Democratic backsliding has become quite the flavour of the decade, unfortunately, as the pages of this blog reveal all too starkly: Hungary, Poland, Sri Lanka, Brazil, Indonesia, Turkey, and many other instances across the world. In contrast Malaysia appeared – until recently – an interesting and all too rare contrary example of a state that was, to redeploy the metaphor, forward-sliding. Recent events, however, cast doubt on such analysis, as this note will argue.
On 10 May 2018 a new government – the first in 61 years since independence – took office on a reform agenda. The Pakatan Harapan (Coalition of Hope, or PH) won unexpectedly (how often is that adverb being used of general elections these days?), replacing the kleptocratic and increasingly divisive Barisan Nasional (National Front) government of Najib Razak, sunk by the ongoing ‘1MBD’ scandal that had broken in 2015. PH took power in a democratic tsunami that inspired expectations for much-needed governance reforms.
The victory was ironic in several important respects. The constituent parties of the PH coalition were led by former long-term BN Prime Minister (1981-2003) Mahathir Mohamed, aged 93, who came out of a long retirement to shore up support amongst the Malay voter base by campaigning against his former party and a Prime Minister he emplaced. By some accounts, the PH needed to secure at least 30 percent of the Malay vote in order to win the elections. Two factors make this situation even more ironic. First, many of the systemic issues underpinning the 1MDB scandal (the breakdown in the rule of law, money politics, cronyism, and conflicts of interest) were ones for which the first Mahathir government could fairly be blamed. Second, a necessary condition for this arrangement was a truce between Mahathir and Anwar Ibrahim, his former Deputy Prime Minister and Finance Minister, with whom he had seriously fallen out in the late 1990s following the Asian economic crisis, Anwar’s attempts to dethrone Mahathir, and his jailing on Mahathir’s watch, ostensibly framed on a sodomy charge. Thus Mahathir, the leader of a small, custom-built party, PPBM (which essentially is a party built by former UMNO members), was the Prime Minister of choice for the coalition, which included PKR (Anwar’s party), DAP (a mainly Chinese party), and Amanah (an Islamic splinter party). The strategy paid off. With Mahathir as the poster-boy of the PH campaign, they managed to make inroads in the Malay heartlands and other urban and semi-urban constituencies that were previously BN strongholds. This led to a famous victory that indicated the people really did rule and abuses of power would not be tolerated.
Creeping Reforms and Changing Political Dynamics
The reform process began in earnest, but as often happens in such changes of government, political will appeared to evaporate after a few months. The PH government started to trim its actions towards obtaining support from ethnocratic nationalist and religious interests that had largely been represented by the previous governing coalition. For example, the government U-turned on signing both the Rome Statute and the ICERD after demonstrations of disaffection by nationalist factions, supported by Malaysia’s nine traditional rulers. This was compounded by the rhetoric played up by BN politicians that the DAP was effectively running and dictating to the PH government. All this had an impact on the Malay psyche, despite the lack of solid basis behind the allegations.
PH made progress on some promised reforms, such as replacing heads of independent agencies and commissions, prosecuting the kleptocrats, and abolishing the Goods and Services Tax introduced by the BN government. However, they stalled on other reforms, frequently announcing changes that did not in fact occur, such as making independent agencies report to parliament instead of the Prime Minister. Crucially, they failed to follow through on territorial governance issues relating to local government and the constitutional status of the East Malaysian states of Sabah and Sarawak. By October 2018, Mahathir admitted that PH had made promises in its election manifesto without expecting to win – essentially an admission that they were not able to fulfil the promises for reforms.
Meanwhile, the opposition appeared to enjoy a political resurgence based on persistent ethno-nationalist rhetoric and the lack of economic improvement, winning several by-elections. And even worse than this, the PH coalition fell into faction fights over the succession. Whereas it had been agreed that Anwar would take over as Prime Minister, the timing never seemed to become clear, and PKR itself was split between a faction under Azmin Ali the Economic Affairs Minister, and a larger faction under Anwar himself.
