THE consensus among watchers of the polls is that it will be a close outcome, after the ballots are counted and results announced this weekend: a finish too close to call.

However, 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 king 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 Westminster 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 sharing a similar system.

Perhaps the closest example would be the position in February 1974 when UK Prime Minister Ted Heath lost his majority in the 635-seat parliament.

The results were as follows: Labour (301), Conservative (297), Liberal (14), Others 23.

Ted Heath resigned as the Conservative prime minister although there were talks with the Liberal party to form a coalition.

Subsequently, Harold Wilson, as the leader of the largest party, was invited to form the government.

Labour was short of the 318-seat majority, but was invited to form a government as the party with the most seats.

Its margin over the Conservatives was just four 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-one-seat to form the majority, the head of state will appoint the leader of the party or coalition that has the highest number of seats.

This is simply because this person enjoys the mandate from the voters in the just concluded general elections and should be given the first opportunity to form a cabinet.

Then, when parliament convenes (typically a month or two after polling day), he or she has 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.

Applying that convention here would mean that among the three realistic candidates for the office of prime minister as president of their respective coalitions, namely – Ahmad Zahid Hamidi, Anwar Ibrahim and Muhyiddin Yassin – the person whose coalition wins the highest number of seats must be appointed prime minister, even if his coalition does not secure 112 seats, as soon as it is convenient.

In Malaysia, it would be on Sunday.

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 Saturday evening and early Sunday morning.

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, two or three 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 king, like other constitutional monarchs, cannot bring his personal preference into decision-making.

He 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, as millions of Malaysians would have just voted, the wishes of the majority must be respected by the palace; after all that is why we have a system of government by parliamentary democracy in the first place. – November 15, 2022.

* Statement by Tommy Thomas, former attorney-general.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.