What next in the Malaysian Game of Thrones?

Malaysia is still on tenterhooks. The governing coalition has been destroyed by betrayal. Can a coalition government be formed? If Yes, will it survive? If No, will the nation be forced into sudden polls? Fear and uncertainty grip the nation.

What next in the Malaysian Game of Thrones?
Malaysia is still on tenterhooks as the country’s political drama unfolds.

In a historic move in May 2018, Malaysians had ditched the long-ruling Barisan Nasional, tarnished by allegations of world-class kleptocracy, and voted in Pakatan Harapan.

But the new ruling coalition has fallen victim to betrayal and desertion that began spectacularly on Feb 21 and continues to grip the nation with new twists and turns, day by day.

The Prime Minister Dr Mahathir Mohamad resigned on February 24th. At his request the King has re-appointed him as an ‘interim’ PM. Mahathir thus lost all executive power. He was only left with the duty to act as Caretaker PM.

In an unprecedented move, the King began personally interviewing each Member of Parliament. This was to ascertain the stand of each MP.

Malaysians are assailed by many questions:

(1).  Can a coalition government be formed?

(2).  Will it survive till the next election?

(3).  Or will Malaysia be forced into a sudden and expensive snap poll?

(4).  All eyes are on the King. What will he do? What can he do?

The Night of Long Knives

A coalition is only as good as the spine that holds it up – mutual trust and good faith.

Some weeks before February, there had been sibilant whispers of a threatened exodus of MPs.

The ruling coalition, and its leader, were dismissive.

On the weekend of the 21st February, a dozen MPs deserted the coalition.

The move, recognised in hindsight as well-orchestrated, achieved its desired objective: the coalition government fell.

It continues to flounder in the deeps.

What Mahathir had to do with the current national disaster is now the subject of a ruinous national debate.

The people are eager to investigate claims that the treachery on the Night of Long Knives was but one part of a huge iceberg –  one that hints at a Grander, Malevolent Plot.

It was a scheme that had been weeks in meticulous planning.

It was executed with substantial precision.

What are the legal and political consequences of all this?

Constitutional Dilemma

When Dr Mahathir resigned as Prime Minister, he had a full Cabinet behind him. But he did not advise the King to dissolve Parliament.

That has serious legal consequences.

Abandonment and Stalemate

As a result of the breakup, the 222-member Parliament now exists in three blocks of MPs.

The fault lines shift every hour.

As of today, at least 92 MPs from multi-ethnic backgrounds stand with Anwar Ibrahim, as the prime minister-in-waiting for the longest period in history.

The Anwar faction is still 20 MPs short of a simple majority of 112.

Anwar’s ‘Coalition of Hope’ is composed of parties of different ethnic groups.

In the last two years, this Coalition of Hope, which formed the heart of the government, began as a blathering babe.

But it has steadily gained ground, experience and, importantly, credence.

But for the betrayal, Dr Mahathir had led it with decent efficiency.

In the second block is Mahathir with 62 MPs on his side.

He wishes to form a ‘Unity Government’ – one in which, apparently, he will handpick, and over which, it is expected – Mahathir being Mahtir – he will exert total control.

The third is a block of 68 MPs.

They belong to the old regime that was overwhelmingly rejected in the 2018 election after six decades in power.

Dr Mahathir and Anwar, it is expected, would hesitate to work with that group for fear of incurring the people’s wrath.

That leaves only one choice, going forward: both Anwar and Mahathir need to work together.

Constitutional crisis

The country is now in the grips of a constitutional crisis the likes of which it has never seen in its 63-year-old history.

Several Scenarios emerge

Parliament is not in session.

The third session of the 14th Parliament commences on March 9 and ends on April 16, 2020.

Mahathir’s attempt to bring it forward failed dramatically. The Speaker of Parliament declined Mahathir’s invitation to steer between Charybdis and Scylla. The King endorsed the Speaker’s decision.

