Report on the Malaysian general election of May 2018 and its implications for constitutional law

Andrew Harding

National University of Singapore

On 10 May 2018 six decades of Malaysia’s dominant-coalition rule since independence in 1957 came to an end in yet another of the unexpected election results that we now have to expect. Against all independent predictions, gerrymandering and malapportionment on a scale hardly seen before anywhere, and massive manipulation by the incumbent Barisan Nasional government and the Election Commission, the opposition Pakatan Harapan coalition achieved a parliamentary majority, and, when the dust had settled, control over most of Malaysia’s 13 state government as well. The BN’s share of the vote was reduced from about 47% to about 36%. It had lost almost half of its seats as voters across all communities (Malay, Chinese, Indian and indigenous peoples of Sabah and Sarawak) swept out of power a discredited government that stood accused of kleptocracy the extent of which had never been experienced anywhere, billions of ringgit having gone missing from Malaysia’s ‘1MDB’ sovereign-wealth fund, and large unexplained sums having appeared in the Prime Minister’s, Datuk Seri Najib Tun Razak’s, own bank account. Voters were also motivated by the contrast between the unbridled luxury of political leaders and their own dwindling economic fortunes, resulting amongst other things from an unpopular goods and services tax.

The transition to a new government was as it turned out more easily anticipated than achieved. The day after the election was fraught with contradiction and danger as the opposition leader, former Prime Minister and PH leader Tun Dr Mahathir Mohamad, moved astutely to prevent interference with the constitutional process. He announced his victory at a strategic moment when the official results lagged behind what everyone knew to be the result. He had also taken action earlier to ensure that the military would not go along with any attempt by Najib to proclaim an emergency and remain in power. As the leader of a small party in a four-party coalition, Mahathir had only the stated support of the other party leaders as his title to the office of Prime Minister. The leader of the party with most seats was in fact offered the position by the Yang di-Pertuan Agong (King at the federal level), but she turned it down; this was followed by a letter signed by all PH elected members to the King expressing their support for Mahathir. By this time the official results, which had been unreasonably delayed by officials nervous to sign off on results adverse to a 60-year-old power structure, were available, and representatives of the civil service, the police and the army also visited the King to warn him of the danger to public security if Mahathir were not sworn in straight away. The swearing-in ceremony took place at around 10pm that day (10 May 2018), and the PH took office after a quite extraordinary, tumultuous day of constitutional manoeuvring.

Manoeuvring did not stop there, as two states had a hung assembly. Some mistakes were made in Sabah, where the appointed BN Chief Minister turned out not to have majority support, resulting in a further appointment of the PH leader as CM. It thus appeared the state had two CMs, and the first appointment is being challenged in the courts. The other situation, in Perak, was resolved by the Ruler ascertaining the allegiance of a minor party.

Apart from the encouraging sign that the so-called decline of constitutional democracy is far from evident in Malaysia, these events should give pause for thought for constitutional scholars and constitution-makers in two respects. The first concerns the operation of electoral machinery, and the second concerns conventions around government appointments in a Westminster-style parliamentary system.

On the first issue, it had been stressed by commentators and activists for a long time that the electoral body needs to be separate from the government. In Malaysia the Election Commission comes under the PM’s own department, which has resulted in a voting system so skewed towards the BN’s interests that (I do not wish to labour this discussion with too many statistics), for example, it took on average around 70,000 votes to elect one PH member, but only around 40,000 votes to elect one BN member. Another telling statistic is that the BN won only 7 of the 100 most populous constituencies in a 222-seat legislature.

But it is not just the constituency delimitation that needs to be reformed. The EC acted in many respects to favour the BN. They encouraged young voters to register from early 2018, then refused to allow them to vote in this election even if they had registered as much as five months earlier. They settled on a weekday instead of a weekend for polling day, in contravention of all precedent; this entailed logistical problems for large numbers of voters who had to return to their home town to vote, the exercise of their democratic right depending largely on the good will of their employers. As many as half a million Malaysian voters work in Singapore, and these faced even more difficulties. The EC prohibited parties from using portraits of leaders other than the party president, vice-president and constituency candidate; this worked against the PH as Mahathir was the leader of a small party and the de facto leader of the largest party, Datuk Seri Anwar Ibrahim, was in jail, his wife holding the position of party president. Mahathir’s voice and visibility were critical in swaying Malay voters especially in favour of PH. The EC sent out postal ballots so late that there was inadequate time for overseas voters to return them; many were reduced to touting for home-bound travellers in foreign airports to act as ballot-mules. The PM’s office also applied pressure on the civil aviation authority to have extra domestic flights cancelled to reduce the number of voters able to return home to vote. These are just a few of the measures taken to reduce the turnout or discourage the opposition or the voters. In the event these measures simply made voters even more determined to vote. I have deliberately asked observers to tell me when they realised that something extraordinary was happening. In all cases they referred not to statistics or announcements but to moments when the voters took power into their own hands; for example, my own moment of realisation was when I saw a video of thousands of young voters trapped late at night at the border with Singapore, clapping, cheering and jeering, in their disdain of mere obstacles to voting. Another cited the physical blocking by voters of unmarked cars from entering the compounds of counting stations; another cited seeing elderly voters queuing for hours at polling stations in the intense morning heat.

As the new PH government moves towards institutional reform (and now that they appear to have a two-thirds’ parliamentary majority, perhaps also constitutional reform), it is vital to reform the Election Commission root and branch. It needs to be re-established as an independent body with standard operating procedures and neutral policies and regulations. It should be overseen by a different but similarly independent watchdog, an electoral oversight body. A large policy-making and regulatory bureaucracy cannot oversee itself, any more than a police force can. The system for delimiting constituencies needs to be completely revised and entrenched in the constitution, and based on the fundamental premise of one-voter-one-vote-one-value. As it stands the current system is simply not democratic in any reasonable sense of the term.

On the second issue, the Westminster conventions concerning government appointment are written into both the federal and state constitutions. However, they leave as much room for doubt as to their application as they do in constitutional systems where they are not written. One even more problematical consideration is that in Malaysia there are no anti-party-hopping laws. This makes political fluidity after an election, and indeed at other times too, a continuing problem, as there is no disincentive (and regrettably there is often much incentive) to switching allegiance. In order to avoid the uncertainties that occurred on 10 May 2018, and those that still continue at the state level, a law against party-hopping and bribing of members of the legislature to change sides is very much needed. Beyond that it might be necessary for the Rulers and Governors (the heads of state at state and federal levels) to agree a set of standard operating procedures for the appointment of governments. For example, it is not clear in constitutional law that the first opportunity to form a government in a hung assembly should be given to the party with the most seats. It is also not clear in what circumstances if any the head of the executive can be dismissed or replaced. The Sultan of Perak, having a PhD in political science, would have been aware of the conventions and how they are intended to operate; but one wonders what legal resources were available to the Governor of Sabah in reaching two poor decisions that threw the state into total confusion.

The new government faces many challenges in re-establishing the rule of law and democracy. After some weeks some excellent steps have been taken. Faced with an enormous financial deficit, voters as well as government are coming to terms with the depth, breadth and terrible consequences of the corruption that has bedevilled their country for too long. Many have actually donated sums to a fund designed to reduce the national debt. In this deeply problematic process it is hard to escape the impression that a nation, once seemingly doomed to unending inter-ethnic conflict, has, against all the odds, now been truly built. And it is a nation that intends to adhere to constitutional government and democracy.

Andrew Harding is Professor of Law at the National University of Singapore