Malaysia held its 15th General Elections after the 14th Parliament was dissolved. The Elections Commission convened and set 5 November 2022 as the Nomination Day and Polling Day on 19 November 2022. During this process, Malaysia’s voters went to the polls to elect their 222 Parliamentary representatives. In the process, a candidate passed away while flooding forced the Elections Commission to defer the voting in another. By Sunday, results for 220 constituencies were returned and certified. On Monday, the results of the 221st seat were returned and certified.
After the results were calculated, the Elections Commission reported that no party attained the 112 seats needed to form a simple majority.
As a result, the appointment of a Prime Minister has been delayed. As of 23 November, His Majesty the Yang DiPertuan Agong has met with the party leaders of Pakatan Harapan (YB Datuk Seri Anwar Ibrahim), Perikatan Nasional (YB Tan Sri Mahiaddin Yassin), and Barisan Nasional (YB Datuk Seri Ahmad Zahid Hamidi) as well as representatives of the Gabungan Parti Sarawak (GPS). His Majesty is to confer with the Conference of Rulers on 24 November.
Netizens, including esteemed lawyer Wee Choo Keong, have urged for a special session of Parliament to select a Prime Minister.
This raises a good legal question: whether a special session of Parliament can be convened for the Dewan Rakyat to vote.
I. Power to Convene Parliament
Art. 55(1), Federal Constitution, provides that the Yang di-Pertuan Agong shall summon Parliament from time to time. This means that the Yang di-Pertuan Agong has the sole authority to summon Parliament.
Art. 44(4), Federal Constitution, continues that Parliament shall be summoned to meet on a date no later than one hundred and twenty (120) days from the date of dissolution.
Can the Yang di-Pertuan Agong, on his own accord, summon Parliament?
We need to turn to Art. 40(1), Federal Constitution, which goes:
In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.Art. 40(1), Federal Constitution
In addition to that, we need to consider Art. 40(1A):
In the exercise of his functions under this Constitution or federal law, 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.Art. 40(1A), Federal Constitution
When you consider these two articles of the Federal Constitution, the Yang di-Pertuan Agong acts according to the advice of the Cabinet or a Minister acting under the general authority of the Cabinet (often, the Prime Minister).
In fact, the Courts have discussed on how the Yang di-Pertuan Agong is to exercise his authority extensively. Among these cases include Teh Cheng Poh v Public Prosecutor  1 MLJ 50. Lord Diplock, delivering the judgment of the Privy Council (at that time, Malaysia’s highest appellate court), held that powers are nominally conferred upon the Yang Di-Pertuan Agong by virtue of his office as the Supreme Head of the Federation.
Furthermore, “…he does not exercise any of his functions under the Constitution on his own initiative but is required by Article 40(1) to act in accordance with the advice of the Cabinet. So when one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affair exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular Minister to whom the Cabinet have delegated their authority to give advice upon the matter in question.”
In another case, In the Matter of an Oral Application by Dato’ Seri Anwar bin Ibrahim to Disqualify a Judge of the Court of Appeal  2 MLJ 481, Lamin PCA delivered the Court of Appeal’s judgment. On the question of whether the Yang di-Pertuan Agong is bound by the advice or opinion of the Conference of Rulers, the Constitution is clear. He acts, by virtue of Art. 40(1A), Federal Constitution, on the advice of the Prime Minister.
While the Yang di-Pertuan Agong has the authority to summon Parliament, he cannot proactively summon it. He must act on the advice of a Prime Minister.
II. Does Malaysia have a prime minister after Parliament is dissolved?
The Prime Minister is appointed by the Yang di-Pertuan Agong under Art. 43(2)(a), Federal Constitution. According to this provision:
“…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;…”Art. 43(2)(a), Federal Constitution
Art. 43(2) continues with:
…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.Art. 43(2), Federal Constitution.
The Federal Court had to consider the question of whether a caretaker government existed after Parliament is dissolved. In Abdul Ghani bin Ali @ Ahmad & Ors v Public Prosecutor  3 MLJ 561, the Federal Court referred to the case of Samsher Sing v State of Punjab AIR 1974 SC 2192 where Mukharji J said:
It is, therefore, material to bear in mind the conventions that guide the exercise of discretion in the British Parliamentary System.
… In this context, therefore, it may not be inappropriate to refer to certain observations from the Constitutional and Administrative Law by SA de Smith (3rd Ed), where the learned author has referred to the conventions of the Constitution and … At p 153, there the author has recognized that when the Parliament is dissolved the Government continues in office: it vacates office only if the election results show that it has lost its majority in the House, in which case it must resign. Similarly, reference may be made to O Hood Phillips’ Constitutional and Administrative Law (6th Ed), where at p 104, the learned author has described the nature and purpose of constitutional conventions and at pp 144 and 145 has discussed the conventions regarding the prerogative of dissolution. The petitioner strongly relied on convention (e) at p 145 where it is stated by the learned author that if the Government is defeated in the House of Commons on a motion of confidence or a motion of no confidence, the Prime Minister must either ask for a dissolution or tender resignation of himself and his ministerial colleagues. Where there is a dissolution which is the usual course, Ministers retain office during the ensuing general election. (Emphasis added.)
