Notes on a New Nation, Day 2

Notes on a New Nation
Day 2 Post-GE14 (as at 5.45pm, 11 May 2018)

So much is taking place at such a rapid pace that I feel the need to document events so that I (and perhaps other researchers) can look back on this period with some semblance of accurate scrutiny, sifting away the rumour from the fact.

Over the last 24 hours, much has transpired. When I last wrote my initial thoughts, it was based on the wrong assumption that the leader of the party with the majority seats would be the person the Agong would identify as the Prime Minister. This view was corrected when Tun Dr. Mahathir Mohamed in his 12.30pm press conference on Thursday 10 May 2018 quoted from the Federal Constitution accurately, stating that “the constitution says that the Prime Minister should have the support of the majority of the Members of Parliament. It does not say it should have the support of any party. As long as it has the support of the majority of Members of Parliament, he is entitled to become the Prime Minister. The majority has the right to name him and to require him to be duly appointed according to the constitution.” This was reiterated in a statement by the former Malaysian Bar Presidents, who said that Article 43(2)(a) of the Federal Constitution expressly provides that the Yang di-Pertuan Agong shall appoint a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of that House, and thereafter he shall on the advice of the Prime Minister appoint other Ministers from or among either House of Parliament.

This is similar to the precedent in 2008 in the states of Selangor and Penang, and in 2010 in Perak, where the majority of the members of the State Assemblies in question did not need to prove they were part of a formal coalition. I made this addition in my edited commentary yesterday.

Based on the above constitutional requirement, Tun Dr. Mahathir announced that he would seek an audience with the Agong (Sultan Muhammad V) at 5pm to be sworn in. My understanding is that this announcement was made without prior arrangements with the Palace itself. At 2.45pm, the Election Commission Chairman Tan Sri Mohd Hashim Abdullah presented the official results of the polls to palace officials.

In a press statement issued in the afternoon, Comptroller of the Royal Household Datuk Wan Ahmad Dahlan Ab Aziz said the palace received an official letter from Pakatan Harapan component members at 1.38pm supporting the appointment of Mahathir as Prime Minister. He said that Sultan Muhammad V had then met with party leaders Wan Azizah (PKR), Muhyiddin (Bersatu), Lim Guan Eng (DAP) and Mohamed Sabu (Amanah) at 5pm. It is at this 5pm meeting that presumably the four party leaders affirmed that they supported the appointment of Mahathir as Prime Minister. The press statement then confirmed that “His Majesty after having interviewed them and listened to their views, decided to invite Tun Dr Mahathir to form the next Federal Government pursuant to Article 43(2a) of the Federal Constitution. His Majesty then consented to swear Tun Dr Mahathir in as Prime Minister at 9.30pm today”.

Amidst all this, there were many messages flying around on WhatsApp (yes, this has been the WhatsApp election) that the Agong had intentionally delayed the swearing-in ceremony. After all, in previous occasions the swearing-in ceremony takes place the morning after the general election – it is a ceremonial perfunctory affair, but nonetheless one that is of utmost importance to lend legitimacy to the position of Prime Minister, after which he can carry out his official duties. In the press statement, the Istana Negara stated that it “strongly refutes any allegation that His Majesty the Yang Di-Pertuan Agong XV Sultan Muhammad V delayed the appointment of Tun Dr. Mahathir as Prime Minister” and ended by saying he looks forward to working with Tun Dr Mahathir and his administration. After much trepidation and bated breath, the swearing-in ceremony took place without much further ado at 9.30pm on Thursday night 10 May 2018. Outside, there were celebrations as people gathered with the PKR flags. Finally, Tun Dr Mahathir was sworn in as Malaysia’s 7th Prime Minister at the ripe age of 92 (about to be 93 in July).

