Introduction to I-CONnect Symposium: Malaysia Boleh! Constitutional Implications of the Malaysian Tsunami

[Editor’s Note: I-CONnect is pleased to feature a week-long symposium on the recent landmark Malaysian election. We are very grateful to our organizers, Professors Jaclyn L. Neo, Dian AH Shah, and Andrew Harding, for assembling a wonderful group of scholars to discuss the elections from different perspectives.[1]]

—Jaclyn L Neo, Dian AH Shah, and Andrew Harding, National University of Singapore

This week, I-CONnect hosts an online symposium examining the constitutional implications of the recent general elections in Malaysia which led to the first democratic change of federal government in the history of independent Malaysia. The online symposium will feature six posts from the following constitutional law scholars who have been keen observers of democratic developments in Malaysia (with each post linked to their names below):

1. Andrew Harding, Professor, National University of Singapore, Faculty of Law
2. Donald L. Horowitz, James B. Duke Professor Emeritus of Law and Political Science, Duke University
3. Jaclyn L. Neo, Associate Professor, National University of Singapore, Faculty of Law
4. Dian AH Shah, Research Fellow, National University of Singapore, Faculty of Law
5. Shad Saleem Faruqi, Emeritus Professor, University of Malaya, Faculty of Law
6. Kevin YL Tan, (Adjunct) Professor, National University of Singapore, Faculty of Law[2]

In this introduction, we will first set out the complex events of and relevant to the 10 May 2018 transition, which ended six decades of dominant-coalition rule since independence in 1957. This was Malaysia’s 14^th general election (GE14), and it involved state assembly elections in 12 of the 13 states as well as for the Federal Parliament. In this ‘Malaysian tsunami’, when all federal and state counts had been conducted, the incumbent Barisan Nasional (BN), had lost almost half of its seats in the Federal Parliament, lost control over all but two state governments (Pahang and Perlis: another, in Sabah, remains a matter of dispute, as is explained below). The BN share of the federal vote fell from about 47% to about 36%. It won only 79 of 222 seats in the Federal Parliament. In contrast, the Pakatan Harapan (PH, or ‘Coalition of Hope’), a new coalition of four political parties led by former Prime Minister Mahathir Mohamad, won 47.3% of the popular vote and control over 113 seats in the Federal Parliament. This is just over the 112 seats needed to form a simple majority in Parliament, but PH’s dominance is bolstered by its alliance with Warisan (a party in Sabah) and a few independent candidates, which means that PH and its allies now have 122 seats in Parliament. In addition the PH won control of six of the state assemblies, two remaining with the BN, two being won by the Islamic party PAS, and two being hung (Perak and Sabah).

To put it simply, PH was not widely expected to win.[3] Early polls showed that BN was likely to retain control over the federal government, especially by virtue of its slightly weakened but still supposedly solid support among ethnic Malay voters. However,  it became increasingly apparent during the short election campaign that voters were particularly angered by reports of the lavish lifestyles of Prime Minister Najib Tun Razak and his wife, as well as allegations of corruption against him involving state investment fund 1MDB described by the US Attorney-General Jeff Sessions as “kleptocracy at its worst”. The Malaysian voters contrasted these excesses to their own experience of rising prices, stagnant growth, a severely weakened currency, road tolls, and the imposition of a 6 per cent Goods and Services Tax.

Besides the economic factors, many voters were incensed by attempts by the Election Commission (EC) and the BN government to reduce the opposition vote or corral it by gerrymandering and malapportionment of constituencies into large, urban constituencies in contrast to much smaller, rural constituencies where the BN expected to find its base. A constituency-delimitation exercise that massively favoured the BN in terms of constituency sizes and boundaries[4] was rushed through Parliament days before voting. In addition, the Anti-Fake News Act was passed just slightly more than a month before polling day, apparently designed to prevent discussion of the corruption allegations during the campaign. The EC also angered voters by setting polling day for the middle of the working week, Wednesday 9 May, thus breaking with a practice of holding polls at the weekend. This was seen as an attempt to suppress the vote as many voters would need to obtain leave to travel to their home town to vote, and then return in time for work the following day. When the major domestic budget flight provider Air Asia laid on extra 120 flights and fixed flat low rates for fares, the government applied extreme pressure via the aviation regulator on Air Asia to cancel flights. As Malaysia does not have an automatic registration for elections, the EC essentially prevented voters who registered after 1 January 2018 from voting by failing to update the register of electors. This is despite an earlier statement by the EC in January 2018 encouraging voters to register for elections. The entire campaign period was only 11 days, which made it difficult for overseas voters to receive and return their ballot papers in time for their votes to be counted. In addition, the EC placed unnecessary restrictions affecting the PH campaign. One forced all of the four PH parties to campaign under one logo instead of their well-known party logos. Another rule restricting use of portraits of leaders to the candidate and the party president and vice-president prevented widespread use of portraits of PH’s two main leaders, Tun Mahathir Mohamad and Datuk Seri Anwar Ibrahim, who did not hold party positions.

