LETTER | Who gets the first right to form govt - a way forward

LETTER | Malaysian political parties are at an impasse. The leadership of the various political parties are unable to come to an agreement amongst themselves to nominate a candidate as prime minister. What is the problem?

The problem arises because BN, with its 30 members of Parliament, is clearly divided. As a political coalition, its supreme council has voted to stay out of the government and its MPs have indicated that they intend to comply with that directive.

Secondly, the chairperson of the coalition, Ahmad Zahid Hamidi, has openly lied to the Palace. This was made clear when the leaders of its component parties unequivocally stated that Zahid has taken a position inconsistent with the decision of its supreme council.

The supreme council had said that they intend to not work with either Pakatan Harapan or Perikatan Nasional (PN). The individual MPs have agreed to this position.

This means that the 30 MPs from BN cannot be included in any count for the 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 (UK) parliamentary convention that suggests that 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 the application of this convention.

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. (See Guidance on Hung Parliaments from the United Kingdom Parliament)

This is because the 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 comprising Umno/MCA/MIC/PBRS, or PN (Bersatu/PAS/Gerakan), or Harapan (PKR/DAP/Amanah/Upko). These coalition parties have previously formed further coalitions with smaller parties.

As things stand, it would be pointless to ask the incumbent prime minister to form the government because it is not likely that he will be able to do so as his party only has 30 seats in Parliament. There is, therefore, no chance that he could form the government.

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 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 signed statutory declarations to determine their intent, including conducting interviews with the individual MPs.

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 the 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 the House”. It does not envisage an assumption that 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 an 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 MPs through statutory declarations and interviews.

The Malaysian convention is, on the other hand, consistent with the requirement of the Federal Constitution to determine who is “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 that he is most likely to have the support of the largest number of members of the house the first right to form the government and to let that candidate attempt to secure the support of the majority of the members of the House.

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 PN chairperson Muhyiddin Yassin should be given the first opportunity to form the government and not Anwar Ibrahim. This is because he has the support of at least 105 members of the House, comprising 73 from PN, 23 from GPS, six from GRS, two independents, and one from KDM.

Anwar has the support of a total of 86 seats, consisting of 81 from Harapan, one from Muda, three from Warisan, and one from PBM.

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 as he commands the support of the most number of MPs.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.