Who Gets the First Right to Form the Government. A Way Forward

Malaysia Today

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 a Prime Minister.

What is the problem?

The problem arises because Barisan Nasional with its 30 candidates is clearly divided. As a political party, its Supreme Council has voted to stay out of government and its members of parliament have indicated that they intend to comply with that directive.

Secondly, the President of the party has openly lied to the Palace. This has been made clear where the leaders of its component parties have unequivocally stated that the President of Barisan Nasional has taken a position inconsistent with the decision of its Supreme Council. The Supreme Council has said that they intend not to work with either Pakatan Harapan or Perikatan Nasional. The individual members have agreed to this position. This means that the 30 members from Barisan Nasional 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 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 United Kingdom, 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 for example:- Guidance on Hung Parliaments from the United Kingdom Parliament. https://www.parliament.uk/about/how/elections-and-voting/general/hung-parliament/)

This is because the United Kingdom is primarily a two-party system (Labour and Conservative) with several smaller parties (Unionist Democratic Party / Liberal Democrats). Malaysia on the other hand is a made of several coalitions of political parties (Barisan – UMNO /MCA / MIC or Perikatan – Bersatu / PAS or Harapan – PKR / DAP / Amanah). These coalition parties have previously and usually form further coalitions with smaller parties. 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 form the government 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 United Kingdom is not consistent with the practice in Malaysia since 2018. In the United Kingdom 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 members of Parliament to provide signed statutory declarations to determine their intent including conducting interviews with the individual members of the House.

What is the test to be applied?

In Malaysia there is a written constitution. The requirement is for the candidate to convince the YDPA 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 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 United Kingdom.

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 members through statutory declarations and interview. The Malaysian convention is, on the other hand, consistent with the requirement of requirements 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 that he is most likely to have the support of the largest number of members of the house the first right to the form the government and to let that candidate attempt 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 Tan Sri Muhyiddin Yassin (“TSMY”) should be given the first opportunity to form the government and not Dato Seri Anwar Ibrahim (“DSAI”). This is because he has the support of at least 106 members of the House.

TSMY has the support of a total of 105 members of the House. Consisting of 73 from Perikatan Nasional, 23 from GPS, 6 from GRS, 2 independents and 1 from KDM.

DSAI has the support of a total of 86 seats. Consisting of 81 from Pakatan Harapan, 1 from MUDA, 3 from Warisan and 1 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 TSMY as he commands the support of the most number of members of Parliament.