Post-election Constitutional issues

At the conclusion of a general election, several critical issues of Constitutional law come to the forefront.

MOST political commentators agree that the 15th General Election on Nov 19 is so laden with uncertainties that the final outcome is difficult to predict.

Politically, no faction appears to be a clear favourite. It is not known whether the three largest coalitions – Barisan Nasional, Pakatan Harapan and Perikatan Nasional – are really going it alone or have made discreet arrangements with adversaries for pre- or post-election cooperation.

Sabah and Sarawak’s support may make or break the government as these states are no longer the “fixed deposit” they used to be.

The newly enfranchised 1.2 million, 18- to 20-year-old youths (constituting 16% of new voters) are a wild card. No one can be sure how many have the means and the mind to show up at voting centres. No one can be sure whether they will vote to keep the status quo, change or to restore the 2018 political scenario.

In any case, their impact may not be as significant as is believed because most of the young voters reside in heavily populated, malapportioned urban constituencies where a vote counts much less than in rural districts.

The automatic voter registration system has added nearly seven million new voters to our electoral roll. But voting is not compulsory and given the previous apathy of eligible but unregistered citizens, it is not known how many will this time perform their civic duty and take part in democracy’s iconic exercise.

A likely hindering factor is if their voting centre is far removed from their place of residence and work. Floods and Covid-19 may also affect the overall turnout.

Whatever the case, a general election throws up several critical issues of Constitutional law.

Appointment of the prime minister: Under Articles 40(2)(a) and 43(2)(a), the appointment of the PM is a discretionary function of the Yang di-pertuan Agong but with some guidelines.

The PM must be a member of the Dewan Rakyat. He must be a citizen by operation of law. He must be a person who, in the judgment of the King, is likely to command the confidence of the majority of the members of the lower House.

The judgment of the King is, most probably, unreviewable in a court of law.

However, despite the monarch’s undoubted discretion, there is a long-standing convention in parliamentary democracy that if the leader of a party or coalition has a clear majority in the elected House, the King must invite him/her to form the government.

This convention has been followed at the federal level but has not taken root in the states where there have been spectacular departures – in Johor in 2022, Perlis in 2018 and 2009, Selangor in 2014, Terengganu in 2008 and Sabah in 1994.

Hung Parliament: If there is a “hung Parliament” – ie, no party or coalition has an absolute majority – the Yang di-pertuan Agong’s exercise of discretion can change the course of history.

However, the King cannot rule in person. He must have a government to advise him.

But he is not bound to appoint the leader of the party that has more votes than all the other parties. He may give a chance to anyone who, in his opinion, has the capacity to put together a working majority. The appointments of prime ministers in 2020 and 2021 are cases in point.

It is not prescribed by law how the King must be satisfied. He may require a vote of confidence in Parliament. He may interview individual MPS (as the King did in 2020). Affidavits may be accepted. Party leaders may be interviewed.

Pending the appointment of the PM, the caretaker PM continues to hold the fort according to the “incumbency principle”. The Constitution does not tell us how long the caretaker can continue in office. There are precedents in Belgium and Israel of caretaker PMS remaining in the saddle for months. Minority or unity government:

Several variations are possible in a hung Parliament.

First, a minority government. In exceptional circumstances, if no leader can cobble together a majority coalition, His Majesty may have to appoint a minority government that is able to work with the Opposition through a Confidence and Supply Agreement. In this arrangement, the Opposition promises support on major issues but stays out of the government.

Second, a unity government. The major factions, with the encouragement of the King, may agree to form a multi-party, inclusive government pending the next election.

Such a government can be stable, and with an agenda that is inclusive. But it may suffer the problem of being too bloated in the number of Cabinet posts given out.

Our Constitution is flawed because it puts no ceiling on the number of ministers. In contrast, all state Constitutions prescribe a minimum and maximum. In Johor, Kelantan and Terengganu, the maximum is eight. In all other states, the maximum is 10.

Summoning of Parliament: Article 55(4) requires that after a general election, the new Parliament must be summoned to session no later than 120 days from the date of its dissolution.

No double dissolution: If no party or coalition wins an absolute majority, can an immediate second dissolution of Parliament take place to call a fresh election?

Under Article 55(4), a double dissolution would be unconstitutional. The new Parliament must be summoned to session first. Only then may it be dissolved to call a fresh election.

Defections: Party-hopping, defections, or crossing the floor, is a bane in many democracies. In India, an elected representative who resigns from a party on whose ticket he won the seat must seek a fresh mandate from the people.

This anti-hopping, anti-defection law was inserted into the Kelantan and Sabah state Constitutions in the early 1990s but was declared unconstitutional by the Supreme Court on the grounds that it infringed on the fundamental right to associate under Article 10 (case of Nordin Salleh, 1992). This means that partyhopping was regarded by our courts as part of the freedom of association.

However, after a Constitutional amendment in 2022, party-hopping by individual MPS will result in their seat becoming vacant. However, the MP is not disqualified from re-contesting in a by-election.

The power to determine whether the vacancy exists belongs to the Speaker of the House, who must notify the Election Commission (EC) within 21 days of the notice of defection. The EC must hold the by-election within 60 days.

A remarkable aspect of the new anti-defection law is that it bans individual defections but if an entire parliamentary party leaves a coalition and joins another or forms a new coalition, the MPS of the party do not lose their seats. So the question is being raised: Would the “Sheraton Move” be permissible by the law? (The 2020 Sheraton Move forced the collapse of the Pakatan Harapan government elected in 2018.)

Election disputes: In Malaysia, in the interest of speed and finality, the High Court is converted into a special election court when necessary. Under Article 118, its decision used to be final and conclusive but is now appealable through the ordinary court hierarchy.

Among other things, the court can hear allegations of election offences under the Election Offences Act 1954, the Malaysian Anti-corruption Commission Act 2009 and the Penal Code.

The legal provisions cover all forms of crimes, including “treating”, undue influence, bribery and racial and religious incitement.

However, in the enforcement of the law, there is a wide chasm between the laws on the books and the law in action.