—Jaclyn L. Neo, National University of Singapore Faculty of Law
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]
A new alliance is in power. In Malaysia, the Barisan Nasional / National Front Alliance, which has been in power since the country became independent in 1957, spectacularly lost the General Elections held on 9 May 2018. Angered by persistent stories of corruption and incompetence, as well as frustrated by economic issues such as rising costs of living, the imposition of a Goods and Services Tax, stagnant salaries, lack of job opportunities, and a weakened currency, an estimated 82% of voters turned out in droves to rebuke the incumbent government.
In what has now been called the “Malaysian tsunami”, Barisan Nasional lost almost half of its seats in the federal Parliament, lost control over all but three state governments in the federation, and won a mere 36% of the popular vote. This was a radical fall from its share of the popular vote at 47.37% in the last General Elections in 2013, and from its highest at 65.5% in 1995. It won only 79 seats in the federal Parliament, out of 222. In contrast, a new coalition of four political parties led by former Prime Minister Mahathir Mohamad, Pakatan Harapan (the Hope Alliance) (“PH) won 47.3% of the popular vote and control over 122 seats in the Federal Parliament. This is 10 more than the 112 seats needed to form a simple majority in Parliament.
The election was a demonstration of people’s power to assert their democratic voice, despite a whole slew of attempts to try to suppress the vote. These included setting polling day in the middle of the work week; not updating the electoral register to allow voters who registered after January 2018 the right to vote; and finally, requiring overseas voters to mail back their ballots within a short campaigning period of 11 days. These attempts further angered voters, galvanising many to assert their democratic right at the ballot boxes.
However, even before the celebrations could start, the political intrigue had thickened. There was news of delay in Mahathir’s appointment by the constitutional monarch, the Yang di-Pertuan Agong, which the latter denied in a statement. When Mahathir was eventually summoned the day after the elections, the swearing in ceremony was delayed and finally took place in the late evening. There was understandably some anxiety over this as entrenched political parties sometimes refuse to give up power to make way for peaceful political transitions. When the leader of BN, the former Prime Minister, cryptically claimed that no single party had won the majority of seats in parliament, there were serious concerns that BN might try to fight the vote.
Even when it became clear that PH had won a majority of the votes, the political intrigue continued and remains unresolved in some instances. What played out in a small way at the national level with respect to the appointment of the Prime Minister was and is still being played out at the sub-national level. Malaysia is a federation of 13 states and 3 territories. At last count, BN managed to win a clear majority of seats in two states (Perlis and Pahang); whereas PH won back control of two states (Penang and Selangor) and gained control over four more states (Kedah, Negeri Sembilan, Melaka, and Johor). The fate of two other states (Perak and Sabah) were however up in the air for several days. In Perak, PH won 29 seats out of 59 whereas BN won 27 seats. The Islamic Party held 3 seats. This meant that no single party has a majority in Perak. There was talk that BN was seeking to enter into a coalition with the Islamic Party. BN even issued a statement saying that it had enough support to form the government. Eventually, however, the Perak sultan decided that since PH has the largest number of seats, it would be given the first opportunity to form the government. PH eventually received endorsement from two BN members to form the government and the Perak sultan appointed its choice for Chief Minister. The confusion however did not end as one of the BN members who had endorsed PH later issued a statement saying that she had not resigned from BN but had merely declared her support for PH because it was the people’s choice. If so, the new Perak government could face challenges in the future in passing new laws since it technically does not have a majority; BN and PAS could form a voting alliance to block any future legislative initiatives.
In Sabah, things were even more confusing. BN and a local party, Warisan Sabah (which is aligned with PH), had each won 29 seats of the 60 seats in the state legislature. A local party, Parti Solidariti Tanah Airku (Star), won 2 seats, which again gave it the possibility of playing kingmaker. Star announced that it would support the BN alliance. With this announcement, the leader of Sabah BN went to the Yang di-Pertua Negeri who appointed him as Chief Minister. However, several days later, Warisan Sabah announced that 6 BN members had defected to Warisan, which meant that Warisan now has the majority in the state legislature. In a strange twist of events, the Yang di-Pertua Negeri agreed to meet the leader of Warisan and appointed him as Chief Minister. This was done even though the first appointed Chief Minister announced that he had yet to resign. It seems therefore that currently, Sabah may well have two Chief Ministers, and two governments, and a political impasse.
These political intrigues make for a great political thriller. But they also affect the democratic stability of the country. In my view, at least two changes are needed to minimize these problems. First, an anti-hopping or anti-floor crossing provision should be inserted into the constitution. This would require every parliamentarian or legislative assemblyman to resign from his/her seat should s/he resign from the party whose platform s/he was elected on. As an example, article 46(2) of the Singapore constitution, which was based on the Malaysian Federal Constitution, has a provision stating “The seat of a Member of Parliament shall become vacant … if he ceases to be a member of, or is expelled or resigns from, the political party for which he stood in the election”. This is in addition to the other usual ways in which a seat in Parliament becomes vacant, e.g. by resignation, expulsion by Parliament, or prolonged absence. Thereafter, as per article 54 of the Federal Constitution, a by-election would have to be called within sixty days to fill the vacancy.
