When Malaysians voted on November 19, we assumed that by midnight, we would have a new government. Never did we expect to face a hung parliament until this piece was published, and there is still uncertainty about what kind of government we are establishing – is it unity or is it a mixed government?
Let’s take a look at Malaysian politics to better grasp this predicament.
The Dewan Rakyat is Malaysia’s House of Representatives. There are 222 seats available. A simple majority would need 112 MPs.
At the end of the 15th General Elections, there were only four major coalitions with a substantial number of MPs.
- Pakatan Harapan (PH) and its allies had 82 MPs.
- Perikatan Nasional (PN) had 73 (this includes 22 seats contested under the PAS logo).
- Barisan Nasional (BN) had 30 MPs.
- The East Malaysian parties of GPS and GRS together (Borneo Block) have 29 MPs.
Pakatan Harapan, led by Anwar Ibrahim, with 82 MPs, is short of 30 MPs, which will help him form the government.
The leadership of BN (with 30 MPs) at first indicated that it will not unite with any other party to form a government. But on 24 November, UMNO, who is the dominant party in BN, issued a statement saying they won’t work with PN and are not open to a unity government – they had ‘left it to the King to decide.
Of course, PH cannot attain the majority number of 112 without a ‘supply agreement’ with either BN, GPS, or GRS. If this happens they need to be transparent and the stakeholder needs to be notified immediately.
What does the Constitution say about a hung parliament?
It is silent on how a PM is to be appointed when there is a hung Parliament. Where a written constitution is silent, one must consider if the law provides an alternative legal mechanism.
In the Westminster system, where the root of our constitution comes from, when the number of MPs in the highest bloc falls below the required majority, constitutional conventions come into play.
Constitutional conventions are unwritten rules, established by long practice. These rules guide the conduct of politicians and the monarch. I believe conventions are a ‘positive political morality’ which ensures that the electorate’s will is respected.
In the Commonwealth, most government functions are guided more by convention rather than written rule. Nevertheless, legal conventions have long been accepted. They have withstood decades of consistent practice.
The Main Question is: are UK conventions accepted in Malaysia?
Malaysia is a member of the British Commonwealth. We, therefore, follow the UK’s ‘bicameral’ system. In addition to that, several leading cases have ruled that British constitutional conventions are accepted and applied all over the Commonwealth. For example in the case of Dato Zamri Abdul Kadir v. Dato IR Nizar Jamaluddin  5 CLJ 265, the Court of Appeal accepted the existence of conventions ‘derived from English conventional practice’.
Ironically, constitutional convention, which is supported by many years of history, and consistent practice and custom, is one requiring the King to invite the leader of the party (or coalition) with the largest block of MPs – despite it falling below the simple majority – to form a government, pending the convening of Parliament.
For example, the United Kingdom’s House of Commons has 650 seats. A bare majority requires 326 MPs. Since the 20th century, the UK itself has had several hung parliaments and minority governments. After the 10 May 2010 UK elections, there was a hung parliament. The Conservative Party emerged as a major bloc with 306 seats. Labour trailed with 258 seats. The Conservatives were short of 20 MPs. Within 24 hours, the then monarch, Queen Elizabeth II, acting under an established convention, invited David Cameron, former leader of the Conservatives, to form a government. The Queen did not descend into the fray to negotiate with – or to offer advice to – the political parties.
India too has had its fair share of hung parliaments. The House of Representatives, the Lok Sabha, has a total of 545 seats. A simple majority required 273 MPs. From 1977 to 2009, on eight occasions, no single party had a clear majority. After the 7 May 1996 general election, the BJP, which is the largest bloc of MPs, could muster only 161 seats, short of 112 seats. Yet on 15 May 1996, President Shankar Dayal Sharma then invited BJP’s leader, Vajpayee to form a government. The President gave Vajpayee until 31 May to form a government or resign. After 13 days in office, Vajpayee failed to muster a governing majority. He resigned. He was succeeded by H. D. Dewe Gowda.
Bringing this back to Malaysia, basically what the King did by inviting the leader of Pakatan Harapan to form a government is the right move and must be respected. Then, when Parliament convenes, the Prime Minister will know whether his government can survive the full onslaught of the opposition.
For me, the appointment of the Prime Minister is a numerical issue. Only when the numerical issue falls below the required majority, is the King required, by convention, to call upon the leader of the highest bloc to form a government.
Bear in mind that without 112 MPs in Parliament, it would be impossible to pass laws or to have the budget approved. If Parliament does not approve a government’s budget, then, by convention, that government must resign – immediately.
Lastly, I would like to thank those who voted for the anti-hopping laws. These anti-hopping laws prevented what would have been a more chaotic situation in Malaysia. Can’t imagine if the MPs keep hopping from one party to another in the last 5 days.
That said, I believe, with or without the anti-hopping law, there are recognised constitutional conventions that can guide the monarch on how His Majesty should appoint the Prime Minister. Therefore, the anti-party hopping laws, although helpful, are not essential for the appointment of a Prime Minister.
I hope you found this explanation to be of some use. But I will leave you with this: Stop politicking and start building Malaysia back!