By letter of law, Najib must now make way for Dr M as next PM
In these uncertain times, it is important that we look at the federal constitution for guidance on the appointment of the prime minister.
The YDPA is a constitutional monarch and His Majesty’s roles and functions are as set out in the federal constitution.
Article 43 of the federal constitution which provides for the appointment of the prime minister states “the Yang di-Pertuan Agong (YDPA) 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”.
The federal constitution makes no mention of political parties or political coalitions although that is the reality.
Political parties and political coalitions only makes it easier for the YDPA to gauge who has the confidence of the majority of members of the House of Representatives but it is not the only way of determining confidence. Having a political party or political coalition is certainly not a pre-requisite.
Although the phrase “in his judgement” in Article 43 and in Article 40 does provide the YDPA with a discretion in the appointment of a Prime Minister, such discretion must be exercised in accordance with the provisions of the federal constitution.
In this regard the federal constitution is clear that only a member of the House of Representatives having the command of the confidence of the majority of that house can be appointed as prime minister. Since it is evident that Harapan chairperson Dr Mahathir Mohamad commands the confidence of the majority of the House of Representatives then the YDPA is constitutionally obligated to appoint Mahathir as the prime minister.
Whether the Pakatan Harapan coalition was formerly registered is not and should not be a consideration.
What happens next?
Unfortunately the federal constitution is silent on how the above process is to take place. This means that we have to resort to convention. It is now irrefutable that BN chairperson Najib Razak no longer commands the confidence of the majority of the House of Representatives.
The convention is if the incumbent prime minister, who is still caretaker prime minister Najib Razak, should now resign to make way for the new prime minister to be appointed.
The latest example from United Kingdom, which our system of government is based on, is in 2013 when Gordon Brown, then leader of the Labour Party, having lost the general elections, resigned as prime minister to make way for David Cameron, the leader of the Conservative-Liberal Democrats coalition, to be appointed as prime minister.