‘No excuses for constitutional crisis this time around’
INTERVIEW | As Malaysia goes to the polls on May 9, the country may see one of the closest elections in the country’s history.

Malaysiakini posed several questions to leading constitutional lawyer Tommy Thomas on the democratic and constitutional processes involved in electing and forming a new government.

Following the dissolution of Parliament last month and the campaigning period taking place now, we have seen that the caretaker government under BN and also the Selangor and Penang governments under Pakatan Harapan are making promises and dishing out goods.

In your legal opinion, can this be done? And if the candidates are the ones giving out the goods, can the election results be challenged?

These are two separate and independent issues. First, caretaker governments are temporarily in charge until May 9, 2018, and possess very limited powers. They certainly cannot be deciding on policy matters like raising the minimum wage.

Secondly, “making promises and dishing out goods” constitute electoral offences under the law. Unfortunately, the courts have not decided in that manner with respect to similar blatant electioneering offences which occurred during past general elections.

Hence, the prospects of such legal challenges succeeding after the 14th general election do not seem rosy, based on the past track record of election judges.

We also saw a number of controversies during nomination day. PKR’s Batu incumbent Tian Chua’s nomination was rejected, and similarly, caretaker Negeri Sembilan menteri besar Mohamad Hassan won the Rantau state seat uncontested.

In your view, did the Election Commission, or returning officer, take the right moves in both cases as there are questions surrounding their rejection?

In my opinion, the returning officers acted wrongly in law in rejecting Tian Chua’s nomination and in the Rantau state seat.

The effect of such misinterpretation of law is terribly costly because it disenfranchises candidates, and is therefore undemocratic. The choice for voters is also diminished by the disqualification of candidates, and the election process marred thereby.

The May 9 elections may see a possible change in government. Can you run through what would happen in a power transition, from a constitutional perspective and according to the Westminster model which we have adopted?

We can expect the Yang di-Pertuan Agong and his palace advisers to be following the results of GE14 like the rest of Malaysia.

Once the results are declared that the Harapan coalition has won the elections by crossing the magic 112 mark, say, sometime on the night of May 9, the palace would have to invite caretaker prime minister Najib Abdul Razak for an audience with the Agong to tender his resignation.

This can take place as early as the morning of May 10. In such a case, Najib must tender his resignation to the Agong because he would have lost the mandate of the people.

At the same time, the palace would invite (Pakatan Harapan chairperson) Dr Mahathir (Mohamad) to have an audience with the monarch on the same morning, after Najib had left.

The Agong would then invite Mahathir to be the new prime minister and to form a new government. Mahathir would then be sworn in in a ceremony steeped in Malay tradition, which would be broadcast live on TV, as in the past.

The constitutional requirement under Article 43(2)(a) of the Federal Constitution is that the monarch has to invite the person who, in his judgement, commands the confidence of the majority of the Dewan Rakyat, for an audience on the morning after the polls.

As there are 222 members in the Dewan Rakyat, Mahathir must have the support of at least 112 Members of Parliament for the sovereign invitation to be made. Politicians and their supporters cannot simply turn up at the palace without such an invitation.

The transfer of power must be carried out seamlessly and smoothly by independent state agencies and civil servants.

These would include all the top civil servants at the federal level, the secretary to the government, all ministry secretary-generals, the police, the armed forces, and the palace administration. They are all meant to be neutral. They must respect the will of the people at the polls.

For example, if it is apparent that Harapan is winning, you would expect the police to have contingency plans to ferry Mahathir to the palace and provide him with protection because he would be the prime minister-in-waiting.

The same process is replicated at the state level with regards to the chief minister or menteri besar’s position. This is because all our state constitutions are written in nearly the same way as the Federal Constitution with regard to the appointment of the head of government by the Agong, sultan or governor.

Transfers of power have taken place in many states for decades, but a change at the federal level will be historic. They are all modelled on the Westminister system, which is a feature of most Commonwealth nations.

What will happen if no coalition has a majority of 112 seats?

Theoretically that can only occur if the newly-elected MPs for each coalition totals 111 in the 222-member House – the perils of an even number rather than an odd number! If that unlikely event occurs, one can be sure that some members will switch coalitions in a political environment where money politics thrives.

