—Andrew Harding, Visiting Research Professor, Centre for Asian Legal Studies, National University of Singapore
Over the last four years or so, Malaysian politics, which had been eminently predictable under dominant-coalition rule for 60 years, have been fluid and unpredictable to the point of extreme fragmentation. The dramatic constitutional consequences of this situation have been highlighted in previous articles in this blog.[1] This political development is largely due to the notorious ‘1MDB’ corruption scandal,[2] which broke in 2015 and led to the first change of government in Malaysian history in 2018, when the Pakatan Harapan (Coalition of Hope, PH) won an unexpected victory over the long-ruling Barisan Nasional (National Front, BN). It also led ultimately to the jailing of former Prime Minister Najib Razak on corruption charges.[3]
Having embarked on reforms, but making little progress, the PH government collapsed in March 2020, when a faction of its leading party left the coalition, resulting in the resignation of Prime Minister Mahathir Mohamad.[4] This in turn led to unstable governments with precarious majorities under first, Muhyiddin Yassin (2020-21), and then Ismail Sabri (2021-2). The realignment of parties and defection of individuals and factions also resulted in the emergence of a new coalition, Perikatan Nasional (National Alliance, PN), which held office without its majority being tested until Muhyiddin Yassin was replaced with Ismail Sabri as Prime Minister in August 2021. The PN government was maintained in office by the equivocal support of BN MPs. An early election was ultimately unavoidable, and was held on 19 November 2022.
Two elements in this election were new. The voting age had been reduced from 21 to 18, and an anti-party-hopping law had been passed the previous month, which prevented MPs resigning from the political party they belonged to without losing their seats in parliament. The latter law was an attempt to create some party discipline in a rapidly disintegrating political order. Both these changes were introduced via constitutional amendment.[5]
In the 2022 general election the increasing complexity of Malaysian politics was evidenced by a contest between no less than 36 parties and five coalitions. Parties variously represent the numerous ethnic groups, while some are regional, others ideological or religious. Not only is it impossible in such a system for a single party to obtain a majority; it is also difficult even for a multi-ethnic, multi-party coalition to do so. In a first-past-the-post British-style electoral system, parties with too narrow an appeal cannot obtain sufficient seats, forcing them into one of the coalitions that have held power for all of Malaysia’s history – since 1957.
The results in the elections for the 222 seats in the lower house, the Dewan Rakyat, were just as predicted by numerous polls – a hung parliament dominated by three coalitions (PH, BN and PN), none of which was anywhere near close on its own to obtaining the 112 seats needed to form a government. The long-time opposition leader Anwar Ibrahim’s PH coalition obtained 82 seats, and much the largest share of the popular vote at 37%. The PN coalition under Muhyiddin Yassin obtained 73 seats and 33% of the vote. The BN, led by Zahid Hamidi, himself currently defending corruption charges, was reduced to its worst ever result, with only 30 seats and 23% of the vote. Other seats were won by coalitions of parties from Sabah and Sarawak, and some smaller parties.[6]
The election result was a challenging one for all three coalitions. PN had performed unexpectedly well, but was very far from obtaining a majority. PH had seen a reduction in the number of its seats and its votes, but still had more seats and votes than either of the other two coalitions. BN had seen a large reduction in its support and now found itself in third place, after having won every general election between 1955 and 2013.
Typical of constitutions in ‘Westminster’-style parliamentary systems, the Federal Constitution of Malaysia says at Article 43(2)(a): ‘the Yang di-Pertuan Agong [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.’ The Agong is the head of state in a constitutional monarchy in which the office rotates between the nine traditional Rulers or Sultans. In the last fifteen years or so, Malaysians have become used to an assertive monarchy which sees itself as not necessarily confined by constitutional texts.[7]
This power to appoint the Prime Minister had never before been exercised following a general election with a hung parliament, and therefore presented challenges for the monarchy and the constitutional system as well as for the politicians. How should the matter be handled?
The Agong moved quickly to orchestrate the process of constructing a majority, requiring party leaders to report to him by 2pm on 21 November with their candidate for Prime Minister and evidence of a majority in terms of statutory declarations by MPs expressing support for the candidate of their preference. This process of gathering statutory declarations has since 2018 become the usual method of ascertaining majority support, rather than a parliamentary vote, or just relying on consultation with leading politicians, as would be usual in most parliamentary systems. This clearly indicated a more proactive role by the head of state than would generally be seen in parliamentary democracies. Such a proactive role had also been apparent on previous occasions, notably the appointment of new Prime Ministers in March 2020 and August 2021, when the Agong went so far as to interview all sitting MPs to ascertain their allegiance.[8]
Over the days following the election there was naturally a ferment of political speculation as to who might be able to forge a majority out of an ambiguous election result. The question was which two of the three largest coalitions, together with which other parties or coalitions, would be able to share the government, based on control between them of 112 or more seats.
Given a stated reluctance of PN to work with PH, the 30 BN MPs were in the limelight, but they were split on the question of which side to join, requesting from the King an extension of time in order to resolve their internal issues. A 24-hour extension was granted.
The media continued to be agog with excitement, with numerous reports of negotiations and disagreements, rumours, pieces of fake news, and opinions and advice as to the best way forward, not to mention the constitutional issues posed. The Agong played an active role in encouraging, cajoling even, the leaders to find a way of constructing a government with a majority. At one point he appeared to encourage PN and PH to form a unity government – a suggestion Muhyiddin seems to have rejected. The BN then announced it would go into opposition. In the event, however, with encouragement from the Agong, the BN threw its weight behind Anwar. In spite of Muhyiddin’s spurious claim (as it turned out) to have 115 statutory declarations of support, it was clear that Anwar had a slight edge, given that his 82 seats with 30 from the BN gave him exactly 112. As normally happens in Malaysian politics, once the outcome became clear, various smaller parties lent their support opportunistically to the candidate in prime position. Anwar was sworn in at 5pm on 24 November, and within a few hours was able to describe his coalition as a ‘unity government’, embracing not just his old enemy, the BN, but also the two coalitions from Sabah and Sarawak, bringing another 29 seats.
