[Editor’s Note: This is the first entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]
—Andrew Harding, National University of Singapore
The controversial and heady events on and around 9-10 May 2018 are set out in the accompanying narrative in the introduction, to which the reader is referred by way of background and for details of Malaysia’s tumultuous 14th general election (GE14). In this contribution I examine the operation of the constitutional conventions surrounding the appointment by heads of state of the federal and state governments. Although this was the first ever government transition at the federal level, such transitions have occurred several times at the state level. However, these state experiences indicate that such transitions are not always smooth, and indeed even in GE14 there have been problems following state assembly elections in three of the states – Perak, Sabah and Perlis. These cases raise forcefully the question whether the conventions are in practice understood and implemented according to the Westminster model. They also raise the question whether, as written constitutional law, they might be expressed more fully, as Jaclyn Neo has argued in her recent post. This problem of operating Westminster conventions in what Harshan Kumarasingham calls an ‘Eastminster’ has been evident on several occasions in Malaysia.
Malaysia has 13 states, of which 12 held state assembly elections at the same time as the federal election on 9 May, Sarawak having already held state elections in 2016. Nine of the states have a traditional Ruler and they select one among them on a rotating basis as head of state at the federal level (the Yang di-Pertuan Agong). The other four states (Penang, Malacca, Sabah, and Sarawak) have a Yang di-Pertua Negeri or Governor, who is usually an experienced or retired public servant. Under Malaysia’s Federal Constitution, Schedule 8, the state constitutions must conform to the federal model of constitutional monarchy, in which Westminster-style conventions must be observed. These are rendered in the text of the federal and state constitutions. The power to appoint the Prime Minister in Article 43(2) of the Federal Constitution is as follows: ‘… the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet 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’. Again along the lines of the Westminster conventions Article 43(4) states: ‘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’. These provisions are precisely mirrored in all of the state constitutions.
Having their origins in what can be termed the customary law of the British constitution, the Westminster conventions have been written into the texts of many Commonwealth countries. The operation of these conventions requires understanding of how they are supposed to operate. Yet even if rendered in written law in the process of transplantation, they must operate in a specific political and cultural context. For this reason these conventions have given rise to many difficulties, not just in Malaysia but across many Commonwealth countries.
Jaclyn Neo suggests amendment of these provisions to create greater certainty. I agree with this. Constitutional crises in Malaysia’s post-independence history afford ample evidence that conventions are not always properly understood or adhered to. To cite just one of many instances, in 2014 the Sultan of Selangor, during a political crisis at the state level, interviewed three candidates for the position of Menteri Besar (chief minister), before offering it to one assembly member who was duly given a majority in the assembly, putting into reverse the established convention. Malaysia’s monarchies have in fact enjoyed revived authority over the last 15 years or so, after a lengthy period under which they were under threat. They have sometimes embraced an ‘Eastminster’ rather than strictly adhered to ‘Westminster’ constitutional ideas.
On 10 May, as the election results drifted in it, albeit unconfirmed, became clear that the opposition Pakatan Harapan (PH) coalition led by former Prime Minister Dr Mahathir Mohamad had won a parliamentary majority. The events of that day are traced in the accompanying narrative piece, but for present purposes the issue is the operation of Article 43(2). As was held in a famous Malaysian case in 1986, in this situation, ‘[t]he Head of state must be allowed to make his judgment quietly, independently, and in a dignified manner as intended by the Constitution’. This case also makes it clear that the head of state may only act validly on the basis of confirmed official election results.
The events of 10 May show that the delay issuing the results was a problem, and it took in addition a refusal of appointment as PM from one party leader, a letter signed by the PH elected members, an interview with each of the four party leaders, and finally intervention of three important officials before the appointment of the PM was made. The Yang di-Pertuan Agong in a written statement straight after the event states that the Palace ‘strongly refutes any allegation that His Majesty … delayed the appointment of Tun Mahathir’ and further stated that His Majesty ‘has faithfully carried out his duties and functions in accordance with the Federal Constitution … and strongly supports and respects the democratic process and the wishes of his subjects’.
