Who gets first right to form govt – a way forward


POLITICAL parties are at an impasse. 

What is the problem? 

The problem arises because Barisan Nasional (BN), with its 30 lawmakers, is clearly divided. As a coalition, its supreme council has voted to stay out of government and its MPs have indicated they intend to comply with that directive. 

Secondly, the chairman of the coalition, Ahmad Zahid Hamidi, openly lied to the palace, with leaders claiming he took a stand inconsistent with that decision.

The council has said they do not intend to work with either Pakatan Harapan (PH) or Perikatan Nasional (PN). Individual MPs have agreed to this. 

This means that the 30 members from BN cannot be included in any count for majority support in the house. 

As a result no one party can form a simple majority. Are there any proposals to get around this problem? 

There have been several calls to allow one candidate to form the government and then to allow that candidate to attempt to build a coalition. 

This argument rests on a United Kingdom parliamentary convention that suggests the leader of the party with the most seats should be given the right to form the government. 

Should the convention apply in Malaysia? 

The convention should not be applied in Malaysia wholesale. There are serious difficulties with its application. 

First, in the UK, part of the convention in a hung parliament is that the incumbent prime minister is usually given the first opportunity to form the government.

This is because UK is primarily a two-party system (Labour and Conservative) with several smaller parties (Unionist Democratic Party/Liberal Democrats). 

Malaysia, on the other hand, has several coalitions of political parties (BN: Umno/MCA/MIC/Parti Bersatu Rakyat Sabah), or PN (Bersatu/PAS/Gerakan) or PH (PKR/DAP/Amanah/Upko).

The incumbent prime minister is not able to form the government because his coalition only has 30 seats in parliament. 

Second, the manner in which this convention is applied in the UK is not consistent with the practice in Malaysia since 2018. In the UK, it is assumed that all the members of the of two largest coalition parties will vote consistently and the invitation is extended to the leader of the party with the most seats, remembering that it is primarily a two-party system. 

This is not the convention in Malaysia. In times of doubt, the palace has asked individual MPs to provide statutory declarations to determine their intent, as well as interview them.

What is the test to be applied? 

In Malaysia there is a written constitution. The requirement is for the candidate to convince the Yang di-Pertuan Agong that he is someone who “is likely to command the confidence of the majority of the members of that house.” That is a specific test. 

This test cannot be met simply by selecting the party with the largest number of seats. There are two reasons for this.

First the test requires someone who is “likely to command the confidence of the majority of the members of that house”. It does not envisage an assumption the party with the largest number of seats is likely to command the majority of the members of the house. That is only applicable in a primarily two-party system like the UK. 

It is entirely possible in Malaysian coalition politics that one party (or coalition) may individually have the largest number of seats but that a coalition of smaller parties (with individually smaller number of seats) may collectively outnumber one party and have the majority. 

Second, simply selecting the party with the largest number of seats is inconsistent with the Malaysian convention of testing the will of the individual MP through statutory declarations and interviews. 

The Malaysian convention is, on the other hand, consistent with the requirement of the Federal Constitution to determine who would “likely to command the confidence of the majority of the members of that house”.

It must be remembered that the two principal contenders for the position themselves derive their numbers from a coalition of component parties. 

What is the way forward? 

The way forward is to give the candidate who can demonstrate he is most likely to have largest parliamentary support the first right to the form the government and to let that candidate attempt to secure that support.

That is a modification of the UK convention, which would be consistent with the Federal Constitution and the Malaysian convention. 

With this in mind, it is clear that Muhyiddin Yassin should be given the first opportunity to form the government, not Anwar Ibrahim. 

This is because he has the support of at least 105 MPs, comprising 73 from PN, Gabungan Parti Sarawak (23), Gabungan Rakyat Sabah (6), Independents (2) and Parti Kesejahteraan Demokratik Masyarakat (1). 

Anwar has the support of 86, consisting of 81 from PH, Muda (1), Warisan (3) and Parti Bangsa Malaysia (1).

In order to achieve the result of the test as to who is more likely to be able to command the majority of the members of the house, then the first opportunity should be given to Muhyiddin, who has the largest parliamentary support. – November 24, 2022.

* Jamari Mohtar is editor of Let’s Talk!, an e-newsletter on current affairs.

* 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.



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Comments


  • Your analysis is clearly wrong and non-factual. As an objective journalist/analyst, we need to face facts:

    First, PH had the highest number of parliamentary seats of 82 and the highest popular votes of 39.7% (5.4 million).

    Second, PN has already rejected outright the King's suggestion to form a unity government. This was decided by Muhyiddin without even consulting with his allies, namely GPS which is now leaving the decisions to the King and Abang Johari is facing backlash from his component parties in his support for a PAS alliance.

    Third, BN has made it clear, under the Supreme Council decision, to form a unity government with PH.

    Fourth, from the King's viewpoint (which i am inferring from Anwar Ibrahim's press statements), there is an urgent need to form a government that is reflective of the multi-ethnic, multi-faith composition of Malaysia. Thus, an ethno-centric and religious-centric coalition such as PN clearly does not fulfil that condition and would be a threat to the fabric of Malaysia. Not only that, the encroaching influence of hudud laws in the states would undermine Malaysia's economic and social vibrancy.

    Finally, whatever the outcomes, I do agree that the new unity government under PH/BN will have to address the expectations of the conservative Muslims. This requires smart dialogues, communication and education.

    https://malaysiawakes.blogspot.com/2022/11/malaysias-unprecedented-ge15-old.html

    Posted 3 days ago by Jeremiah Liang · Reply