Forming a stable government that lasts
For lasting political stability now that Ge15 is over, we must get it right from the start, with the formation of the government.
WHEN this article was written, the outcome of the 15th General Election (GE15) was still unknown. Hence, it had the benefit of “the veil of ignorance” – the author cannot advocate certain positions only because he knows the election outcome.
Regardless of which parties win and lose, the following is true: Malaysia needs and deserves a stable government that lasts, hopefully, till 2027.
That the new Parliament would be hung – with no coalition or party commanding a simple majority – should not be an obstacle to forming a stable and functioning government.
From Germany to New Zealand to Canada, countries with hung parliaments and coalition or even minority governments have experienced political stability, economic dynamism and social inclusion. Of course, there are also instances of political instability in other hung parliaments.
To have a stable government, we must now get it right from the start, with the formation of the government.
Negotiating the formation
Article 43(2)(a) of the Federal Constitution stipulates that “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”, without advising how he may come to his judgement, especially when no coalition/ party commands a simple majority.
In contrast, the UK Cabinet Manual (2011) spells out very clearly the process in Paragraph 2.13: “Where a range of different administrations could potentially be formed, political parties may wish to hold discussions to establish who is best able to command the confidence of the House of Commons and should form the next government. The Sovereign would not expect to become involved in any negotiations, although there are responsibilities on those involved in the process to keep the Palace informed .... ”
In her chapter on “Government Formation” in the book Making Democracy Work – Institutional Reforms for Malaysia, parliamentary expert Maha Balakrishnan provides a good introduction to the UK and New Zealand Cabinet Manuals.
While we have yet to have our own Cabinet Manual to codify conventions, this is the right time for new and stabilising Constitutional conventions to be established.
The two utmost priorities should be preserving the important but limited Constitutional monarchy and ensuring a stable and accountable government. No political party/ coalition should drag the palace into negotiations. If the palace is perceived to be picking the government rather than merely facilitating its formation, the government’s future failures would taint the monarchy.
The backlash over the appointment of the Tan Sri Muhyiddin Yassin government in March 2020 when its pandemic and economic policies failed in mid-2021 is a lesson that should be taken seriously.
As hung parliaments become a new normal, a precedence should be set unequivocally that a majority-backed prime minister candidate is decided by political parties, appointed by the King, and then confirmed by parliamentarians.
Here, we must go beyond the letter of Article 43(2)(a) and not naively treat a parliamentary government as a medley of individual lawmakers agreeing only who the prime minister is.
The roles and hierarchy of political parties must be recognised even in the formation of a single-party majority government, what more in a coalition government in a hung parliament.
This rules out obliging the King to interview MPS or count their statutory declarations (SDS). The ugly scenes of PM or chief minister aspirants trying their luck at the palace gates with a bunch of SDS in hand must absolutely be made a relic of the past.
To maximise stability, it would be best if the leader of the coalition that wins the largest number of parliamentary seats be given the “first bite at the cherry” in inviting other parties to join a government he leads. If he fails to assemble a majority, then the opportunity should go to the leader of the coalition with the second largest number of seats.
Publicising coalition agreements and CSAS
To form a coalition government that can last for five years, the constituting parties must enter into clear and public agreements on what policies to pursue and not to pursue, and the mechanism to deal with new and undecided issues.
Here, their election manifestos should become a guide in listing their priorities and drawing the redlines. This will take time but the public – and the market – must be patient and allow parties to forge a stable and lasting government rather than rushing through the fastest form which may not last.
The market must not panic over rumours and speculation, enabling self-fulfilling prophecies created by plotters and propagandists. Malaysia has gone through three government changes since 2018 peacefully, and the public is strong and organised to deter any seizure of power by undemocratic means.
The agreement(s) between coalition partners and potentially the Confidence and Supply Agreements (CSAS) between government and the Opposition must be precise and must be made public, as was the memorandum of understanding on Political Transformation and Stability signed last September between the government of Datuk Seri Ismail Sabri Yaakob and Pakatan Harapan.
How detailed should these agreements be? New Zealand may provide a good reference. It has had eight hung parliaments and coalition and minority governments since 1996, without any political machinations. All agreements – five for a coalition, six CSA, and three for cooperation between a majority government and minor parties – are deposited in the Mcguiness Institute website at bit.ly/kiwicsa.
Secret agreements – like Dr Mahathir’s unkept promise of succession by Datuk Seri Anwar Ibrahim or the agreement signed during their transition between Muhyiddin and Ismail Sabri – are likely to be reneged on and cause more antagonism. Making agreements public reduces the risk of any side reneging as the public can punish the parties that dishonour their words.