Events in February/ March 2020
In late February 2020, matters were coming to a head. Accounts have varied as to the precise sequence and causation of the events that followed but the outline of events, at least, is now fairly clear.
A meeting of PH leaders on 21 February affirmed once more that Anwar would take over as Prime Minister, apparently after the APEC meeting in November 2020. Far from settling an awkward issue, this seems to have prompted Azmin to make a decisive move. He called MPs from opposition parties as well as from PH, to a meeting at the Sheraton Hotel in Petaling Jaya on 22 February, which indicated the formation of a new coalition of parties and factions, presented as forestalling a power-grab by Anwar, and as being conducted to save Mahathir’s premiership. These political machinations can be attributed not just to individual ambitions in a system where personality gains more votes than policy, but also to the fact that the paramount leader was from a small party (with only 11 seats in parliament), lacking a solid base of support in the coalition.
Azmin’s ‘Sheraton move’ indicated the collapse of the PH coalition. In an acrimonious meeting of PPBM’s council on 23 February Mahathir (Chairman of PPBM) refused as a matter of principle to work with BN parties that had been dismissed from power by the voters in May 2018. Yet, Muhyiddin Yassin, a former BN Deputy Prime Minister, now President of PPBM, expressed willingness to work with the BN parties, apparently taking the view that ‘politics comes before principle’. PPBM had now become split into at least two factions.
On 24 February, Mahathir met the Yang di-Pertuan Agong (King), the constitutional head of state, to offer his resignation as Prime Minister, on the basis that he no longer enjoyed the confidence of a majority of members of parliament. The King responded by appointing Mahathir as ‘Interim Prime Minister’, and the Cabinet was taken to have resigned along with Mahathir, leaving Malaysia with effectively no government. Mahathir then attempted to form a new ‘unity government’ based on individual talents rather than a coalition of parties, but this appeared to gain little support across the political spectrum.
Thus the position regarding parliamentary support became considerably confused. Muhyiddin claimed to have a majority. What was left of PH following the defection of Azmin’s and Muhyiddin’s factions, swung behind Anwar[, almost immediately changing its mind and announcing on 25 February its renewed support for Mahathir. On 25 and 26 February, the King proceeded to interview all individual MPs to ascertain who commanded majority support. The outcome was inconclusive, and the Palace announced that the King would invite party leaders to nominate an MP as the Prime Minister. The King then summoned a meeting of all the nine Malay Rulers (Sultans) on 28 February. We do not know what was discussed, but we may fairly assume, given the circumstances, that the Rulers endorsed the course of action that the King then took: to appoint Muhyiddin as Prime Minister on 1 March.
It is assumed that Muhyiddin represented to the King that, inter alios, the entire parliamentary membership of PPBM, swelled to 36 by the Azmin faction, supported him. This is unlikely to be factually true, since at least four such members, including Mahathir and his son Mukhriz Mahathir, had come out in favour of Mahathir continuing as Prime Minister. Over the two days prior to Muhyiddin’s appointment, adding to the confusion, PH announced it had statutory declarations from 114 MPs (112 being a majority of the 222-member house) supporting Mahathir. The King refused a second audience for Mahathir to present his evidence contradicting Muhyiddin’s representations, following the announcement that Muhyiddin would be appointed.
At the time of writing, the matter of confidence has not been tested on the floor of the house, as Mahathir had indicated it should be, as the summoning of Parliament stands postponed until 18 May 2020. Mahathir later indicated that it would not be possible to unseat the new government, known as ‘Perikatan Nasional’ (PN), by a no-confidence motion, because Muhyiddin, enjoying what in the Malaysian context are the considerable advantages of incumbency, would be able to secure the necessary votes by inducements to waverers. Indeed, Muhyiddin’s Cabinet comprises no less than 70 individuals, the largest ever appointed in Malaysian history. The PN government includes members from BN component parties and independent parties from Sabah and Sarawak, as well as MPs who defected from PH, including Azmin’s former PKR faction, and PPBM. Notably the Cabinet list excluded key BN leaders from UMNO, PN’s largest party, who were subject to criminal charges, including Najib himself and former Deputy Prime Minister Ahmad Zahid Hamidi, who is now President of UMNO. Muhyiddin himself had been dismissed as Deputy Prime Minister by Najib for questioning his response to the 1MDB scandal.
