 4 clauses, which are as follows:
Clause (1) is a general statement which says that when the Agong exercises his functions, he “shall act in accordance with the advice of the Cabinet”, except as otherwise provided by the Constitution.
Clause (1A) elaborates on Clause (1) to say that “where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice”.
Clause (2) prescribes the discretional powers of the Agong, and I quote this clause in full:
“The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say –
(a)  the appointment of a Prime Minister;
b)  the withholding of consent to a request for the dissolution of Parliament;
(c)  the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting, and any other case mentioned in this Constitution.”
While the discretional power on item (a) has to be exercised in conjunction with the provision of Article 43 Clause (2) (a) where the Agong is required to appoint “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”, the Agong’s power over item (b) and (c) is unencumbered by other rovisions of the Constitution.  Note also that the Agong’s discretional power is not confined to items (a), (b) and (c) alone, but covers “any other case mentioned in this Constitution.”
Clause (3) merely says that the Agong may be required to act in consultation with bodies other than the Cabinet, if so required by federal law.
Viewing the entire Article 40 in its full perspective, there is no doubt that the powers conferred in Clause (2) are prerogative powers exclusive to the Agong.  They are intended to be exercised with the Agong’s own judgment without hindrance from others. And among these is the power to withhold consent to the Prime Minister’s request to dissolve Parliament.
Constitutional convention
Despite the clarity of our Constitution on this issue, there are those who think that since we have inherited the Westminster system of government, we must follow the constitutional conventions of Britain and that means the Agong, like the Queen, must not exercise his own judgment, but to accept the Prime Minister’s decision to dissolve Parliament as a fait accompli.
The question I want to put across is: why must we follow the British constitutional convention?
We must understand that Britain is governed through what is famously known as an ‘unwritten constitution’, which is in effect a combination of written documents and unwritten rules.  The written documents are statues and court judgments accumulated over the ages, while the unwritten rules are known as ‘constitutional conventions’ which are rules of constitutional behaviour recognized and accepted by the political players, though these are not legally binding.  Under such a system, Parliament reigns supreme.
In contrast, Malaysia has a wholly written constitution, which being modeled after the British system, has already included many of the British constitutional conventions that were intended to be incorporated into our system of government.  As such, our Constitution is supreme, as stated in Article 4, which clearly states that any law which is inconsistent with the Constitution shall be void.  And the courts must interpret the Constitution from the words alone without importing extraneous rules and practices.  There is therefore no justification to use any so-called convention to usurp the personal power expressly granted to the Agong under Clause (2) of Article 40.
In fact, as far as adherence to the British constitutional convention is concerned, hardly any commonwealth country is following strictly to these British rules, despite almost all of them having inherited the British system at the time of independence.  This is understandable, as no independent state fully exercising its sovereignty can remain contended at faithfully maintaining the constitutional traditions and practices of its former colonial ruler.
A most prominent case is the Australian crisis of 1975, when a political stalemate in the midst of a series of breaches of conventions by both the ruling and opposition parties in parliament led to the sacking of then Prime Minister Gough Whitlam by Governor General John Kerr, which is itself a major breach of convention.  Can you imagine the Queen sacking the Prime Minister of Britain?  But this is exactly the kind of constitutional drama that took place in Australia, which ironically remains as one of the ex-colonies most closely linked to Britain, symbolized by maintaining a head of state whose official status is a representative of the Queen.  These events illustrate the impracticability of expecting the British constitutional conventions to be faithfully adhered to outside the United Kingdom.
And so, Malaysia being a sovereign state with a constitution that is fully written, I don’t see why the Agong should feel any unease when any exercise of his discretional power sanctioned by the Constitution should be found in variance with the British convention – such as withholding consent to dissolve Parliament.

Political crisis

The real issue Malaysians must focus on is: under what circumstances should the Agong withhold his consent.  Though there is no clear statement in our constitution on this issue, a hint can be found in Article 43 (4), which I quote in full:
“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.”
This clause implies that the Agong can turn down the Prime Minister’s request to dissolve Parliament in the event that the latter looses the support of the majority of members of Parliament, in which event, the PM together with the Cabinet will have to resign.  Following such resignation, the Agong will have to appoint a new PM who will in turn select a new Cabinet. In short, a new government will be appointed.
This also implies that, in the event the PM looses majority support in Parliament, the Agong has the prerogative to decide on how the political crisis is to be resolved – either by appointing a new Prime Minister who can command majority support in Parliament, or by holding a new election, for which Parliament has first to dissolve.
We can see from this scenario that the Agong possesses vast powers to extricate the nation from a crisis by virtue of the provisions in Article 40 (2).  The question in our minds is: apart from the PM loosing majority support in Parliament, what other serious political turmoil or grave abuses that could give rise to the Agong acting under Article 40 (2) (b) – such as the degrading of the electoral system to the point that it has destroyed the democratic foundation of our nation?
I will deal with these issues in my next article.