To instil public and business confidence, the new government should commit itself to a full fiveyear term, so that investors feel assured enough to make longerterm plans.
Coalitions should avoid committing themselves too rigidly to promises that require a two-third majority to pass and that can easily be defeated, for example, giving 35% of parliamentary seats to Sabah and Sarawak. Such promises should be honoured by way of establishing a proper mechanism to study such matters prudently and forge a national consensus.
Confirmatory vote of confidence
To disincentivise ugly plots of unseating a coalition government with a collection of SDS, we must re-establish the pre-2009 convention of only dismissing and installing governments on the legislative floors.
All parties that drag unelected institutions – the monarchy, military, police, bureaucracy or clergy – into a power grab must be unconditionally condemned and ruthlessly punished in the next polls.
United and unwavering public commitment to parliamentary democracy is the ultimate guarantee that a hung parliament will not sink into chaos or invite unrest and even coups in the worst scenario.
To that end, as Maha argues in her book, we need a new Constitutional convention that every new prime minister should table a motion of confidence in him within two weeks of his appointment by the King.
A confirmatory vote of confidence – or investiture vote – will protect both parliamentary democracy and Constitutional monarchy by confirming His Majesty’s judgement on who is “likely to command the confidence of the majority of [parliamentarians]” as stipulated in Article 43(2)(a). This will kill any irresponsible plot of tabling more than one name for PM designate in the hope of dragging the palace into partisan politics.
An investiture vote is particularly important for the new government to avoid its collapse by December. It will have to pass a financial Bill – since it cannot rush through the budget in December to enable provisional withdrawal from the consolidated fund – and the Bill’s defeat is tantamount to a budget defeat.
Getting the investiture vote passed is like getting a vaccine by removing any doubt about the government’s working majority.
Locking in a responsible Opposition
No government can work if the Opposition is pushed into a corner and forced to take every means to fight for its survival. The lessons from the last three governments must be learned.
One key reason why the Pakatan Harapan government collapsed was its obsession – under prime minister Dr Mahathir – to dismember Barisan Nasional and Umno and construct a Barisan-like dominance. The unintended consequence of Umno losing its Sabah and Sarawak partners and its own MPS was the party moving further to the Malaymuslim right and joining forces with PAS in attacking every multiethnic policy of Pakatan’s.
Likewise, the Perikatan Nasionalled government collapsed because Muhyiddin was too arrogant to offer a political truce to the Opposition until the last days of his premiership.
The new government must realise that Article 49A of the Federal Constitution – the anti-party hopping law – in itself (rightly so) does not stop parliamentarians from shifting their allegiance to a new government. For example, not just GRS can join a federal government without Perikatan, Barisan Sabah parliamentarians likewise can sign a CSA with a federal government without Barisan.
For the next government to function healthily, the Opposition parties must be locked in with the right incentives to be responsible.
Three things can be done to empower the Opposition in exchange for their responsible (instead of desperate) behaviour: a law on equitable constituency allocation, a political finance law with public finance, and the official recognition of a shadow Cabinet.
To ensure ambitious Opposition politicians are patient in waiting for the next election, shadow ministers should be given commensurate salaries, resources and access to government information to play a long game, as Maha discusses in another chapter, “Shadow Government”, in her book.
Separating public prosecution from AGC
Finally, as there are members – confirmed or potential – of the “court cluster” (ie, those facing court cases) in every coalition, the next government is likely to be tainted with accusations of political deals to let off some implicated politicians. This could be the crack that eventually breaks the coalition.
As long as the Attorney General’s Chambers (AGC) holds the power to drop charges or deliberately lose suits, it is in the interest of any court cluster politician to unseat the government and install a new AG friendly to them, warns lawyer researcher and another author of Making Democracy Work, Andrew Yong.
Not pursuing this separation was one of the biggest mistakes of the Pakatan government, perhaps deliberately done in line with Dr Mahathir’s game to hold Umno leaders to ransom.
The new government must make this – already committed to by both Pakatan and Barisan if they are in government – its first priority. Also, all MPS with court case should stay out of the Cabinet and any other executive position.
A hung parliament may give Malaysia the best chance to upgrade our politics from ethno-religious fights and patronage. It could, of course, also be our worst nightmare.
The public must step up to be the ultimate guarantor of political stability. It must categorically demand parties to respect democratic procedures and not pursue their own desirable outcomes by all means.