Determining the Appointment of a Government: A Key Constitutional Issue
The main political problem that this course of events generated is the appointment of a government that had been roundly rejected at the polls in 2018. The largest parties elected (PKR and DAP, with 37 and 42 seats respectively) do not appear in the PN government. Moreover, the PN government, unlike all of its predecessors since 1957, contains very little ethnic minority and gender representation. Ethnic minorities had largely switched to voting for the PH parties in 2018. The PN government is thus being referred to in Malaysian parlance as a ‘back-door government’, and has a distinctly Malay-Muslim appearance compared to the PH government.
There is also concern that the constitutional conventions were incorrectly applied in this government crisis, so that the Constitution has been undermined. This contention rests on the following issues.
The first concerns the appointment of Mahathir as ‘Interim Prime Minister’, a post which is not indicated anywhere in the Constitution. It does not appear from the reports that Mahathir offered His Majesty any advice as to who would be likely to command the confidence of the majority of MPs under Article 43(2) of the Federal Constitution. The position of ‘Interim Prime Minister’ is thought by some to be in accordance with Westminster conventions, where a Prime Minister holds office without the confidence of a majority of members of parliament, as when parliament stands dissolved before a general election, or when a successor is being chosen (for example, when Theresa May resigned as Prime Minister in Britain in July 2019, but remained in post pending the election of her successor as Conservative Party leader). This is a misunderstanding in our view. The expression ‘interim Prime Minister’ (or sometimes ‘caretaker Prime Minister’) indicates a political judgment rather than a constitutionally mandated office: the Prime Minister simply remains Prime Minister until a successor who commands majority support is appointed. The resulting ‘resignation’ of the Cabinet is also a false step, as the Prime Minister and Cabinet remain in office in such a situation. The position of the Cabinet depends on that of the Prime Minister: this much is established even in Malaysian case law, and is clearly indicated in Article 43(4) of the Federal Constitution.
Secondly, in the circumstances, what do we make of Muhyiddin’s appointment as Prime Minister, given that it seems unclear that he enjoyed the confidence of a majority of MPs, as both sides claimed to have such a majority at the material time?
In the usual case one would expect in a Westminster-type system that a matter of confidence would be settled on the floor of the house by a motion of no confidence in the government, or else a failure to pass the budget or other legislation of central importance. There are also cases where the Prime Minister resigns due to lack of support within his or her own party. This differs from the first case because, instead of the government resigning the Prime Minister will advise the head of state to appoint a successor when such successor is identified. It may be that the Prime Minister has already been voted out and replaced as leader; or it may be that a party election has to be organised, in which case the Prime Minister will remain in office temporarily. The present instance is similar except that, as explained above, leadership of the party (PPBM) would not determine majority support in parliament as a whole. Given the split in PPBM, it remained unclear whether its leader (Muhyiddin) had enough parliamentary support, or whether Mahathir retained enough parliamentary support despite losing control over his own party.
This situation raises the difficult question of what evidence the head of state should rely on to judge the position. The possibilities include support expressed on the floor of the house; expressions of support by party leaders; statutory declarations or letters of support signed by individual members; and the head of state’s own soundings amongst political leaders. In Malaysia, it is established in case law that the head of state may refer to material other than support or lack of it expressed on the floor of the house. The precedent in Nizar v Zambry in 2010 related to the issue of dismissal of a state chief minister on grounds of lack of support of members of the state legislative assembly, and the precedent is admittedly quite problematical. Members may say or sign a document saying one thing and do another when called on to express support in the legislature; and the ruling opens up precisely the kind of uncertainty encountered in the present case. Whatever evidence the head of state chooses to utilize will potentially bring him into political controversy, as occurred in the case of the state of Perak in 2009 that gave rise to Nizar v Zambry.