Pakatan Harapan held a press conference at midnight, with newly appointed Prime Minister Tun Dr Mahathir speaking (but surrounded with the newly elected MPs), thanking the people for their support. He made special care to mention the importance of a “business-friendly government” and “Malaysia Incorporated” – the latter of which being the concept that he had personally introduced many years earlier. His emphasis was very much on cleaning up the country’s finances, and economic management, stating clearly that “we have to increase the confidence of investors into Malaysia’s administration.” All ended on a positive note.

Because he moves so quickly, more events have unfolded today (Friday 11 May 2018) already. The Pakatan Harapan Presidential Council held a meeting this morning at Yayasan Al-Bukhary in KL, after which Tun Dr Mahathir announced several important measures. First, the formation of Cabinet, where 10 key ministries would be announced tomorrow (Saturday 12 May 2018), namely Finance, Home Affairs, Defence, Education, Rural Development, Economy, Public Works, Transport, Multimedia, Science & Technology and Foreign. He also said that all PH parties would be represented in the Cabinet. It will be interesting to see which parties and personalities will occupy these important ministries to immediately steer the country forward.

Second, he also announced that Yang di-Pertuan Agong Sultan Muhammad V has indicated his willingness to give a full pardon to de facto PKR leader Datuk Seri Anwar Ibrahim as soon as possible.

Now, again a constitutional legal expert would be best suited to address this issue, but based on my readings, it seems to be that here are no fixed rules or regulations pertaining to the process. It is not stated clearly as to who can be the applicant and there is not deadline for the King to decide on granting clemency. In deciding the pardon, the King can take into consideration other factors which the court are not allowed to, such as claims of innocence and injustice. In other words, the King has to decide based on conscience and thorough consideration without being influenced by any other party, quarter or individual. This is because at the end of the day, the King does not need to provide reasons for his decision when granting the pardon. Regardless of the outcome from the State’s Pardons Board based on the King’s decision, it cannot be challenged in court. In other words, his decision is the final outcome for the convicts.

Also, the King has the personal discretion to decide whether or not to grant the pardon. Further, he is not bound to act on the “advice” given by the Pardons Board. There are no rules governing the process. It is not stated who should be the applicant. Nor is the form of the petition prescribed. Also, there is neither a time limit for submitting the petition; nor for the King to decide. The considerations that the King must take into account are also not stated. And finally, there is no limit to the situations when a pardon can be granted on the basis of mercy. Whatever decision the King makes cannot be challenged in a court of law. The courts have consistently ruled that the discretion exercised is not justiciable. Nor can anything indirectly related to it be challenged – such as a delay in coming to a decision. (The above two paragraphs are quoted verbatim extensively from https://asklegal.my/p/malaysia-s-royal-pardons-system.html and http://www.thesundaily.my/node/297873).

Based on the above, there were rumours that Anwar Ibrahim would be released today (Friday 11 May), but this has been clarified by PKR, saying that the “legal process” would have to take place. According to Sivarasa Rasiah, PKR MP, “the process involves an application for pardon to be given to the Pardons Board, with documentation to be prepared. The Pardons Board will then have to hold a meeting, before a recommendation is made for the Yang di-Pertuan Agong to decide”. Once he is pardoned and released, the next steps would be, if Tun Dr Mahathir is serious about having Anwar Ibrahim in place as the 8th Prime Minister, to confirm whether he is able to contest in an election or not. Lawyers need to confirm whether as a former convict, the constitutional requirement about not being able to contest for five years would still hold if a royal pardon is granted. Then if he is permitted to contest, to hold a by-election for a vacated Parliamentary seat in order for Anwar Ibrahim to return as a sitting MP, in order to be a prime ministerial candidate.

