A way forward to forming the govt

Malaysian political parties are at an impasse. The leadership of the various political parties are unable to come to an agreement among themselves to nominate a candidate for prime minister. 

The problem arises because Barisan Nasional (BN) with its 30 MPs is clearly divided. As a political coalition, its Supreme Council has voted to stay out of government and its MPs have indicated that they intend to comply with that directive. 

Secondly, the chairman of the coalition, Ahmad Zahid Hamidi, has openly lied to the Istana. This was made clear when the leaders of its component parties unequivocally stated that the chairman of BN had taken a position inconsistent with the decision of its Supreme Council. 

The Supreme Council has said that it does not intend to work with either Pakatan Harapan (PH) or Perikatan Nasional (PN). The individual MPs agreed to this position. 

This means that the 30 members from BN cannot be included in any count for the majority support in the House. 

As a result, no one party can form a simple majority.

There have been several calls to allow one candidate to form the government and then to allow that candidate to attempt to build a coalition. 

This argument rests on a UK parliamentary convention that suggests that the leader of the party with the most seats should be given the right to form the government. 

The convention should not be applied in Malaysia wholesale. There are serious difficulties with the application of this convention. 

First, in the UK, part of the convention in a hung parliament is that the incumbent prime minister is usually given the first opportunity to form the government. 

This is because the UK is primarily a two-party system (Labour and Conservative) with several smaller parties (Unionist Democratic Party/Liberal Democrats). 

Malaysia, on the other hand, has several coalitions of political parties – BN comprising Umno/MCA/MIC/PBRS, or PN (Bersatu/PAS/Gerakan), or PH (PKR/DAP/Amanah/Upko). These coalition parties have previously and usually formed further coalitions with smaller parties. 

It would be pointless to ask the incumbent prime minister to form the government because it is not likely that he will be able to do so as his party only has 30 seats in Parliament. There is therefore no chance that he could form the government. 

Second, the manner in which this convention is applied in the UK is not consistent with the practice in Malaysia since 2018. In the UK, it is assumed that all of the members of the two largest coalition parties will vote consistently and the invitation is extended to the leader of the party with the most seats, remembering that it is primarily a two-party system. 

This is not the convention in Malaysia. In times of doubt, the palace has asked individual MPs to provide signed statutory declarations to determine their intent and conducted interviews with the individual MPs.

In Malaysia, there is a written constitution. The requirement is for the candidate to convince the Yang di-Pertuan Agong that he is someone who "is likely to command the confidence of the majority of the members of that House." That is a specific test. 

This test cannot be met simply by selecting the party with the largest number of seats. There are two reasons for this.

First, the test requires someone who is "likely to command the confidence of the majority of the members of that House". It does not envisage an assumption that the party with the largest number of seats is likely to command the majority of the members of the house. That is only applicable in a primarily two-party system like the UK. 

It is entirely possible in Malaysian coalition politics that one party (or coalition) may individually have the largest number of seats but that a coalition of smaller parties (with individually smaller numbers of seats) may collectively outnumber one party and have the majority. 

Second, simply selecting the party with the largest number of seats is inconsistent with the Malaysian convention of testing the will of the individual MPs through statutory declarations and interview. 

The Malaysian convention is consistent with the requirement of the Federal Constitution to determine who would "likely to command the confidence of the majority of the members of that House".

It must be remembered that the two principal contenders for the position themselves derive their numbers from a coalition of component parties. 

The way forward is to give the candidate who can demonstrate that he is most likely to have the support of the largest number of members of the house the first right to the form the government and to let that candidate attempt to secure the support of the majority of the members of the House.

That is a modification of the UK convention, which would be consistent with the Federal Constitution and the Malaysian convention. 

With this in mind, it is clear that Muhyiddin Yassin should be given the first opportunity to form the government and not Anwar Ibrahim. 

This is because he has the support of at least 105 members of the House, comprising 73 from PN, 23 from GPS, six from GRS, two independents and one from KDM. 

Anwar has the support of a total of 86 seats, consisting of 81 from PH, one from Muda, three from Warisan and one from PBM.

In order to achieve the result of the test as to who is more likely to be able to command the majority of the members of the House, the first opportunity should be given to Muhyiddin as he commands the support of the most number of MPs.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.