Constitutional experts explain what’s next as Malaysia awaits new government


Al-Sultan Abdullah meets the media at Istana Negara on Nov 21, 2022. — Malay Mail photo

KUALA LUMPUR (Nov 23): For several minutes yesterday, Malaysians nearly thought that their three-day wait for a new government and prime minister after a divisive 15th general election (GE15) would be over.

Alas, the wait continues.

After both Pakatan Harapan (PH) chairman Datuk Seri Anwar Ibrahim and his Perikatan Nasional (PN) counterpart Tan Sri Muhyiddin Yassin were summoned by the Yang di-Pertuan Agong, it remains that neither has proved to have commanded a majority in the Dewan Rakyat.

The Agong would today meet with 30 Barisan Nasional (BN) MPs individually as the deadlock remains.

Among the rumours already spreading were that Anwar would be appointed an “interim prime minister” as he gathers his majority numbers, or that either Muhyiddin or him would lead a minority government since neither could gather the support of over 112 MPs out of the 221 (Padang Serai election has been postponed), or that both of them would join hands for a unity government.

This was swiftly refuted by Anwar, who told the press that no decision has been made yet and that a minority government was never in question. Similarly, Muhyiddin insisted that a unity government is off the table since PN would never work together with PH.

To clarify what exactly these concepts mean, Malay Mail spoke with several lawyers focusing on the Constitution:

There is no such thing as an ‘interim’ PM

“An interim PM is some fictional beast the media or politicians have concocted but has no basis in law. There is no provision for a temporary prime minister,” lawyer Fahri Azzat told Malay Mail.

Similarly, lawyer New Sin Yew explained that according to the law, there is only one type of PM, and that is the PM as appointed under Article 43(2)(a) of the Federal Constitution.

“The ‘interim prime minister’ term is really a colloquial term that I suppose gained some popularity when Tun Dr Mahathir Mohamad was once again appointed as prime minister after he resigned from the post,” he said.

Article 43(2)(a) states that “The Agong shall first appoint as 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”.

But what about caretaker PM?

Magesan R Ayaloo, a senior lecturer in University of Malaya’s Faculty of Law, stressed that just like “interim”, the Constitution does not specifically mention a “caretaker” PM.

“What is called a caretaker prime minister is just a person acting in the capacity of a prime minister, he is not, technically speaking, a prime minister,” said Magesan.

He said that allowing the prime minister to take up the mantle of “caretaker” prime minister once Parliament was dissolved was a “convention” — and was not written into the Constitution.

He said there were many other conventions in relation to the Constitution that have not been challenged until lately, as the Barisan Nasional government had ruled with solid majority support for over 60 years.

Since the new government is still not formed, Datuk Seri Ismail Sabri Yaakob is technically a “caretaker PM”.

Yesterday, Ismail Sabri announced that the “caretaker government” under his leadership and the “caretaker Cabinet” will continue to function.

He added that a special Parliament session would be held to table a budget so as to pay the salary of civil servants before December 31, if the country still continues without a new government by then.

Despite not being a PM since the Parliament was dissolved, Ismail Sabri was however still mentioned as the PM by some in the media, including state news agency Bernama.

Must a PM hold a simple majority in the Dewan Rakyat?

In GE15, no coalition managed to win a simple majority. PH won 82 seats in total to PN’s 73.

However, Fahri explained that the Constitution does not specify that the majority must be a simple majority — meaning more than half of the MPs.

A government which is helmed by a party that has the most seats compared to other parties, but still has less than half of the total seats — such as in the case of Pakatan Harapan now — would instead be called a “minority government”.

“Although it is definitely possible to have a minority government, the fact that Malaysians have never had a minority government before, the proposition of this system of government doesn’t surface,” said Magesan.

“However, many other countries have adopted a minority government such as the United Kingdom, Italy and France,” he added.

Anwar speaks during a press conference outside the palace gates after meeting with the Agong at Istana Negara on Nov 22, 2022. — Malay Mail photo

Explaining the pros and cons of a minority government, Fahri said that a minority government would face difficulty when it tries to create or change laws, as it may often be defeated in Parliament when trying to do so.

“They have to expend a lot of energy, effort and expense to persuade the ‘opposition’ parties to support their policies.

“The good thing about minority governments is that there is more negotiation, discussion and cooperation between a minority government and those parties not in government,” he said.

BN had consistently won over two-thirds of the federal seats, giving it massive control over the laws of the country, up until 2008. It was then its biggest loss, until it was defeated for the first time in six decades ten years later.

When will we see a new government?

As for the appointment of a new prime minister, Magesan said there are no clear guidelines on how matters proceed.

He pointed out that according to the wording in the Federal Constitution, the Agong only has to appoint whoever he thinks is “likely” to command the support of the majority of MPs.

Providing a suggestion, he said: “The Agong could appoint a new prime minister of a minority government, based on who had won the most seats, and then allow the prime minister to test his support in Parliament”.

Fahri suggested the same as Magesan, but recommended that the Agong first seek legal advice from the attorney general or the Federal Court on whether a minority government is truly constitutional — due to the ambiguity of the Constitution on this matter.

The lawyers also agreed that there was no time limit on how long the Agong could take to make his decision.

For now, New said BN’s Ismail Sabri will remain as “caretaker” or acting prime minister.

Malaysia had already gone through a similar impasse in 2020, when the Agong made the unprecedented decision to interview all MPs one by one to ascertain who commands the majority of the Dewan Rakyat to become the next prime minister.

Muhyiddin was named prime minister then, but his legitimacy was never proven by a vote of confidence in the Parliament. He would resign just over a year later following a prolonged and fractious power struggle between PN and then-ally Umno, leading to Ismail Sabri’s ascent.

Prior to that, Dr Mahathir was in his second term as PM following PH’s historic win in 2018, but he resigned following defections by several MPs from his own Parti Pribumi Bersatu Malaysia and ally PKR. — Malay Mail