by Muhammad Aiman Firdaus bin Kamal Nor Azman
Once the closing pendulum of a general election has been officially announced by the Election Commission, all eyes in this multi-racial stratification country are going to be carefully waiting and observing who shall be appointed as the Prime Minister of Malaysia by the Yang di-Pertuan Agong. Since our Independence Day on 31st of August 1957, Malaysia has been administered prosperously and peacefully by a plethora of heterogeneous-ethnic-based coalitions establishing the governments of the day, commencing with our magnanimous Bapa Kemerdekaan, Tunku Abdul Rahman Putra Al-Haj, and going through our current Kerajaan Perpaduan under the grandiloquent Tenth Prime Minister, YAB Dato’ Seri Anwar bin Ibrahim. If we scrutinise the history presented before us extensively, the astonishing point of commonalities between them is that their bloodlines are all coming from Malays, the majority group of citizens residing in the nation. Our paramount hypothetical question in this discussion is, from the standpoint of constitutional law, whether the appointment of a non-Malays Prime Minister is legitimate in Malaysia or otherwise.
Acting as the Head of Executive in a country adhering to the separation of power principle, by virtue of Article 40(1) of the Federal Constitution, 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.” The exception clause to the provision, however, pronounces that the Yang di-Pertuan Agong may act otherwise concerning matters laid down categorically in the Constitution, and among the discretionary powers conferred upon him is the appointment of a Prime Minister.
Article 40 of the Constitution mentions that,
(2) 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; (emphasis added)
Additionally, Article 43 of the Constitution provides that,
(2) The Cabinet shall be appointed as follows, that is to say:
(a) 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 judgement is likely to command the confidence of the majority of the members of that House; (emphasis added)
The discretionary power vested in the Yang di-Pertuan Agong pertaining to the appointment of a Prime Minister has also been confirmed judicially in a myriad of court cases. To enumerate some infamous cases that have caught intense discussion are N Madhavan Nair v Government of Malaysia [1975] 2 MLJ 286; PP v Mohd Amin bin Mohd Razali [2000] 4 MLJ 679; Dato’ Seri Anwar bin Ibrahim v Perdana Menteri Malaysia & Anor [2010] 3 MLJ 174; and Datuk Seri Salahuddin bin Ayub & Ors v Perdana Menteri, Tan Sri Dato’ Hj Mahiaddin bin Md Yasin & Anor [2021] 12 MLJ 1.
As in Madhavan Nair’s case, at page 289, in delivering his profound judgement at High Court of Kuala Lumpur, Chang Min Tat J enunciated specifically that, “However Article 40 limits the executive authority of the Yang Dipertuan Agung to acting on the advice of the Cabinet or of a minister acting under the general authority of the Cabinet. It is only in certain matters, spelt out to be the appointment of a Prime Minister, the dissolution of Parliament and the requisition of a meeting of the Council of Rulers that he has a discretion.” (emphasis added)
A literal approach to the textual provisions has shone an incandescent light on the essential requirements that should be fulfilled by an individual in order to be appointed as the Prime Minister of Malaysia. As envisaged in Article 40(2) reads with Article 43(2)(a) of the Federal Constitution, an appointed Prime Minister must be a member of the House of Representatives (Dewan Rakyat), and he, in the discretion of the Yang di-Pertuan Agong, shall command the confidence of the majority of the members of that House. By implication, the pinnacle position in Malaysian government is not circumvented by any particular race or religion; nonetheless, the Federal Constitution has augmented its possibility for any members of the House of Representatives who have a sanguine dream since his raison d’être in political lebensraum.
Unfortunately, the most heartbreaking and crestfallen predicament in our status quo is an array of both politicians and active members of parties, irrespective of ideologies and principles, who have exacerbated the political rodeo by demonising their opponents with a cannonade of bellicose rodomontade and pugnacious castigation, to the extent of portraying others as adhering steadfastly to racism, chauvinism, and racial discrimination. Among these snollygosters, most of them have been defenestrating their own die-hard supporters with a vile sense of schadenfreude since forever, just for the sake of exaggerating and misinterpreting the provisions enumerated in the Federal Constitution, especially in regards to the appointment of the Prime Minister.
In demystifying our crux of discussion, Professor Emeritus Datuk Dr Shad Saleem Faruqi, holding the Tunku Abdul Rahman Chair as Professor of Constitutional Law at the University of Malaya, is of the opinion that religion, race, region, and gender are not part and parcel to be considered in the appointment of Prime Minister. He also makes a juxtaposition with the status of Menteri Besar in the State Constitutions, where it mentions unambiguously that the position can only be held by a Malay or a Muslim. However, in the context of the Prime Minister, his justification for why Malaysia has been under the administration of the Malay Prime Minister is due to the constitutional convention, and Article 43 may indirectly order those who belong to this race as most suitable to be accountable to the highest institution in Cabinet. In his own words, “politics will probably dictate that the PM-designate must be a Malay/mixed Malay. However, this is a mere tradition and not a law.” (emphasis added)
On the other side of the coin, although the proposition that a prime minister must be appointed among the Malays is not found in any statutory provisions, nevertheless, according to Associate Professor Dr Azeem Fazwan Ahmad Farouk, Director of the Centre for Policy Research and International Studies at Universiti Sains Malaysia, the idea of having a non-Malays Prime Minister is unprecedented, and there is no an iota of chances for that to happen sooner or later. In our quinquennial general election, the most enormous weightage in the 222 constituencies of Parliament in Malaysia solely comes from rural seats, which are usually hegemonized by the Malays. The ethnic and religious sentiments always being corroborated could not be put aside at all because, even in a mature democratic country, every person tends to choose and have a leader of his or her race and belief.
The scholar also illustrated that the appointments of Barack Obama, the 44th President of the United States of America, and Rishi Sunak, the Prime Minister of the United Kingdom, both of whom are non-Whites, were such eccentric occasions and will never happen again in the future. As a matter of fact, in his insightful book entitled ‘Perlembagaan Malaysia: Asas-asas dan Masalah’ at pages 217–218, Professor Dr Abdul Aziz Bari, on the other hand, elucidates that in regards to the delimitation of constituencies, the ratio would be two seats in rural areas commensurate with one seat in urban areas due to “greater difficulty of reaching electors in the country districts and the other disadvantages facing rural constituencies.” Having more dominance of representation in the August House, i.e. the House of Representatives, it appears impossible and unlikely for a non-Malay Member of Parliament to be mandated to hold the role of Prime Minister of Malaysia.
In a nutshell, from the point of view of constitutional law, the appointment of a non-Malaysia Prime Minister in Malaysia is valid and legitimate because the Federal Constitution does not prohibit it explicitly, and the Court shall not declare them as ultra vires or unconstitutional. Nonetheless, everyone must contemplate our current political sentiments and voter’s suffrage since the appointment may eventually jeopardise the sustainability of democracy in the nation as well as lead to a manoeuvring series of massacres and excruciating mayhem.
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