The third major announcement this morning was that full investigations on the Attorney-General (AG), the Election Commission (EC), and the Malaysian Anti-Corruption Commission (MACC) would be carried out, for suspected misconduct. In the case of the AG, he accused AG Tan Sri Mohamed Apandi Ali to have broken the law by hiding evidence on the alleged misappropriation of funds in sovereign investment firm 1Malaysia Development Berhad (1MDB). On the MACC, whether or not they are biased and hence would need to be changed. Finally, whether the EC Chairman is biased and involved in corrupt practices, and if action would need to be taken against him. Swift action from the Prime Minister; it is hoped though that true institutional reform will be carried out, since even the powers of the Executive (concentrated within the Prime Minister’s Office) should not be absolute.

In the meantime, there are other local battles being fought, chief of which being in Sabah. BN won 29 seats, Warisan 21, PKR 2, DAP 6 and STAR (Jeffrey Kitingan’s party) 2. Initially it was thought that Warisan (Shafie Apdal) would be able to form government with all the other parties combined as this would make a simple majority of 31 seats of the 60, beating BN’s 29. Further, UPKO first announced it was leaving the BN coalition (it holds 5 state seats), but later this was retracted – apparently only its leader agreed to join Warisan, whereas the 5 ADUNs appear to be in favour of staying with BN. As a result, on Wednesday night 9 May 2018, BN announced the formation of a BN Sabah unity coalition government with STAR. On Thursday night 10 May, Musa Aman (Sabah BN Chairman) was sworn in as Chief Minister and Jeffrey Kitingan as Deputy Chief Minister. A spontaneous protest broke out outside Kota Kinabalu Istana, with people waving PKR flags. News is trickling out today (Friday 12 May) that Shafie Apdal was headed to the Istana, his purpose of the visit unknown. Two opposing coalitions are still fighting it out, to form Sabah’s new state government, although the swearing in of one side has already taken place.

In other states: As of late last night, Perak BN announced that it has enough seats to form the state government. BN has 27 seats in Perak, PAS 3 and PH 29. This indicates it might be cooperating with PAS to form government, and Zambry its former Menteri Besar is seeking an audience with Sultan Nazrin to seek his consent to form the state government. PAS has asked its members not to speculate, as the matter is still being discussed within their Majlis Syura (religious council). Kedah, however, has been called by PH – BN won 3, PAS 15 and PH 18 seats respectively. Its Menteri Besar Mukhriz Mohamed (also the state’s former MB under the BN government) has been sworn in officially.

This makes for very interesting analysis in days to come especially from a federalism perspective. Different states can form governments based on different parties in different coalitions now. This is really exciting and different in Malaysian politics. Where BN and PAS are cooperating in Perak, they are not doing the same in Kedah, nor at the federal level. State political parties are becoming more decentralised, it may seem. But PAS needs to be watchful, since its members have been campaigning against UMNO-BN, or at least partially so, and being in coalition with them even in one state might be disingenuous. So as it stands, BN holds 5 states (Perlis, Pahang, Sarawak, Perak (with PAS), and Sabah (with STAR)), PH holds 6 states (Penang, Kedah, Selangor, Negeri Sembilan, Malacca, Johor), and PAS holds 2 states (Kelantan and Terengganu).

It is a momentous time for Malaysia. Today, 11 May, marks UMNO’s official anniversary, 72 years after its formation in 1946. And it is in shambles. Already BN Penang is calling for Najib Razak to step down as the BN Chair, and the Kedah UMNO Youth is calling for him to step down as UMNO President. UMNO is having a “celebration” tonight for their anniversary, although I suspect it will be sombre and not very festive – a deep, hard look at itself is what’s needed. After all, we want a strong opposition to emerge too, to keep the PH government in check. BN recorded 36.42% of the popular vote, according to Malay Mail, its lowest ever in history. PH won 47.33% of the popular vote, but combined with Warisan in Sabah it is 49.54%, and combined with PH-backed independent Batu MP, 49.87%. (Official figures are yet to be released).

BN has had an incredible history, starting with the Alliance in 1955, and all component parties had a tremendously important role to play back then. But it has suffered a terrible rot from within; dissection and examination is required for real reform to make itself credible again in the future.

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