Secondly, a firm constitutional convention needs to be put in place concerning the appointment of the Prime Minister and the Chief Minister of the respective states. Malaysia constitutionalized the Westminster convention with respect to appointment of Prime Minister whereby it is the constitutional monarch who appoints the Prime Minister. Under article 43(2)(a) of the Federal Constitution, “the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) … a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House” (emphasis added). The Federal Constitution further requires that a similar provision be included in the State Constitutions with respect to the appointment of the executive council (state cabinet), to the effect that “the Ruler shall first appoint as Menteri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the Assembly”. Within each state is a constitutional monarch who serves as ‘Ruler’ of the state. Several constitutional crises have erupted in the past with respect to the appointment of Chief Ministers at the state level, and coincidentally, these were in Sabah (1985) and Perak (2009).
Constitutional heads of state have an obligation to ensure smooth political transitions in accordance with the democratic choice of the People. Andrew Harding has presciently observed that “British-style conventions have not always been observed by the Rulers, who have a different notion of their prerogatives from that which is scrupulously adhered to by their British counterpart.” Consequently, clearer rules need to be put in place with regards to how discretion concerning appointments, and consonantly, dismissals, should be exercised. Such rules are important also to ensure that the constitutional monarchs are able to exercise their discretion properly. Indeed, as the Malaysia court observed in a case arising from the 1985 Sabah crisis, “[t]he Head of State must be allowed to make his judgment quietly, independently and in a dignified manner, as intended by the Constitution.”
Consequently, the head of state must only appoint as Chief Minister the candidate proposed after making due enquiries into whether he has the confidence of the majority in the legislature. This can be guided by at least two principles. First, the party that wins the highest number of seats in the legislature should first be given the opportunity to form the government. In this regard, the approach taken by the Sultan of Perak is to be commended. Secondly, the constitutional head of state must endeavour to ascertain for himself which political party or alliance has clearly won the majority. He may do so by summoning all parliamentarians to the palace to obtain an in-person determination as to who has the confidence of the majority. In the alternative, the proposed Chief Minster could present a signed letter or, better still, statutory declarations from each of his/her supporters, to the constitutional head of state to demonstrate that s/he has the support of the majority. Interestingly, this was one of the steps taken by PH at the federal level to preclude claims that Mahathir did not enjoy the confidence of the majority to become Prime Minister. PH asked all its members of Parliament and Warisan Sabah to sign a letter to show that Mahathir has a majority, and this was presented to the Yang di-Pertuan Agong. The Yang di-Pertuan Agong also met with the leaders of all the component parties of the PH alliance to ascertain that they were all in support of Mahathir as Prime Minister. These two principles should be established as part of a clear constitutional convention, if not formalized as constitutional rules, to guide future exercises of appointment discretion by constitutional heads of state in Malaysia.
As the dust settles on this historic election, there will be successes and failures, hope and disappointment. Much will need to be done to repair democratic constitutionalism in Malaysia. But at the very least, the election signifies an stirring of political consciousness among the Malaysian People and represents an assertion of their right as democratic sovereigns who can and will hold political leaders accountable. As Malaysia undergoes this political transition, constitutionalizing anti-hopping and clear appointment conventions would go some way in ensuring political stability while preserving democratic choice.
Suggested citation: Jaclyn L. Neo, Constitutionalizing Clear Rules for Political Transition: Entrenching the Malaysian Tsunami, Int’l J. Const. L. Blog, May 16, 2018, at: http://www.iconnectblog.com/2018/05/constitutionalizing-clear-rules-for-political-transition-entrenching-the-malaysian-tsunami-i-connect-column/
 These are the Democratic Action Party (DAP), Parti Keadilan Rakyat (Peoples’ Justice Party), Amanah (a breakaway faction of the Islamic party), and Parti Pribumi Bersatu Malaysia (Mahathir’s new party).
 The PH coalition itself won only 113 seats but they have the support of a Sabah-based Parti Warisan Sabah, which has 8 seats in Parliament. This brings PH’s majority to 122 seats.
 See generally Edward Friedman & Joseph Wong, Learning to lose: Dominant parties, dominant party systems, and their transitions, in Political Transitions in Dominant Party Systems (Joseph Wong, & Edward Friedman, eds., 2009).
 Article 71, Eight Schedule of the Federal Constitution.
 The Sabah crisis also involved much intrigue, with one party forcing their way into the head of state’s residence in the middle of election night and refusing to leave until their choice of Chief Minister had been sworn in as Chief Minister. It later turned out that that party did not have a majority of seats in the legislative assembly, and the Yang di-Pertuan Negeri then swore in another Chief Minister. For more, see A.J. Harding, Turbulence in the Land Below the Wind: Sabah’s Constitutional Crisis of 1985–86, 29(1) The Journal of Commonwealth & Comparative Politics 86 (2008).
 Jaclyn L. Neo, Change and Continuity: The Constitutional Head of State and Democratic Transitions in Malaysia, 5 Malayan Law Journal, i (2012)
 Andrew Harding, Law, Government and the Constitution in Malaysia 75 (1996).
 Tun Datu Haji Mustapha bin Datu Harun v Tun Datuk Haji Mohamed Adnan Robert, Yang di-Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan  2 MLJ 420, 473.