Four former Bar council presidents and several other prominent activists and legal minds have called for Pakatan Harapan to be given the first opportunity to form a government following yesterday’s elections that resulted in a hung Parliament.
“The party (which includes a coalition of parties) with the highest number of seats will first be asked by the Agong to form the government.
“It is then up to that party to get any other party to agree to join it; thus, obtaining a sufficient number of seats to secure a majority of the members of the Dewan Rakyat,” said the signatories in a statement.
They cited the Court of Appeal judgment in the Perak Constitutional crisis of 2009 as precedent.
The four former Bar council presidents are Ambiga Sreenevasan, Yeo Yang Poh, Christopher Leong and Ragunath Kesavan.
In yesterday’s polls, Harapan scored 82 seats making it the largest grouping but still some 29 seats short of a majority.
The statement in full:
Statement on forming a government after a hung Parliament outcome
After a general election, the first step in the formation of a government is for the Yang di-Pertuan Agong (YDPA) to appoint as the prime minister (PM) a member of the Dewan Rakyat who in his judgment is likely to command the confidence of the majority of the members of the Dewan. The prime minister then goes on to name his Cabinet to form the government.
In the past, the choice has been relatively easy. The YDPA chooses as PM the leader of the party or coalition that has secured the largest number of seats in Parliament.
However, the results of GE15 show that no single party or coalition has secured the 112 seats needed to secure a simple majority. This has resulted in what is termed a ‘hung Parliament’.
How then does the YDPA choose a PM, as it is not really possible for the king to ascertain who will command the confidence of the majority of the members in the Dewan Rakyat? There is no explicit provision in the Constitution to provide an answer to this unique situation.
Our courts have provided the answer. Then the king must resort to how these kinds of issues, which are not explicitly provided for in the constitution, are resolved.
The solution lies in abiding by conventions – that is, unwritten practices that are generally followed in the absence of specific provisions in the constitution.
In the 2009 Zambry v Nizar litigation tussle as to who will continue to be the menteri besar and form the state government of Perak, the Court of Appeal said that conventions are an integral source of law, citing in support of Article 160(1) of the Constitution which reads as follows
“Law includes written law, the common law, insofar as it is in operation in the federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.”
What convention then governs a hung Parliament situation? It is this.
The party (which includes a coalition of parties) with the highest number of seats will first be asked by the king to form the government. It is then up to that party to get any other party to agree to join it; thus, obtaining a sufficient number of seats to secure a majority of the members of the Dewan Rakyat.
With these numbers secured, it will present them to the king to satisfy His Majesty of the majority numbers. The king will then appoint the accepted leader of the coalition as PM who will then appoint his cabinet that will form the government.
In the present context, the Pakatan Harapan coalition has secured the largest number of votes (82). By convention, it should be given the first choice of eliciting support from other parties to form the government.
Gurdial S Nijar
Mohamad Ariff Md Yusof
Kuthubul Zaman Bukhari
Yeo Yang Poh
Persatuan Patriot Kebangsaan (Patriots) – Malaysiakini