In this instance, the King went to the extent of interviewing all the members of parliament as well as speaking to party leaders. If – as seems likely – he took into account Muhyiddin’s representation as to the 36 votes from PPBM, this seems on the face of it quite in order. A head of state should be entitled to rely on the veracity of representations by party leaders made directly to him; if not, how is he supposed to ascertain where support lies? However, during the two days before Muhyiddin was sworn in it became apparent that his representation might not be correct and that it was possible that Mahathir had enough support to continue, as the latter had alleged. Thus, the position as judged by His Majesty seemed at variance with the fact of 114 MPs signing a statutory declaration expressing support for Mahathir. In such situation, one would assume that the head of state would pause before making the appointment and let the political process yield a clear outcome. After all, it would be embarrassing if the newly appointed Prime Minister were to be subjected immediately to a successful no-confidence vote; this eventuality would suggest a serious misjudgement on the part of the head of state, who might well then be forced to reappoint the very person he had just decided did not command majority support.
We may speculate that the King in this case felt justified in appointing Muhyiddin by the interviews he had had with MPs, and perhaps also by the prior encouragement of his brother Rulers. Interestingly enough, the Keeper of the Royal Household, in responding to an editorial in The Guardian, stated that
Clearly, Istana Negara went beyond its call of obligation by meeting all the Honourable Members of the House of Representatives and the leaders of the various political parties, prior to His Majesty arriving at any conclusion … Obviously, His Majesty gave a great deal of his attention towards this grave matter (emphasis added).
On the facts this is clearly the case, and yet the very words ‘went beyond its call of obligation’ might lead us to think that a less proactive approach might in fact have been more appropriate and more usual in the context of a Westminster system of government, allowing the political elites to resolve the issue amongst themselves. For all that, it is also true that conventions, being a form of customary law at Westminster, may take on a different patina of interpretation when rendered in the text of a Commonwealth state and then operated for more than six decades. Malaysian precedent, as we have seen, even if problematical, indicates a somewhat expansive role for a head of state in matters of confidence and government succession. Accordingly, it is not at all clear that the King did not act within the meaning of the Constitution. Under Article 43(2)(a) of the Federal Constitution,
the Yang di-Pertuan Agong shall first [i.e. before appointing the Cabinet] 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.
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.
Clearly, therefore, Mahathir could have requested a dissolution when he met His Majesty to tender his resignation. Although there was much talk of dissolution, this clearly could not be achieved by the King acting without a request. Thus the decision to summon Parliament only on 18 May kicks forward the final determination of support. The Constitution only requires Parliament to sit within six months of the last sitting.
The real lesson of this episode is that once the determination of the issue of confidence is removed from the floor of the legislature it becomes very uncertain what kind of evidence the head of state should consider and what sequence of events should take place. Therefore his attempts to resolve the situation, while diligently administered under trying circumstances, could be seen as controversial and criticised, rightly or wrongly, as partial. Arguably, to be sure, a head of state must assume representations by a party leader to be correctly made; but arguably also in such a politically fraught situation he should await the outcome of the parliamentary or extra-parliamentary political process rather than making an early judgment as to who is likely to command the support of a majority. What is ‘likely’ rather depends on circumstances prevailing when the question is raised. However, given previous dealings by heads of state in Malaysia and the precedent in Nizar v Zambry, not to mention the high and unquestioned social status of the Rulers in Malaysian society, it probably has to be accepted that Malaysia has, for better or worse, become an ‘Eastminster’, to use Harshan Kumarasingham’s telling terminology.
The larger political question is of course that many May 2018 voters feel cheated by the substitution of the ‘back door’ PN government, irrespective of its constitutionality. Ultimately the legitimacy of Muhyiddin’s government falls to be decided [by the political process. Early signs are that back-sliding is indeed under way, that ethnocracy is restored, and that the reform process is now history.
