NOVEMBER 23 — "An interim PM is some fictional beast the media or politicians have concocted but has no basis in law. There is no provision for a temporary prime minister,” lawyer Fahri Azzat told Malay Mail.

Rightly said.

The argument to ‘drop’ the term has been made when Tun Dr Mahathir Mohamad was appointed as a co-called interim prime minister on February 24, 2020.

Now, the Federal Constitution does not specifically mention a caretaker prime minister as well.

"What is called a caretaker prime minister is just a person acting in the capacity of a prime minister, he is not, technically speaking, a prime minister,” said senior law lecturer Magesan R. Ayaloo.

However, a caretaker prime minister stands on a better legal footing than an interim prime minister. As explained by Magesan, allowing the prime minister to take up the mantle of caretaker prime minister once Parliament is dissolved is a convention.

The convention evolved and developed because it was accepted that, during the period preceding an election for the House of Representatives — the Dewan Rakyat in Malaysia — the incumbent government assumed a caretaker role.

The role begins at the time the House of Representatives is dissolved and continues until the election result is clear or, if there is a change of government, until the new government is appointed (the caretaker period).

During the caretaker period, the business of government continues and ordinary matters of administration still need to be addressed. However, the caretaker government is bound by what are known also as caretaker conventions.

These again evolved and developed to ensure that caretaker governments do not bind an incoming government and limit its freedom of action. In summary, the conventions are that a caretaker government should not:

• make major policy decisions that are likely to commit an incoming government;
• make significant appointments; and
• enter major contracts or undertakings.

As rightly said by Magesan, these are conventions — they are not written into the Constitution. However, Federal Court judge Ahmad Fairuz (as he then was) in Abdul Ghani Bin Ali & Ahmad & Ors V Public Prosecutor [2001] 3 MLJ 561 at page 600 said that "a caretaker government can exist under our Constitution and, in fact, did exist on 15 May 1969.”

The Federal Court in that case held that the promulgation of the Proclamation of Emergency on 15 May 1969 was made by Yang di-Pertuan Agong (the King) after acting on the advice of the Cabinet. Since a caretaker government could exist under the Constitution and did, in fact, exist on 15 May 1969, the 15 May 1969 Proclamation of Emergency was constitutional and valid.

So, call the caretaker prime minister "a person acting in the capacity of a prime minister”, if you like, but he is a person mandated — even if by implication — by Article 43(1).

Be that as it may, the country needs a prime minister and a Cabinet. Period.

A Cabinet is needed to advise the King to convene the 15th Parliament. It is to authorise government expenditure in 2023.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.