The first part of the Third Parliamentary Session will last for 24 days, fateful days

Those 24 days will play a crucial role in the constitutional history of the nation.

We rehearse possible scenarios here for you.

Scenario-1
Between now and March 9, several things can happen.

Any one of the three blocks may form a coalition.  All that a coalition needs is a simple majority of 112 MPs.

Once the numbers add up, the new coalition’s leader will approach the King.

He will advise the monarch that he commands the confidence of the majority of the members of the House of Representatives (called Dewan Rakyat): [Article 43(2)(a) Federal Constitution].1Article 43(2)(a) reads ‘The Cabinet shall be appointed as follows, that is to say: (a) the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House; and … but if an appointment is made while Parliament is dissolved a person who was a member of the last House of Representatives may be appointed but shall not continue to hold office after the beginning of the next session of Parliament unless, if he has been appointed Prime Minister, he is a member of the new House of Representatives, and in any other case he is a member either of that House or of the Senate.’

If he satisfies the King that his claim is ‘likely’ – and unless that leader is Mahathir himself – the King will call for the resignation of the interim PM. The King will then appoint the coalition leader as the new prime minister.

The new Prime Minister will advise the King to form a new Cabinet from his team of supporters.

Scenario-2

A newly minted coalition may be formed but must survive, at least till March 9, when Parliament reconvenes.

If its members fall prey to the seduction of another would-be coalition, this coalition too will fail.

And the nation will find itself back at square one.

Scenario-3

After parliament reconvenes on March 9, Members of the Opposition, sensing that they have successfully caused desertions, can move for a Vote of No Confidence against the incumbent prime minister and his Coalition.

If they succeed, the incumbent PM, along with his Cabinet, must resign.

If that happens, and if the Opposition parties are unable to cobble together a new coalition, then the Second Coalition Leader may, in his turn, approach the King.

He will then go through the same process as Scenario-1.

Scenario-4

If the Coalition’s Prime Minister survives the Vote of No Confidence, his Coalition Government will either carry on until the next election or the coalition may have to face the consequences of Scenario-5.

Scenario-5

Under this scenario, one of several things may happen.

Suppose the incumbent prime minister is incapacitated, resigns or dies, the Coalition has to show that it can maintain its numbers above 112 MPs.

The Coalition must also propose to the King the name of a leader who can demonstrate to the King that he ‘commands the confidence of the majority of the MPs.’

If not, the Coalition will collapse.

It will either be challenged by an Opposition Coalition, or it will have to confront a Vote of No Confidence in Parliament.

If none of these debilitating events occur, the Coalition will still face the danger of desertions.

That will prejudice its ability to maintain its majority.

If so, it starts all over again. The consequences of the foregoing scenario will play out.

Scenario-6

By convention, it is the incumbent prime minister who chooses the timing of the election.

He has to ‘advise’ the King of it.

Constitutional Hurdle

But there is a constitutional hurdle that the PM has to pass.

Generally, the King has no choice but to heed the advice of the Prime Minister who has the authority of the Cabinet: [Article 40(1) read with (1A) of the Federal Constitution].2Article 40(1) reads ‘In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.’    Article 40(1A) reads ‘In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di- Pertuan Agong shall accept and act in accordance with such advice.’

There is a prevalent (but erroneous) view that the King must comply with ‘every advice’ of the prime minister. This is not entirely accurate.

There are two preconditions that must exist before the King has to comply with the PM’s advice.  The first is that it is only a Prime Minister ‘acting under the general authority of the Cabinet’ who may so ‘advise’ the King: [Article 40(1)].

Under the ‘interim’ Prime Minister Mahathir, there is no Cabinet. He does not have the authority of any Cabinet behind him.

As such, Mahathir is in no position to advise the King to dissolve Parliament.

The second precondition is in Article 40(2)(b).

Where there has been ‘a request’ for ‘the dissolution of Parliament’, the Constitution allows the King to ‘act in his discretion.’

