According to sources, the eve of election momentum in favour of the Anwar Ibrahim led Pakistan Harapan coalition has been recognised by the incumbent coalition parties, leaving them scrambling for solutions.
Once again the sub-text is ‘anything but Anwar’ and once again the game-plan that has emerged will be to encourage an abuse of the role of the monarch in the election process.
Both BN and PN, who chose to fight each other in every seat having collaborated in a fractious government for the past two and a half years, realise they look set to lose to PH in terms of the biggest party to emerge from the election.
Worse, most polls now indicate that even added together BN and PN are unlikely to muster as many seats as PH. The two parties are laying out their flags and doling out goodies and cash as hard as they can muster, however the ceramahs that are the most busy belong to PH.
Senior figures from UMNO are therefore falling back on abusive tactics, namely to pressure the palace to offer the opportunity to form the next government not to the leader of the party that wins the most seats (most likely Anwar) but to the largest loser.
The plan is already well underway, say informants, with assurances being passed to the Agong that if he were to appoint the leader of either of the two main losing parties they would be successful in cobbling together a coalition of the losers, who would prefer to suffer working with their rivals than losing office altogether.
This would leave Malaysia once more in the grip of a quarrelling bunch of rivalling and self-serving politicians fighting over the plum positions for as long as they can muster a slender majority in the federal parliament.
Once again dozens of ministers would need to be appointed at huge public expense to keep all sides happy. Once again GLCs would have to be stuffed with over-paid politicians as the bartering takes place.
This has been the story of the past two and a half years of chaotic, rancorous and kleptocratic rule following the overthrow of the last majority elected government and it should not happen again.
A recent paper, released by the former Attorney General, Tommy Thomas, who is identified with many of the reforms of the PH government, spells out the clear duty of the Agong, according to precedent and constitutional law, in the event of a failure by any one party to gain the simple majority.
The guiding principle is that the first opportunity to form a government must be given to the leader of the block that has won the largest number of seats, in that they represent the largest proportion of the popular vote in the country and command the strongest support in Parliament. There should be no ifs nor buts.
“The critical point to keep in mind is that the new Prime Minister must represent popular will. He must enjoy the mandate of the voters who just expressed their choice at the ballot box”, says Thomas.
If PH manage to sweep the board with a stunning 112 or more seats, thereby gaining an overall majority there is no need to consider further. However, the same principle applies if all parties fall short of an overall majority:
A strong convention has developed in many parliamentary democracies that when no party or coalition is able to reach the magic 50% plus 1 seat to form the majority in the elected House, the Constitutional Monarch (like the UK) or Head of State (like the President in India) will appoint the leader of the party or coalition that has the highest seats, simply because that person enjoys the mandate from the voters in the just concluded general elections to be given the first opportunity to form a Cabinet, and then when Parliament is in session (typically a month or two after general elections) to secure a motion of confidence in the elected House. It is merely another application of the “first past the post” principle which underpins our electoral system. [APPOINTING THE PRIME MINISTER AFTER GE15 – Tommy Thomas]
However, the plan being hatched by UMNO is to attempt to massage that principle by encouraging the Agong to offer the powers of patronage first to themselves or to PN who have already shown willing to drop numerous prosecutions against crooked politicians from their ranks.
This was the unfortunate tactic attempted against Dr Mahathir after PH won in 2018, until angry crowds converging on the palace persuaded otherwise.
Likewise, in 2020 the new Agong ignored that Anwar was the most popular candidate amongst MPs with over 90 votes, followed by Mahathir with over 60 votes. Instead, he offered the chance to form a government to the defector and multiple party hopping Mahiaddin, who had received zero votes from fellow MPs.
Owing to Covid and an Emergency, also declared by the Agong, the new incumbent was able to order a crackdown on any form of popular protest and to shut down Parliament which ought to have tested whether or not Mahiaddin had managed to obtain the confidence of sufficient MPS.
As a result the royal appointee was offered months and months to bribe and blackmail enough MPs to establish his tenuous position – eventually overthrown by UMNO.
Should PH end up as the clear leader in this latest race the same tactics cannot be tried again, however desperate UMNO’s warlords clearly are. Malaysia cannot be thrown into an emergency and under strong arm government once again in order to deny the democratic will of the people and the yearning for reform.
See the full paper:
APPOINTING THE PRIME MINISTER AFTER GE15
The consensus among poll-watchers is that it will be a close outcome after the ballots are counted and results announced this weekend: a finish too close to call. But what happens if none of the coalition crosses the magic line of 112 seats? How would the new Prime Minister be appointed? The critical point to keep in mind is that the new Prime Minister must represent popular will. He must enjoy the mandate of the voters who just expressed their choice at the ballot box.