What if there is a hung parliament? The constitution says the Yang di-Pertuan Agong can appoint the prime minister who he thinks commands the confidence of the house.

In a hung parliament situation, can the Agong unilaterally appoint someone as prime minister to oversee the possible transfer of power or formation during this period to form a new government?

As incumbent and caretaker prime minister, Najib could remain temporarily in office, but it would be in a caretaker capacity after elections in a “hung parliament” scenario.

Over the next several days after the polls, both coalitions would try to strengthen their respective numbers in the Dewan Rakyat through crossovers and coalition building.

Throughout this period, the Agong should not participate, directly or indirectly, in this process. The monarch must let the politicians sort things out themselves so that His Majesty cannot be accused of taking sides. The palace must be seen to be above party politics.

At some point after all the political negotiations have concluded, either Najib or Mahathir, as leader of one of the coalitions may say, “I have the majority support of the House.” And then the Agong would say, “I need evidence to satisfy myself of the numbers.”

This evidence can be letters signed by the elected MPs, or the Agong can ask for these MPs to be presented to the palace for a face to face interview.

As a condition, the Agong can insist that the prime minister he appoints must convene Parliament to sit as soon as possible – within days – so that a confidence motion for the newly appointed prime minister can be voted on in the Dewan Rakyat.

If the vote fails, the Agong must appoint somebody else, and the confidence motion must be tested again in the House. This process can be repeated for some time.

And as a last resort, if none of these attempts work, a prime minister can recommend to the Agong that Parliament should be dissolved and fresh elections held.

The monarch has the discretion to refuse the prime minister’s recommendation, and to instruct the political parties to continue to try to reach a compromise. A second general election would be the last resort, so soon after GE14.

Do conditions of a hung parliament in leading democracies lead to chaos in public?

If the expression “hung parliament” is defined to include the example of difficulty in forming a government because no coalition or party had won sufficient seats in a general election to form a majority in Parliament, then it is a very common occurrence in mature democracies in Western Europe and India.

What’s important to remember is that in such a situation, life goes on normally. In the UK in 2010, during the five days of negotiation before the Tory-Liberal Democrat coalition government was formed, everything went on calmly and normally.

Hung parliaments are also a norm in countries like Italy where there is no government for weeks, and normalcy prevails. The most recent example is Germany, where it took months for Chancellor Angela Merkel to form a majority government after elections.

In fact, there are more examples where governments are formed post-election, rather than pre-election like in Malaysia. And if there is a hung parliament after GE14, what is needed is for the supporters of both coalitions to act in a patient manner, to behave maturely and peacefully. There should be no taunting, gloating and demonstrations.

At the same time, all state agencies must remain neutral and independent. The only people who should be negotiating at this stage would be the politicians. Such negotiations should also be secret and confidential. Only the outcome should be made public.

Thus, no chaos occurs in such democracies in such circumstances. Indeed, in countries like Italy it has become the way of life.

What can the political coalitions do or cannot do in a hung parliament situation before forming a government?

The coalitions’ objective would be to persuade smaller parties or individual MPs or independents to join their coalition in order to establish a majority government – in our case, securing more than 112 seats in the Dewan Rakyat. Those are the ends.

But means matter in mature democracies. Sadly, means have not mattered in Malaysia. Since Merdeka, whether at the federal or state levels, there have been numerous examples of politicians switching camps for monetary advantage.
The opprobrium attached to such despicable conduct, which most Malaysians regard as having occurred because of bribery, is shown in the use of the term “frogs” to describe them.

Malaysia has had a fair share of constitutional crises with the Stephen Kalong Ningkan case in 1966, the Sabah grab for power in 1985, and the Perak case in 2009. What can we learn from these cases, and could such situations arise come May 9?

Each occurred at a point in time in our history at the state level when our democracy was either still in its infancy stage or developing. 60 years after Merdeka and after the 14th general election, there are no excuses for their repeat.

I am confident that, having learned the painful lessons of each of those episodes, the voters at least will not tolerate a repetition of such events. Unfortunately, I am not so confident that politicians with vested interests and the deep state will not resort to such conduct when their backs are pinned to the wall.