Perikatan Nasional a ‘frontdoor’ government

Jahaberdeen M. Yunoos, The Star

I KEEP hearing the phrase “backdoor government” in the past weeks, even by lawyers who are expected to know better. When lawyers do this, it is either honest ignorance or intellectual dishonesty clouded by partisan prejudice.

Some claim that the current government is formed through the “backdoor” and hence, a shame to democracy. How so?

Let us look at the political facts.

Firstly, there is now a government that calls itself “Perikatan Nasional”. How was this government formed?

One legitimate answer could be: exactly how the previous Pakatan Harapan government was formed by virtue of our Federal Constitution.

Let me break this down. In other words, this Perikatan government was formed within the democratic process through the “front door” by the Yang di-Pertuan Agong through his Majesty’s exercise of his constitutional duties.

When the 14th general elections were over, the next democratic step to take was the formation of a Cabinet to form the government. We need a Cabinet of ministers to govern the Federal Government. The Cabinet Ministers will come from the elected members of Parliament or from the Senate. Parliament has 222 members of Parliament from various political parties and possibly independents.

It is from these 222 members of parliament that one person will emerge as the Prime Minister.

It is very important to appoint this one Prime Minister as he is the one who will be advising the King on the formation of the Cabinet.

After GE14, Tun Dr Mahathir Mohamad was appointed as the Prime Minister by the then Yang di-Pertuan Agong because in his Majesty’s judgement, Tun Dr Mahathir Mohamad was “likely to command the confidence of the majority of the members of that house” (Article 43(2) of the Federal Constitution). As we have seen, the discretion to appoint Tun Dr Mahathir was exercised correctly since there was no vote of no confidence passed against Tun Dr Mahathir in parliament in the past 22 months.

It did not matter that Tun Dr Mahathir was a candidate from a party with fewer members of parliament than DAP or PKR. If you recall, PPBM had only about 13 members of Parliament in the beginning before some UMNO members joined them. Anyway, what mattered was whether or not he had the confidence of the majority of the members of Parliament and not the number of members of parliament his own party had.

This is an important point in our Parliamentary democracy that citizens should understand.

Once Tun Dr Mahathir became the Prime Minister, he then advised the King on who should be appointed to his Cabinet and thus formed what came to be known as the “Pakatan Harapan government”. However, on Feb 24, 2020, the Pakatan Harapan government collapsed when Dr Mahathir resigned as prime minister.

Under our system of parliamentary democracy, when the prime minister resigns, his cabinet has to “resign” to pave the way for a new prime minister and a new cabinet.

Hence, when the prime minister resigned and there is therefore no more “political government”, the King immediately assumes a constitutional duty to exercise his executive authority which is vested in him and exercisable by him subject to the provisions of the Constitution (Article 39).

This is what we read from the media, where the King met with the members of Parliament to ascertain for himself who among the 222 members of Parliament command the confidence of the majority of the MPs to be appointed as Prime Minister.

This is a very urgent task for the King, to immediately “form a government” in accordance with the Constitution.

What happens if, in his majesty’s view, there is no prime minister candidate who commands the confidence of the majority of the members of Parliament?

There are differing views on this. My own opinion is that the better interpretation is that Article 55(2) of the Constitution allows the YDPA to dissolve parliament paving the way for fresh elections.

This is of course the more expensive and laborious option, especially considering that we are in the midst of the Covid-19 virus outbreak.

Hence, when Tun Dr Mahathir resigned without advising the King to dissolve Parliament, he had to urgently and judiciously consider the options under the Constitution.

Having met with all the members of parliament, the King formed the judgement that Tan Sri Muhyiddin Yassin is likely to command the confidence of the majority of the members of parliament and therefore appointed him as the 8th Prime Minister.

Having done so, the King then appointed the Cabinet members as advised by the 8th Prime Minster in accordance with article 43(2) of the federal Constitution.

From the foregoing explanations, it should be clear the current government popularly called the “Perikatan Nasional” was formed in accordance with the constitution and the rule of law in this country. Democracy as it exists in this country, whether we like it not, was at play here. The sitting of parliament has been adjourned to May 18 and if there is no vote of no confidence from the majority of the members of Parliament, then it would mean that this government indeed does have the confidence of the majority of the members. Otherwise, this government will collapse in May as per the rule of law. In the context of our discussion here, that is all that matters in our current system of parliamentary democracy – how the majority of the 222 members of Parliament think and act.

We may recall that when David Cameron wanted to resign mid-stream as the Prime Minister of United Kingdom in 2016, the Conservative party was able to identify Theresa May as their next candidate who would command confidence of the majority of their members of parliament.

Only after this exercise was done did David Cameron tender his resignation to the Queen.

This wasn’t the case here. Tun Dr Mahathir suddenly resigned without any clear candidate emerging as to who had the confidence of the majority.

I would urge responsible members of the civil society to continue to educate members of the public on the importance of the integrity and credibility of the candidates the vote into parliament. They are the ones who are going to decide who becomes prime minster and what kind of government is formed in accordance with the rule of law. Educate the public on how the constitution works on the formation of the political government instead of screaming “backdoor government”. Leave that to politicians. The rakyat deserves better and expects intellectual honesty from members of the civil society.

The writer is the founder of Rapera Movement, a movement that encourages thinking and compassion among the citizens.