The problem with this story (and as we will see it was a problem at the state level too) is that there is no standard operating procedure (SOP) laid out in the constitution for ascertaining who is likely to command the confidence of a majority of MPs in a newly elected legislature. Since the candidature of Tun Mahathir was only apparent from speeches and newspaper reports, the head of state was justified in ascertaining the position in face-to-face meetings with the party leaders. Given the fluid nature of Malaysian party political allegiances, which was very evident at the state level, he had to be sure that there was a candidate who fulfilled the requirements of Article 43(2). The signed letter concluded the issue in this instance. Arguably in such a situation only a parliamentary vote would be able to provide real certainty. However, this would entail a dangerous period of uncertainty before it could meet and endorse one of its number as head of government; moreover, such meeting would depend on the outgoing PM advising the summoning of parliament, which opens the possibility of him simply delaying such action in order to manipulate the political situation. As Jaclyn Neo points out, the absence of an anti-party-hopping law creates further uncertainty.
In Sabah the Governor appears to have failed to operate the conventions in a proper manner. He appointed the state BN leader as Chief Minister on the basis that he had the support of the minority party holding the balance in the assembly. However, defection of BN members to the opposing Warisan camp resulted in Warisan having a majority. The Governor then appointed the Warisan leader as Chief Minister, resulting in a curious situation of Sabah having two Chief Ministers. The correct procedure should have been for the assembly to meet and express lack of confidence in the appointed BN leader, which would then trigger Article 43(4). The BN leader would have had to tender his resignation or request a dissolution, a request which the head of state would have been justified in rejecting in this instance. The Warisan leader could then have been appointed as Chief Minister. As things stand the situation is unnecessarily messy. The Governor issued a police report against the BN leader, alleging the latter had threatened him. The BN leader is also suing the Warisan leader, alleging that the latter was unconstitutionally appointed. Again an anti-party-hopping law would have prevented this crisis.
In one of the two states – Perlis – that had seen the BN returned to power with a clear majority, a somewhat similar story unfolded and turned into a crisis. When the assembly met none of the BN members supported the chief minister, who had been appointed by the head of state. The position remains unresolved, but yet again an anti-party-hopping law might well have prevented a crisis occurring.
A number of reforms are suggested to avoid such crises and uncertainties arising in future.
Remedial action can be taken as follows.
- In an unconsolidated party system such as that of Malaysia, an anti-party-hopping law is clearly necessary at both federal and state levels, despite the infringement of freedom of association that such a law can be accused of creating.
- A constitutional amendment to Article 43 and its equivalents at state level could require that the head of state act only on the basis of officially certified results, and must not be placed under any pressure from any person in the exercise of his/ her duties. It should also require a party or coalition of parties to register their candidate for PM/ chief minister officially in advance of the polls. Further, it should clarify that the head of state offer that position to such named candidate on the assumption (justified by an anti-party-hopping law) that all relevant elected members will support him/ her in the legislature. In cases of a hung parliament, Article 43 could make it clear that the first opportunity to form a government should be given to the party/ coalition with the largest number of MPs, even if not constituting a majority, as indeed happened in the state of Perak. Neo suggests that the head of state have power to command the presence of all elected members to ascertain their allegiance. I agree that this is desirable, although a signed letter should be adequate in most cases. It should, further, be required that the legislature as its first item of business at its first meeting vote on a motion of confidence in the PM/ chief minister.
- In order to avoid delays or interference in the Election Commission’s performance of its duties, it should be made completely independent; and its standard operating procedures (SOPs) with regard to certification of results should be published so that officials who delay certification can be challenged by party agents. One might go even further to create two electoral bodies, one to organise elections and another to oversee the electoral process, ensuring a free and fair electoral process, as is done in some jurisdictions.
- It must be made clear that, again as a matter of SOP, that all public servants and all officials of public bodies, especially the armed forces, the police, and most importantly the election officials, must remain politically neutral at all times and do their duty according to the law. In the narrative of May 2018 the PM’s office even pressured the civil aviation authority to interfere with an airline company to serve its political purpose. I do not suggest here that the law should require private companies to observe neutrality, but it is open to them to clarify their policies with regard to election periods (e.g. on staff leave, advertising, provision of transport, etc.) They have a moral if not a legal obligation to support the democracy from which they also benefit.