Despite winning the election, the PH faced a number of difficulties. First, there were potentially disastrous consequences for the BN in losing power, sparking concern that there would be political trickery or obstruction to handing over power. Given the serious, long-standing corruption allegations, there was a genuine fear that, rather than lose power, Najib would proclaim an emergency and stay in power with support from the armed forces. This would have been made possible through Najib’s chairmanship of the National Security Council, a federal agency set up under the controversial (and hastily-passed) National Security Council Act 2016. It would have been recalled that in 1969, a bad result for the Alliance (the predecessor of the BN) resulted in violence and an emergency proclamation that placed Malaysia under martial law for nearly two years.[5] In 2018, there seemed to be no route, it seemed, to a comfortable five years on the opposition benches, or retirement to a country villa, for some leading BN figures. Indeed, since the PH took over the government, investigations against Najib and others have proceeded apace.

Secondly, there were concerns that the EC would manipulate the voting process to conceal, alter, or delay announcement of the results. The EC is under the PM’s office, and is not an independent agency, as its conduct during the campaign strongly suggests. Among others, the Malaysian experience teaches strongly that election bodies need to be made completely independent of the government of the day. It should be noted that the results listed above were not known for the major part of 10 May. As Malaysians awoke to rumours of a BN defeat, the results were slow to be announced and the situation was unclear. It was only after a tumultuous post-election day that Mahathir was finally sworn in as PM about 10pm that day.

Thirdly, there was a fear that Najib would find ways of manipulating his way back into power by buying over elected PH members or forming a coalition with PAS, the third force in Parliament. There is no law against party-hopping in Malaysia and bribing of opposing members has been part of the political culture for decades.

Fourthly, there is history between Mahathir and Malaysia’s nine traditional Rulers. This uneasy relationship stemmed from constitutional amendments during Mahathir’s premiership which significantly reduced their constitutional powers of royal assent and sovereign immunity (1984-5 and 1993).[6] There was a fear that they would be reluctant to see Mahathir appointed as PM or even PH leaders as Menteri Besar (chief ministers) at the state level, especially (but perhaps not only) where the assembly was hung.

Many more intricate details of the process leading to Malaysia’s political transition happened behind closed doors and remains a matter of speculation. However, what is clear is that when 10 May dawned there was excitement but also palpable tension in the air. Would Mahathir really be appointed PM that day, or was there a terrifying potential tail-piece to this story? The EC appeared to be delaying announcement of results, so that although it seemed clear that PH had won, there was no official news of a majority having been reached. Mahathir’s appointment by the constitutional monarch, the Yang di-Pertuan Agong, was said to have been deliberately delayed, a charge which the latter strongly denied in an official announcement later in the day.

Arguably, it was by announcing a PH victory as May 9 drew to a close that Mahathir cunningly moved to place pressure on the various actors to move things forward and appoint him as PM. He also told PH supporters to remain quiet for at least 12 hours to avoid any excuse for an emergency proclamation. Mahathir had already, before the election, requested the army commanders to remain neutral and allow the constitutional process to unfold. The army chief had stated that the armed forces must remain loyal to the government, but was then forced to clarify that they would be neutral through the process that was taking place.