This outcome represented a huge vindication for Anwar, who had spent 24 years attempting to become Prime Minister, 11 of those in jail on sodomy and corruption charges. He was prevented by the BN and later the PH leadership under Mahathir from taking power despite strong performances by his party in the 2008 and 2013 elections, and an apparent promise by Mahathir to give way to him a short time after the 2018 election. He had also famously been beaten by the police chief, parading a black eye in court in 1998. At 75, he was finally able to assume the post for which he fought for so long under the banner of ‘reformasi’ (reform), in spite of being written off many times.
The more important issue, now that the dust of political conflict has settled, is what to make of these turbulent events. Do they represent a sea-change, a potential victory of reform over entrenched conservatism, an opportunity for democratic enhancement to replace the relative chaos of the last four years?
While many see Anwar’s appointment as a big turning point, it might be well to be cautious in one’s expectations. As it turns out, Anwar has not just a majority but a large one, possibly big enough for government-sponsored constitutional amendments to be passed, for which a two-thirds majority is required in both houses of parliament.[9] However, the coalition Anwar leads relies heavily on those who in essence lost the election, the BN, who represent Malay ethnic dominance, and will be opposed to any move towards a more multicultural policy. The likelihood is that reform will be pursued, but it will have to be pursued in a way that keeps together an uneasy alliance of parties with deeply differing objectives. The balancing act that is required is formidably difficult, even for one of Anwar’s long and battle-scarred experience.
The change is nonetheless significant in a number of respects. It may be seen in retrospect as an occasion in which Malaysia moved an important step forward by rejecting political corruption, and in attempting to get beyond the fragmentation of the last few years. Much will depend on how Anwar deals with politicians currently faced with many charges of corruption. If reform is to prove a reality and not an illusion it will require the utmost political skill on Anwar’s part, and patience on the part of those who consider they have already waited for too long for reform, or are concerned as to the ability of the new unity government to embrace real change without falling foul of the schismatic politics of recent years.
It is a significant outcome also because Malaysia has avoided a situation that would have occurred if a PN-BN coalition had taken power – namely, a Malay-heavy government with a strong and resurgent Islamic party demanding more Islamisation. Indeed, the Islamic party PAS (part of the PN) increased its representation from 18 to 44 seats, outperforming all of its rivals for the Malay/ Muslim vote. This first election held under the regime of an anti-party-hopping law can also be gauged as a success, and that is significant for political development.
One interesting issue debated during the few days following the election was what conventions govern the hung parliament situation. Strong opinions were voiced to the effect that the party with the largest number of seats should be given the first chance to form a government. In fact, although the ultimate factual outcome (Anwar’s victory) may be seen as reflecting such a convention, there is no evidence that it exists.[10] The only relevant convention is the ‘confidence of a majority’ rule, embodied in Malaysia by virtue of Article 43(2)(b), quoted above. In fact, the notion of ‘first attempt’ seems even perhaps irrelevant, given the proactive approach of the Agong himself in constructing a government with a majority.
Ultimately the real importance of these elections may well prove to be that Malaysia moved a step forward democratically and constitutionally. The potential instability of a hung parliament was avoided, at least for now. A transition of power was accomplished without violence, in compliance with the constitution, and with a degree of smoothness and certainty of purpose. Accordingly, we may now be able to claim that Malaysia, in a world of democratic backsliding and abusive constitutionalism, has emerged as a genuine constitutional democracy.
Suggested citation: Andrew Harding, The Malaysian General Election of 19 November 2022 and the Problem of the Hung Parliament, Int’l J. Const. L. Blog, Dec. 14, 2022, at: http://www.iconnectblog.com/2022/12/the-malaysian-general-election-of-19-november-2022-and-the-problem-of-the-hung-parliament/
[1] Dian A.H. Shah and Andrew Harding, Constitutional Quantum Mechanics and a Change of Government in Malaysia, Int’l J. Const. L. Blog (Apr. 8, 2020), http://www.iconnectblog.com/2020/04/constitutional-quantum-mechanics-and-a-change-of-government-in-malaysia/; Andrew Harding, Acting (or Not Acting) on (Lawful or Unlawful) Advice in Malaysia: From Windsor to Kuantan and Back Again, Int’l J. Const. L. Blog (Nov. 20, 2020), http://www.iconnectblog.com/2020/11/ acting-or-not-acting-on-lawful-or-unlawful-advice-in-malaysia-from-windsor-to-kuantan-andback-again/.
[2] T Wright and B Hope, Billion Dollar Whale (New York, Hachette Books, 2018).
[3] ‘Malaysia’s ex–PM Najib sent to prison as final 1MDB appeal lost’, The Guardian, 23 August 2022.
[4] Shah and Harding, supra, n1 (April 2020).
[5] Constitution (Amendment) act 2019; Constitution (Amendment) (No 3) Act 2022.
[6] ‘Malaysia: Full election results’, Straits Times, 19 November 2022.
[7] AJ Harding, ‘“Nazrinian” monarchy in Malaysia: The resilience and revival of a traditional institution’ in AJ Harding and Dian AH Shah (eds), Law and Society in Malaysia (Abingdon, Routledge, 2017).
[8] Harding and Shah, supra n1 (April 2020).
[9] Federal Constitution of Malaysia, Article 159.
[10] A Twomey, The Veiled Sceptre: Reserved Powers of Heads of State in Westminster Systems (Cambridge, Cambridge University Press), 183ff.
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