The legal position is clear. Article 43(2)(a) of the Federal Constitution provides that the Yang di-Pertuan Agong shall first appoint as Prime Minister a member of the Dewan Rakyat ”who in his judgment is likely to command the confidence of the majority of the members of the Dewan”. This goes to the heart of parliamentary democracy, not just in Malaysia, but across the globe, whether practised in the Westminister tradition or otherwise. Unlike the Presidential system, in Malaysia the government is responsible and accountable to the elected House, the Dewan Rakyat; in particular, to get legislation through, including the Annual Budget. Hence, it is a condition precedent for the person appointed as Prime Minister that he or she must at all times enjoy the confidence, that is, support, of at least 112 members of the 222 strong Dewan Rakyat.
Guidance should be sought from the experience of other Commonwealth countries which share a similar system as us. Perhaps the closest example would be the position in February 1974 when Prime Minister Ted Heath lost his majority in the United Kingdom general elections. The results were as follows :
Seats
Labour 301
Conservative 297
Liberal 14
Others 23
=====
635
The Conservative Prime Minister, Ted Heath resigned although there were talks with the Liberal party to form a coalition. Instead, Harold Wilson, as the leader of the largest party, was invited to form the Government. Labour was short of the majority of 318 seats, but because it was the party with the largest number of seats, it was asked by Queen Elizabeth to form Government. Its margin over the Conservatives was just 4 seats; but a coalition between the second and third largest parties would have resulted in 311 seats, 10 more that Labour. Yet Labour was tasked to form the administration.
A strong convention has developed in many parliamentary democracies that when no party or coalition is able to reach the magic 50% plus 1 seat to form the majority in the elected House, the Constitutional Monarch (like the UK) or Head of State (like the President in India) will appoint the leader of the party or coalition that has the highest seats, simply because that person enjoys the mandate from the voters in the just concluded general elections to be given the first opportunity to form a Cabinet, and then when Parliament is in session (typically a month or two after general elections) to secure a motion of confidence in the elected House. It is merely another application of the “first past the post” principle which underpins our electoral system. Relevant passages from leading constitutional works in the United Kingdom, Canada and India are reproduced in the Appendix hereto.
Applying that convention here would mean that among the 3 realistic candidates for the office of Prime Minister as President of their respective coalitions, namely, Zahid Hamidi, Anwar Ibrahim and Muhyiddin Yassin, the person whose coalition wins the highest number of seats must be appointed Prime Minister even if their coalition does not secure 112 seats as soon as it is convenient (typically in Malaysia, the following day, that is, Sunday, 20th November). He can then form a Cabinet and build up numbers to secure a motion of confidence by the time Parliament meets. Appointing any other candidate would be anti-democratic, and would be repugnant to the wishes of millions of voters who had just cast their ballots. There is no legal or political reason why this convention of long standing cannot be applied to Malaysia on the evening of 19th and the following day.
In order to depersonalise the discussion, let us call the 3 candidates Mr. X, Mr. Y and Mr. Z. It would be unconstitutional if Mr. X’s coalition has secured 80 seats, Mr. Y’s coalition 45 seats and Mr. Z’s coalition the balance 40 seats out of the 165 seats in Malaya (there are 31 in Sarawak, 25 in Sabah and 1 in Labuan), and Mr. Y is made the Prime Minister simply because he claims Mr. Z also supports him, making a total of 85 seats. Instead, the only constitutional option in this rhetorical example would be for Mr. X to be appointed Prime Minister because his coalition was the most popular, thereby earning him the first right to form a government, and secure support from another 32 seats by the time Parliament is convened. Mr. X is entitled to a fair trial in government, at least until it is clear by a confidence defeat that he does not enjoy support in the Dewan Rakyat. Further, 2 or 3 parties in Sabah and Sarawak may join Mr. X’s coalition or at least not vote against him in a confidence motion, thereby ensuring Mr. X’s government comfortably remaining in power for some time.
Needless to say, if Mr. Z’s coalition secures 112 seats, the palace must call him. In that scenario, there is no other option; Mr. Z must become Prime Minister. It must always be kept in mind that the Yang di-Pertuan Agong, like other constitutional monarchs, cannot bring his personal preference into the decision-making. The Agong must be above party politics, and represent the national interest. Further, the palace must not be involved, directly or indirectly, in the bargaining and negotiations that may take place after the results are known: that is solely for the politicians to sort out. Finally, because millions of Malaysians would have just voted, the wishes of the majority will must be respected by the palace; after all that is why we have a system of government by parliamentary democracy in the first place.
Tommy Thomas
15th November 2022