As it turns out, the Yang di-Pertuan Agong had spoken with Datuk Seri Wan Azizah, Anwar’s wife and leader of PKR, the major party in the coalition, and she had been offered the position of PM, despite the fact that the PH had consistently made it clear that Mahathir was their candidate for PM. She refused the offer. The party leaders moved to have a letter signed by all the PH MPs (by now the results had been confirmed) indicating support for Mahathir as PM, and this letter was given to the Yang di-Pertuan Agong. As public concern at the delay mounted, officials representing the public service, the police and the army visited the Yang di-Pertuan Agong to urge Mahathir’s appointment as a matter of public security. It is understood that hesitations with Mahathir’s appointment were overcome by swift action by the Timbalan (Deputy) Yang di-Pertuan Agong, Sultan Nazrin Shah of Perak.

These developments taken together put the constitutional position beyond serious doubt, and the swearing-in ceremony finally commenced at around 9:30 pm on 10 May 2018, marking the start of Malaysia’s political transition.

Unfortunately, there are no happily ever after in politics. The transition did not start or end with Mahathir’s appointment. State assembly elections had taken place in all the states except Sarawak, which had already held state elections in 2016, and was governed by a coalition of parties under the BN until recently when all four component parties of BN announced their exit from the coalition to form a new state-based alliance. The latter managed to win a clear majority of seats in two states (Perlis and Pahang); whereas the PH retained control of two states (Penang and Selangor) and gained control over four more states (Kedah, Negeri Sembilan, Melaka, and Johor).[7] The fate of two other states (Perak and Sabah) was however up in the air for several days. At state level, as at the federal level, Westminster-type conventions apply and the head of state is obliged to appoint the member of the assembly who in his judgment commands the confidence of a majority of members thereof; this convention is written into the state constitutions, which in turn must be consistent with Schedule 8 of the Federal Constitution, which provides for the applicability of these conventions at the state level.

In Perak, the PH won 29 seats out of 59 whereas BN won 27 seats. PAS held three seats. This meant that no single party had a majority in Perak. Reports indicated that the BN was attempting to form a coalition with PAS to take over the state government. The BN even issued a statement saying that it had enough support to do so. Eventually, however, Sultan Nazrin Shah decided that since the PH had the largest number of seats, it would be given the first opportunity to form the government. This is of course consistent with Westminster-type constitutional convention. PH eventually received endorsement from two BN members to form the government and the Ruler appointed the Chief Minister according to the PH’s choice.

In Sabah, things were even more confusing. BN and a local party, Warisan Sabah (which is aligned with the PH), had each won 29 seats of the 60 seats in the state legislature. A local party, Parti Solidariti Tanah Airku (Star), won two seats, which as with PAS in Perak, gave it the possibility of playing kingmaker. Star announced that it would support the BN. With this announcement, the leader of BN in Sabah, Musa Aman, went to the Yang di-Pertua Negeri (Governor), who then appointed him as Chief Minister. However, several days later, Warisan Sabah announced that six BN members had defected, which meant that Warisan now had a majority in the state assembly. In a strange twist of events, the Governor met Shafie Apdal, the leader of Warisan, and appointed him as Chief Minister. This was done even though Musa insisted that he had yet to resign. It seems therefore that currently, Sabah may well have two Chief Ministers, and two governments, and a political impasse. Musa has brought proceedings against Shafie, seeking to have his appointment declared invalid. In another remarkable twist, the Governor made a police report against Musa, claiming that the latter had threatened violence against him. Then, on 11 June 2018, in a special sitting of the Sabah State Assembly, 43 assemblymen present voted in favour of Shafie Apdal as the Chief Minister. The vote of confidence proceeded without the presence of 37 assemblymen from the opposition who boycotted the special sitting.

It bears mentioning that the election and its aftermath were marked by remarkably good humour and patience amongst Malaysian voters, but also persistence in exercising their democratic rights in spite of long queues in the heat at polling stations, difficulties crossing the border from Singapore, and in returning postal votes. Malaysians were very watchful, some preventing unmarked or suspicious cars entering the compounds of counting centres. In the end, the transition was smooth and no violent incidents were reported. Furthermore, anxious overseas voters grouped together to help get their votes back, with travellers volunteering as ballot-mules and runners to ensure that votes arrived at the respective voting booths in time to be counted. Some overseas voters even hung around foreign airports to chance upon travellers to Malaysia who could bring back their votes.

