John Stuart Mill’s seminal treatise Representative Government published in 1861 argues for an ideal form of government that is not obsessed with making laws, but instead suggests that parliaments and senates, as representative bodies of the people, are best suited to be places for public debates on the various opinions held by the general population that should and could translate in acceptably sound government policies where nobody is left behind.
In Mill’s own words, “parliaments and senates are required to indicate wants, to be an organ for popular demands, and a place of adverse discussion for all opinions relating to public matters, both great and small, and, along with this, to check by criticism, and eventually by withdrawing their support, those high public officers who really conduct public business, or who appoint those by whom it is conducted.”
The key operational word in most treatises relating to politics, law, government is people. Mill’s believed in a people-centric system of government given the right to vote, or not to vote. The first principle of an elected government is proportional representation system where everyone – man, woman and child – from every geographical location is accounted for and whose adult votes count in the grand total for selecting one representative to represent say about 30,000 people as in the congressional districts of the USA.
Assuming a legislature has 140 seats. Assuming, the elections tally evidences that Candidate A secured 60 seats, Candidate B secured 40 seats, and Candidate C secured 40 seats. In the first-past-the-post system, Candidate A is asked to form a government as he secured the majority with 60 seats. The fact that 80 seats were secured by other candidates tells a different story in the proportional representation system. Gerrymandering and malapportionments are not such a serious problem in the Malaysian electoral system.
Let’s put this in perspective following our GE15 election results. Pakatan Harapan (PH) won 82 parliamentary seats. Perikatan Nasional (PN) won 73, Barisan Nasional (BN) won 30, while Gabungan Parti Sarawak (GPS) gained 23 seats, Gabungan Rakyat Sabah (GRS) six seats, Warisan three seats and others gained eight seats. The magic number required to form a government is 112, meaning a simple majority. None of the three coalitions achieved this. Now what?
The Federal Constitution is dead silent on hung parliaments and the coming together of coalitions to form a government. The Federal Constitution, however, has a foolproof and ironclad mechanism to solve the impasse in Article 43(2)(a) which reveals a powerful mandate to the Yang di-Pertuan Agong.
Article 43(2)(a) says: The Cabinet shall be appointed as follows, that is to say:
The Yang di-Pertuan Agong shall first appoint a Perdana Menteri (Prime Minister) to preside over a 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 (emphasis added);
The Agong’s judgment is a royal prerogative, and a royal constitutional duty and obligation. He alone is authorised by the Federal Constitution – the supreme law of the land – to determine who will command the confidence of the majority in the Dewan Rakyat. He can deny any coalition that the Agong finds impractical or unwise.
The Agong, therefore, within the widest possible reading of Article 43(2)(a) may use his discretion – his judgment – to study the combinations of the coalitions that have agreed to form a government regardless of the first-past-the-post or proportional representation systems of electing and selecting a suitable prime minister.
Various scenarios emerge according to observers and political pundits: Muhyiddin caused the collapse of the PH government following the “Sheraton Move”. Therefore, the Agong could use his discretion – his judgment – in disregarding Tan Sri Muhyiddin Yassin for the top job. Besides, Muhyiddin is known to have uttered anti-Christian sentiments and remarks during his election campaigning that have angered the Christian communities of Malaysia.
Therefore, any coalition that Muhyiddin presents will inevitably showcase the extremist agendas of PAS which won 49 parliamentary seats while Muhyiddin’s Bersatu won 24 seats. PAS is known for its vitriolic feelings about non-Muslims. The Agong will most certainly take this into consideration given the latitude he is granted in Article 153 Federal Constitution concerning the “special position” of the Malays and natives of Sabah and Sarawak . . . and the legitimate interests of other communities.
Some legal scholars say that the “special position” is for productive, not acquisitive, opportunities. The Agong is very well aware of this truism, as are his advisors.
Datuk Seri Anwar Ibrahim, on the other hand, according to many, represents a vast cross-section of Malays, Chinese, Indians and others of mixed parentage. In other words, observers locally and overseas say that Anwar portrays a truly Malaysian concept without any religious or racial extremist views and policies.
Should Anwar’s 82 seats be combined with Barisan’s 30, he will have the magic number of 112 to satisfy the mandate of Article 153 as it is the responsibility of the Agong to safeguard the Malays, natives of Sabah, Sarawak, and the legitimate interests of other communities. Aided by Article 43(2)(a) the Agong is on terra firma in making a constitutionally proper decision to exercise his royal discretion in inviting Anwar and Barisan to form the government regardless of Westminster traditions and conventions that former AG Tommy Thomas constantly refers to. Our Malaysian federal Constitution suffices.
Using Article 43(2)(a) and Article 153 of the Federal Constitution, the Agong could very well request a PH-PN coalition government so that they will have the two-thirds majority in Parliament to make much-needed constitutional amendments. This appears to make good political sense urgently and earnestly required for making all the popularly right choices when Parliament is convened with a stable Cabinet.
The bee in the bonnet for Malaysians is this crucial question: Should the Agong accept PN with PAS in tow with its extremist agendas that has the real potential of upsetting the check and balance supplied by Article 153, or allow the PH-BN coalition with the court cluster in tow which is not an albatross around Anwar’s neck because the judiciary is able, capable and reliable to handle kleptocracy better than determining and adjudging religious extremism.
The Latin adage rex non potest peccare – the king can do no wrong – must have been in the minds of the Reid Commission when they crafted and drafted Article 43(2)(a) and Article 153 of the Federal Constitution.
Paul Collier observed that “elections determine who is in power, but they do not determine how power is used.” Malaysians generally believe that “we elect people who we know will know how to use power because if they abuse it, the abuser will pay for it as we have witnessed since 1957.” The maturing citizenry has a valid point.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
