So far everyone makes the following asumptions :

1. If Pak Lah decides not to contest UMNO president’s post, Najib will automatically succeed as UMNO president per transition plan (brought forward) but that’s only provided one like Ku Li one contests that post in March 09 or if Ku Li so contests, he loses.

2. By convention whoever is president of UMNO becomes Prime Minister.

3. Tun Dr Mahathir resigned as PM and anointed Pak Lah as sucessor, so therefore Pak Lah could resign and likewise anoint Najib, and

4. Life goes on as usual.

However I wish to point out the following differences:-

(a) The religuishment of UMNO president’s post is a party issue governed by UMNO party’s rules. It is not exactly the same as resignation as Prime Mnister’s post, a government post governed by Constitution.

(b) If Pak Lah resigns as Prime Minister, won’t he have to also resign the whole cabinet as well for the Yang di Pertuan Agong to appoint another Prime Minister under Article 43(2)(a) [of the Federal Constitution who in turn apoints his cabinet?

(c) If procedure in (b) were not followed in the case of Tun Dr Mahathir’s resignation and anointment of Pak Lah as PM then it must have been because (i) no one contests that anointment within UMNO and (ii) the BN with UMNO in the lead was assumed to have the two third majority in Parliament.

1. As what KennyGan said, if the retiring Prime Minister (“PM”) requests the Yang di-Pertuan Agong (“King”) to dissolve parliament to pave the way for elections, the King need not have to follow PM’s request to dissolve parliament especially in a case where after the PM has resigned, the King could, in his judgment, determine upon another candidate (whether in the BN or the Opposition) who would, in the King’s judgment, likely to command the confidence of the majority of the members of the House of Representatives (Dewan Rakyat) within meaning of Article 43(2)(a) of the Federal Constitution.

That this is the position can be gleaned from the wordings of article 43(4) : “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”, the key operative words being “unless at his [meaning the PM’s] request the Yang di-Pertuan Agong dissolves Parliament”.

2. The Constitution is admittedly silent on the all important question of whether if a resigning PM does NOT request for dissolution of Parliament, whether the King could, on his own initiative, within his constitutional powers, dissolve Parliament to pave way of elections.

3. The question in 2 has no precedent. Some experts in the Constitution may incline to the view that the King may not. Their reason is that whatever the King could do must be expressly empowered and provided for in our written constitution.

4. I take a different view. I am of the opinion that the King has the implied power to dissolve parliament even where the retiring PM does not specifically request for it.

5. The reason for my view that the King has the implied power is based on the reasoning that the if the King has not this implied power, then the King would not then be able to carry out his constitutional function of appointing the next Prime Minister whom in his view likely to command the confidence of the majority of the members of the House of Representatives (Dewan Rakyat) within meaning of Article 43(2)(a) – in a confusing situation as I earlier explained in my post where the ruling party UMNO is torn in factionalism with contenders fighting for PM’s position, none of whom, without the other, could establish that he alone commands majority in Dewan Rakyat, especially when the Opposition is neck to neck and also claiming that, with the help of defections, it has the majority!

6. What I am saying is that article 43(4) should not be construed so restrictively as to impede the King from carrying out his constitutional duty under article 43(2)(a) ie. to determine who commands majority, and if in an uncertain scenario, the dissolution of parliament and fresh election were the only means by way of last resort, to determine this question, then the King ought to have this implied power, which of course answers the question raised in 2 above in the affirmative.

Since Independence the Yang di-Pertuan Agong (“King”) has not had the appropriate ‘opportunity’ to dissolve parliament when a PM retired without requesting for one because in the case of Tunku’s passing baton to Tun Razak, it was marked by the unsual NOC (under Emergency regulations) in the aftermath of May 13 1969; in the cases of Tun Hussein Onn to Tun Dr Mahathir (TDM), and TDM to Pak Lah , in all these cases, UMNO commanded more than two third in parliament and was unified behind the anointed successor(s) with no one within the party or without immediately challenging and competing the top post – situations which are vastly dissimilar and ought to be distinguished from present scenario of challenge within and without the party, if the present premier resigns, therefore casting a doubt as to who, if anyone, really commands the majority of Dewan Rakyat within meaning of Article 43(2)(a) of the Federal Constitution.

On the other side of the scale, a constitutional monarch as the King is a symbol of national unity and is expected to be duty bound to safeguard national interest to put an end to an uncertain political situation of unprecedented political strife.

No one could reasonably speculate or impute any partiality on part of the King towards partisan (BN) interest by being disinclined to resort to dissolution of parliament as His Majesty had, as a matter of record, already evinced independence in last episode of rejecting UMNO’s candidate Idris Jusoh for the Terengganu MB’s post in preference to Mohd Said!

If the situation were such that other than a general election there were actually no other objective and verifiable way by which how the King could determine who commands majority of Dewan Rakyat to be appointed as PM, then it would be clear and logical to interpret that dissolving parliament (even without the outgoing premier’s request) would be an implied reserve power the King has or ought to have under article 43(4) of the Constitution to enable him to discharge his constitutional duty under Article 43(2)(a) of appointing a new PM who would, in the King’s judgment, command such majority in the Dewan Rakyat in the wake of the present premier’s resigning without requesting for a dissolution of parliament.

(It is argued here that a constitutional provision like article 43(4) would be interpreted in such a way as to provide latitude for other parts of the constitution like article 43(2)(a) to be given operation and effect rather than the contrary of no effect and impasse).

Well that is the question isn’t it – “Will he will this power for Malaysians or for himself?”

There is a large body of opinion that questions that he will, even at the eleventh hour, for Malaysians or for legacy in anals of Malaysian History.

The other question is whether he could, even if he wants to.

Poster PhuahKL has it right in earlier thread of 29th September {Over 60% of grassroots in Gerakan, MCA, MIC and over 80% of members of Sabah/Sarawak parties want to quit BN} about his “Sixth Law of Malaysian Politics” – “The time needed to make a major political decision in the BN by PM) is directly proportional to the intensity of the (familial/matrimonial ) pressure to make said major political decision”. 1/2 family members (sons/SIL having business or political ambitions may want him to fight, the rest worried about his health and well being may advise him to quit without fight), so it is their decision, depending on who he finally listens with be decisive, and it is unlikely to factor in intererst of Malaysians.

More complicated the PM may also actually believe that the continuance of BN – with hopes of reforms by his contending UMNO successors – may be a lesser between two evils than Pakatan Rakyat coming into power because of the inherent untrustworthiness, in his view, of Anwar’s character and his susceptibility to give in to PAS’s pressure and demands for theocratic state.