As Malaysia confronts an entirely new political situation, this dramatic narrative of events should inform constitutional scholars to the various obstacles that need to be negotiated in order to steer a smooth and peaceful transition in what used to be, but is no longer, a dominant-party system. The constitutional implications of this transition will reverberate for years, even decades, to come as Malaysia grapples with a new democratic reality. There is now great hope of a more transparent, more just, and more equal society, though there will be roadblocks and stumbles along the way. Our contributions in this symposium parses through the constitutional meaning and significance of the elections, highlights some needed constitutional changes, and identifies difficulties and potential pitfalls in achieving lasting democratic change.

Suggested citation: Jaclyn L Neo, Dian AH Shah, and Andrew Harding, Introduction to I-CONnect Symposium: Malaysia Boleh! Constitutional Implications of the Malaysian Tsunami, Int’l J. Const. L. Blog, Jun. 21, 2018, at: http://www.iconnectblog.com/2018/06/introduction-to-i-connect-symposium-malaysia-boleh-constitutional-implications-of-the-malaysian-tsunami/

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[1] Translated as “Malaysia Can!”, this slogan was popularized in the 1990s during which Malaysia experienced rapid economic growth under then Prime Minister Mahathir’s leadership. As an opinion piece recently noted, quite accurately, this phrase became an anti-slogan as disillusioned citizens began using it to mock their country and government for their bumbling ways. Zuraidah Ibrahim and Bhavan Jaipragas, ‘Malaysia Boleh: Mahathir’s Return to Powers is More than a Palace Coup. It is an Era of Hope’ (The phrase “Malaysia Boleh!” in the title can be translated as “Malaysia Can!.” This slogan was popularized in the 1990s during which Malaysia experienced rapid economic growth under then Prime Minister Mahathir’s leadership. As an opinion piece recently noted, quite accurately, this phrase became an anti-slogan as disillusioned citizens began using it to mock their country and government for their bumbling ways. Zuraidah Ibrahim and Bhavan Jaipragas, ‘Malaysia Boleh: Mahathir’s Return to Powers is More than a Palace Coup. It is an Era of Hope’ (South China Morning Post, 10 May 2018) <http://www.scmp.com/week-asia/politics/article/2145601/malaysia-boleh-mahathirs-return-power-more-palace-coup-it-new-era> accessed 14 June 2018.South China Morning Post, 10 May 2018) <http://www.scmp.com/week-asia/politics/article/2145601/malaysia-boleh-mahathirs-return-power-more-palace-coup-it-new-era> accessed 14 June 2018.

[2] Professor Faruqi was recently appointed to the Committee of Institutional Reforms by the new government.

[3] See for example, ‘Will anybody win in Malaysia’s election?’ (East Asia Forum, 30 April 2018) <http://www.eastasiaforum.org/2018/04/30/will-anybody-win-in-malaysias-election/> accessed 14 June 2018; Clive Kessler, ‘Malaysia’s electoral fantasy belies worrying reality’, (East Asia Forum, 29 April 2018) <http://www.eastasiaforum.org/2018/04/29/malaysias-electoral-fantasy-belies-worrying-reality/> accessed 14 June 2018; and ‘BN to romp home to GE14 victory, analysts predict’(The Sun Daily, 7 May 2018) <http://www.thesundaily.my/news/2018/05/07/bn-romp-home-ge14-victory-analysts-predict> accessed 14 June 2018.

[4] The extent of partiality in the delimitation of constituencies is difficult to set out in brief. One indicator is that in GE14 it took on average 76,000 voters to elect one PH member, and 46,000 to elect one PH member. Another is that BN won only 9 of the 100 largest seats out of 222. Some constituencies are as much as seven times larger than others.

[5] For more, see HP Lee, Constitutional Conflicts in Contemporary Malaysia (Oxford University Press, 2017), especially at 17-21; Andrew Harding, The Constitution of Malaysia: A Contextual Analysis (Hart Publishing, 2012), especially at 45-49.

[6] See Lee (ibid) at 30-62, and Harding (ibid) at 117-121.

[7]‘Results Overview’ (The Star Online, 10 May 2018) <https://election.thestar.com.my/> accessed 14 June 2018.