Suggested citation: Dian AH Shah & Andrew Harding, Constitutional Quantum Mechanics and a Change in Government in Malaysia, Int’l J. Const. L. Blog, Apr. 8, 2020, at: http://www.iconnectblog.com/2020/04/constitutional-quantum-mechanics-and-a-change-in-government-in-malaysia/
 See, e.g., Dian A H Shah, ‘Indonesia’s Pesta Demokrasi in the face of Regressing Constitutional Democracy’, (ICONnect, 17 April 2019) at: http://www.iconnectblog.com/2019/04/indonesias-pesta-demokrasi-in-the-face-of-regressing-constitutional-democracy/ (accessed 27 March 2020); Antonio Moreira Maues, ‘Bolsonaro’s First Year: Trying to Erode Democracy’, (ICONnect, 1 February 2020) at: http://www.iconnectblog.com/2020/02/bolsonaros-first-year-trying-to-erode-democracy/ (accessed 27 March 2020).
 See for eg, ‘GE14: Did a Malaysian Tsunami Occur?’ (Monash University) at: https://www.monash.edu.my/research/researchers-say/ge14-did-a-malaysian-tsunami-occur (accessed 27 March 2020).
 ‘Dr M admits in closed-door meeting Pakatan made promises without expecting to win GE14’, (The Star Online, 14 August 2018) at: https://www.thestar.com.my/news/nation/2018/08/14/dr-m-admits-in-closed-door-meeting-that-pakatan-made-promises-without-expecting-to-win-ge14/ (accessed 27 March 2020).
 ‘Probably what Malaysia needs now’, (The New Straits Times, 2 March 2020) at: https://www.nst.com.my/news/politics/2020/03/570793/probably-what-malaysia-needs-now (accessed 4 April 2020).
 The account cited below, based on a statement by the Palace, contradicted a claim by The Guardian that Malaysia had been subjected to a royal coup: ‘Istana Negara Dismisses Guardian’s “royal coup” article, says it is misleading’ (The New Straits Times, 8 March 2020) at: https://www.nst.com.my/news/nation/2020/03/572848/istana-negara-dismisses-guardians-royal-coup-editorial-says-it-misleading (accessed 8 March 2020).
 ’Dr Mahathir proposes to lead ‘unity government’ – sources’, (The Edge Markets, 25 February 2020 )at: https://www.theedgemarkets.com/article/dr-mahathir-proposes-lead-unity-government-%E2%80%94-sources (accessed 27 March 2020).
 Datu Amir Kahar bin Tun Datu Haji Mustapha v Tun Mohamed Said bin Keruak, Yang di-Pertua Negeri Sabah & Ors  1 Malayan Law Journal 169; and see A Harding, ‘When is a resignation not a resignation? A crisis of confidence in Sabah’ 84 the Round Table 353 (1995).
 See for eg, Stephen Kalong Ningkan v Government of Malaysia  2 Malayan Law Journal 238 (Privy Council); Tun Datu Haji Mustapha v Tun Datuk Haji Mohamed Adnan Robert and Datuk Joseph Pairin Kitingan No 2  2 Malayan Law Journal 471.
 See Datuk Nizar Jamaluddin v Datuk Seri Zambry Abdul Kadir  2 Malayan Law Journal 285.The state constitutions in Malaysia are on all fours, for present purposes, with the Federal Constitution: see Sch.8 thereof.
 ‘Istana Negara’s statement on The Guardian’s editorial’, (The New Straits Times, 8 March 2020) at: https://www.nst.com.my/news/nation/2020/03/572767/istana-negaras-statement-guardians-editorial (accessed 2 April 2020).
 See eg,Tun Mustapha’s case (n 8).
 Article 55 of the Federal Constitution.
 Indeed they were so represented in The Guardian’s editorial: ‘The Guardian view on a royal coup: a king overturns a historic election’, (The Guardian, 3 March 2020) at: https://www.theguardian.com/commentisfree/2020/mar/03/the-guardian-view-on-a-royal-coup-a-king-overturns-a-historic-election (accessed 2 April 2020).
 See Harshan Kumarasingham, ‘Eastminster – Decolonisation and State-Building in British Asia’, in H. Kumarasingham (ed.), Constitution-Making in Asia – Decolonisation and State-Building in the Aftermath of the British Empire (Routledge, 2016)