The Constitution does not say who has to make this request.

This seems to run counter to the rigour of Article 40, which demands the King’s complete compliance: [Art 40 (1) and (1A)].

That is easily explained: a ‘request’ from the PM – or anyone else – is not the same thing as ‘advice’. These two words mean different things.

That the King may act against such a ‘request’ is reinforced in Article 43(4).3Article 43(4) reads ‘If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.’

If the Prime Minister no longer commands the confidence of the majority of the MPs, he may ‘request’ the King to dissolve Parliament.

If the King agrees, then Parliament can be dissolved.

If the King refuses, Article 43(4) requires the PM to tender his resignation and that of his Cabinet.

The Outgoing Prime Minister will take over as a Caretaker Prime Minister, pending the formation of a new coalition by an opposing group.

Only when the King is sure that any other coalition government cannot be formed that he may dissolve Parliament.

This discretion is confirmed in Article 55(2).4Article 55(2) reads ‘The Yang di-Pertuan Agong may prorogue or dissolve Parliament.’

It states that the King ‘may dissolve Parliament.’

If a word in an ordinary Act of parliaments refers to the power a person has, (e.g. the power of a judge to dismiss a case) the word ‘may’, points to a ‘discretion’.

‘Discretion’ means, the person who has the power to make a decision, can either choose to do it, refuse to do it – or importantly, choose to wait it out.

In interpreting a Constitution, courts will not be tied down the literal meaning of words.

They adopt a more ‘flexible’ approach: this is because the Constitution is said to be a ‘living document’ – something ‘organic’.

Judges tend to look for the spirit of the law; they will not be tied down to over-legalistic arguments that are used for normal statutes of parliament.

So, if we take these points into consideration, the constitutional power of the King is without limitation.

Constitutional dilemma

The King is in a dilemma.  He hears conflicting legal views.

One group says the King cannot dissolve Parliament ‘unless he is directly advised by the Prime Minister.’

That may not be entirely accurate.

We saw how an interim Prime Minister is not ‘acting under the general authority of the Cabinet,’ under Article 40(1).

Mahathir was appointed as an ‘interim’ Prime Minister.

He has yet to exercise the right to form a Cabinet.

But he cannot – so far – form a Cabinet. Mahathir does not have a minimum of 112 MPs on his side.

The second view is that, notwithstanding the absence of any ruling coalition, or a Cabinet, the King may still go ahead and dissolve Parliament.

Article 40(2)(b) only requires someone to ‘request for the dissolution of Parliament.’

Some lawyers argue that this ‘request’ must come from a Prime Minister. This view is also consistent with convention.

As I said before, the Constitution does not point out who has to make this request: it is silent on it.

But consider this: if, for some reason, the current PM is incapacitated.

Suppose there is no Cabinet – as it is now.

Suppose no ruling coalition has been formed – as it has been for the past week.

In those circumstances, the King, it seems to me, can exercise his powers under Article 55(2).

He can call for an election. He does not have to ask anyone else.

What next?
The populace, which in 2018, literally moved mountains to oust a 61-year-old kleptocratic regime, is in a state of dismay.

Quiet anger simmers.

Until such time as the opposing camps form a viable – and, importantly, a just government -and prevent amphibious migrations, the nation will not be at rest.

The constant, and strident, often hysterical barrage of social media messages that the one, or the other group, has achieved an overall majority, is only likely to anger the people.

Even if such a majority could be achieved, in a matter of hours, all eyes will be on their MPs.

The people will study who falls prey to the national illness of desertions. It seems to be far more dangerous than the Covid 19 virus.

Eventually, when general elections are called, the populace will vote with its memory.

And that date is not too far away.

 

 

 

 

[The author expresses his gratitude to Ms. KN Geetha, Mr. JD Prabhkirat Singh, Mr. GS Saran, Miss KP Kasturi, Ms. Kamatchy Sappani and Ms Susila Sithamparam for their assistance.]

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