Ahmad Fairuz CJ further referred to Vol 2 of Halsbury’s Laws of Malaysia:
Federal Constitution art 43(1). The use of the word ‘shall’ in art 43(1) indicates that this is a mandatory provision and that there has to be a Cabinet at all times and that the Yang di-Pertuan Agong cannot dispense with the Cabinet at any point of time, even when Parliament is dissolved. See UNR Rao v Indira Gandhi AIR 1971 SC 1002 (it was argued in this case that there need be no council of Ministers when the House has been dissolved and no House exists, because in such a case, the responsibility of the Ministry to the House cannot be enforced. Rejecting the argument, the Supreme Court said that this proposition would change the entire concept of the Executive. The President cannot exercise the executive power without the aid and advice of the Council of Ministers). See also MP Jain, Indian Constitutional Law(1987).
The learned Chief Justice concluded that a caretaker government can exist under the Federal Constitution.
Allow me to sidetrack: if you are not familiar, the Malaysian courts – just like other Commonwealth countries practicing common law system – adhere to the doctrine of stare decisis or judicial precedent. Check out this entry where I discussed this doctrine.
Returning back to the question: is there a Prime Minister of Malaysia? The answer is yes. Datuk Seri Ismail Sabri bin Yaakob is still the Prime Minister of Malaysia.
However, return to the second limb of Art. 43(2):
…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. (Emphasis added)
In other words, Datuk Seri Ismail Sabri continues to hold his office until a new Prime Minister is appointed or the next session of Parliament commences. He retains his position in the latter’s instance after he is re-appointed as Prime Minister under the 15th Parliament.
III. What happens in the first session of Parliament?
When we refer to Parliament, we are looking at one of its three components: the Dewan Rakyat. Before anything, the Dewan Rakyat must first elect a Yang di-Pertua Dewan Rakyat (i.e. the Speaker of the Dewan Rakyat). Currently, the incumbent is YB Tan Sri Azhar Harun who was elected by the 14th Parliament on 13 July 2020.
The role of the Speaker is very important. Per Art. 57(1), Federal Constitution, “…the House shall … transact no business while the office of Speaker is vacant other than the election of a Speaker“.
You might be wondering: so? We have a Speaker – Tan Sri Azhar Harun. What’s the problem?
Turn to Art. 57(2), Federal Constitution:
(2) The Speaker may at any time resign his office by writing under his hand addressed to the Clerk of the House of Representatives, and shall vacate his office
(a) when the House first meets after a general election;
The moment Dewan Rakyat convenes, its first order of business is to elect a Speaker. The moment it meets for the first time after a General Election (i.e., after 19 November 2022), the incumbent Speaker loses his position.
If the Dewan Rakyat disregards this constitutional order of business, the effect is the motion or vote to nominate a Prime Minister may be challenged in a court of law. Because it contravenes Art. 57(1), it may be found ultra vires and void.
Appointing the Prime Minister by way of a Dewan Rakyat is already messy. Can you imagine the debate that will ensue on the election of the Speaker? Let us not forget that Tan Sri Azhar Harun’s appointment two years ago is not without controversy.
After the appointment of the Speaker, the Dewan Rakyat needs to regulate its procedure by passing the Standing Order under Art. 62(1), Federal Constitution.
In other words, once the Dewan Rakyat first meets after the election, we cease to have a Prime Minister and a Yang di-Pertua Dewan Rakyat. Unless they are re-appointed by the Yang di-Pertuan Agong and by the Dewan Rakyat respectively.
Unlike Cabinet ministers, deputy ministers, and Parliamentary Secretaries, the Prime Minister does not hold office at the pleasure of the Yang di-Pertuan Agong. Unless he voluntarily resigns, the prime minister can only be removed with a vote of no confidence – and the Yang di-Pertuan Agong refusing to consent to the dissolution of Parliament (yes, another election).
Likewise, the Speaker must willingly resign or be removed by the Dewan Rakyat through a resolution.
IV. Other Obstacles for a Special Session of Parliament
The most glaring obstacle is the lack of constitutional provision that allows the summoning of a special session of Parliament. “Special session” is merely a colloquial term. Once Dewan Rakyat meets, the existing provisions are in force and applicable.
So far, we have examined the question from a legal perspective. We have not explored the political implications as well as economic implications of these routes.
The Federal Constitution is clear on what needs to happen: the Yang di-Pertuan Agong has the discretion to appoint any member of the Dewan Rakyat “who in his judgment is likely to command the confidence of the majority of the members of that House”.
What His Majesty is trying to do is ensure that the Prime Minister – and the Government elected – would last as long as possible in the coming five years. He is looking for a sustainable solution to a situation that Malaysia has never seen before. At the same time, His Majesty is doing his best to ensure that while he discharges his constitutional duties, he does so above partisan politics while respecting the parliamentary democratic spirit that we have in Malaysia.