- With regard to the performance of their functions by the heads of state, it is important that the advice given to them is based on a clear understanding of the constitution. It is suggested that the heads of state be afforded confidential constitutional advice from a federal law officer, to ensure that consistent and correct advice is given regarding the appointment and dismissal of governments. It is not a matter of choice whether a convention is adhered to; it is a matter of constitutional democracy.
The new government is already looking at a raft of public law reforms. Recent Malaysian experience has been instructive to say the least, and there is now a chance to correct many defects in the constitutional system.
Suggested citation: Andrew Harding, ‘Westminster’ Conventions in ‘Eastminster’: Reflections on the Role of the Heads of State after the Malaysian Tsunami, Int’l J. Const. L. Blog, Jun. 21, 2018, at: http://www.iconnectblog.com/westminster-conventions-in-eastminster-reflections-on-the-role-of-heads-of-state-after-the-malaysian-tsunami/
 See also Jaclyn L Neo, ‘Constitutionalizing Clear Rules for Political Transition: Entrenching the Malaysian Tsunami’ (I-CONnect, 16 May 2018) <http://www.iconnectblog.com/2018 /05/constitutionalizing-clear-rules-for-political-transition-entrenching-the-malaysian-tsunami-i-connect-column/> accessed 14 June 2018.
 See, e.g., Andrew J Harding, ‘Turbulence in the Land Below the Wind: Sabah’s Constitutional Crisis of 1985–86’ (2008) 29(1) The Journal of Commonwealth & Comparative Politics 86.
 Neo (n 1).
 Harshan Kumarasingham, ‘Eastminster – Decolonisation and state-building in British Asia’ in Harshan Kumarasingham (ed), Constitution-Making in Asia – Decolonisation and State-Building in the Aftermath of the British Empire (Routledge 2016). The argument is that the transplanting of Westminster conventions to Asian countries has resulted in the operation of rules which are in practice different from orthodox ‘Westminster’.
 See, further, Andrew J Harding, ‘Nazrinian monarchy in Malaysia: The resilience and revival of a traditional institution’ in Andrew J Harding and Dian AH Shah (eds), Law and Society in Malaysia: Pluralism, Ethnicity and Religion (Routledge 2017).
 See Federal Constitution, Article 71 and 8th Schedule.
 Andrew J Harding, ‘The “Westminster model” constitution overseas: Transplantation, adaptation and development in Commonwealth states’ (2004) 4 Oxford University Commonwealth Law Journal 143.
 Kumarasingham (n 4); Donald Anthony Low (ed), Constitutional Heads and Political Crises (Palgrave Macmillan 1988).
 Neo (n 1).
 Harding (n 2, n 5).
 Harding (n 5).
 See the narrative referred to above n1.
 See Datuk Nizar Jamaluddin v Datuk Seri Zambry Abdul Kadir  2 MLJ 285.
 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.
 ‘Malaysia GE: Malaysia’s king denies Mahathir’s appointment as PM was delayed’ (The Straits Times, 10 May 2018) <https:/www.straitstimes.com/asia/se-asia/malaysia-ge-malaysias-king-denies-mahathirs-appointment-as-pm-was-delayed> accessed 27 May 2018.
 Neo (n 1).
 Introduction to the Symposium
 ‘Sabah YDP lodges police report against Musa Aman’ (Borneo Post Online, 20 May 2018) <http://www.theborneopost.com/2018/05/20/sabah-ydp-lodges-police-report-against-musa-aman/> accessed 27 May 2018.
 Suraini Andokong, ‘Musa sues TYT and Shafie’ (Borneo Post Online, 17 May 2018) <http://www.theborneopost.com/2018/05/17/musa-sues-tyt-and-shafie/> accessed 27 May 2018.
 Predeep Nambiar, ‘Perlis MB Crisis: Ruler might need to start over’ (Free Malaysia Today, 24 May 2018) <http://www.freemalaysiatoday.com/category/nation/2018/05/24/perlis-mb-crisis-ruler-might-need-to-start-over/> accessed 27 May 2018.
 Dewan Undangan Negeri Kelantan v Nordin Salleh  1 MLJ 697.
 The Introduction to the Symposium.