KPUM Explains… What’s Going on with the Government?

The events of the past 48 hours have upended Malaysian politics and left many puzzled over what the current state of the government is, and where the country is headed to next. Fuelled by coffee (and a shared sense of disbelief), our writers are here to break down precisely what’s happening, and the legal basis (if any!) for it.

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Some Useful Vocab

We will be using the terms House of Representatives, Parliament and Dewan Rakyat interchangeably. In the context of this Article, they are all referring to the same thing.

We also use some abbreviations:

PM = Prime Minister

MP = Member of Parliament

YdPA/Agong/King = Yang di-Pertuan Agong

What Just Happened?

In short:

Parti Pribumi Bersatu Malaysia (BERSATU), which has 26 MPs, and 11 MPs from the Parti Keadilan Rakyat (PKR) under former Minister of Economic Affairs Azmin Ali have split from the previously-ruling Pakatan Harapan (PH) coalition.

• Why is this important? In order to form a government, the governing coalition must be able to command a simple majority in Parliament of 112 seats. With the defections, the Pakatan Harapan coalition only has 102 seats – leading to a hung parliament.^[1]

Prime Minister Tun Dr. Mahathir Mohamad has also resigned as Prime Minister and as Chairman of BERSATU. Despite his resignation as Prime Minister of the PH government being accepted, the Yang di-Pertuan Agong has maintained Tun Dr. Mahathir as an interim Prime Minister.

• Why is this important? In line with the breakdown of the PH coalition, the Prime Minister advised the YdPA to revoke the appointment of his Cabinet Ministers (who were originally appointed by the Agong on the advice of the Prime Minister’s advice under Art. 43(1)(b) of the Constitution) as part of his interim caretaker role. As such, there are no longer any PH Cabinet Ministers.^{[2] [3]} Although the Cabinet as a body still exists, it is currently only comprised of the Prime Minister who is ex officio its presiding officer.

As interim Prime Minister, Tun Dr. Mahathir will assume a caretaker role until a new government is formed,^[4] or until he loses the confidence of a majority of the members of the Dewan Rakyat (which is currently on recess until 8 March 2020).^[5] Given the unprecedented nature of the current situation, the exact nature of the operative caretaker convention is unclear, but it would be safe to assume that they are similar to those applicable during period in which Parliament is dissolved for a general election.

The remaining component parties of Pakatan Harapan – the Democratic Action Party (DAP), PKR, and Amanah – have all pledged their support to Tun Dr. Mahathir Mohamad, and will nominate him as the Prime Minister again. Parti Warisan Sabah (Warisan), which was the governing ally of Pakatan Harapan in Sabah along with the United Progressive Kinabalu Organisation (UPKO), has also thrown its weight behind the former Prime Minister, whilst remaining coy about supporting Pakatan Harapan itself. The stance of Gabungan Parti Sarawak (GPS) remains unclear.

• Why is this important? East Malaysian MPs will likely play a ‘kingmaker’ role in the formation of any coalition which will come to power; between them, Warisan, UPKO, and GPS have 28 MPs which, in the context of the fragmented party landscape, makes gaining their support essential for a majority. A more detailed breakdown of the number of MPs of each faction (and some potential coalitions that could arise) can be found here.

So…What Now?

In order to form a government, Article 43(2) of the Federal Constitution states that:

“(2) The Cabinet shall be appointed as follows, that is to say:

(a) the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House; and

(…)”

In simple terms, the YdPA appoints as Prime Minister someone who is “is likely to command the confidence of the majority of [the Dewan Rakyat].” At the moment, there appears to be no clear majority in the Dewan Rakyat (112 seats) formed of the remaining members of the Pakatan Harapan or of the various members of the opposition, resulting in a hung parliament. This means that the various political parties will have to negotiate amongst themselves to form a new coalition. It is likely that once the YdPA is convinced that such a majority exists, Tun Dr. Mahathir will resign as interim Prime Minister (unless he has been made to resign due to a loss of confidence of the Dewan Rakyat) in order for the new head of government to be appointed.

But what if none of the parties can come to an agreement?

Although the Federal Constitution does not provide any straightforward guidance, there are two possible outcomes:

Business as usual

The current caretaker government will continue to exist until the interim Prime Minister is defeated by a vote of no confidence on the floor of the Dewan Rakyat.^[6] The Constitution does not clearly indicate whether the YdPA may unilaterally dismiss a Prime Minister who has not lost the confidence of the Dewan Rakyat.

A minority government

Another possible outcome might be that the Agong chooses to install a minority government, consisting of a coalition that does not command a majority in Parliament, which would need to rely on other MPs for votes in the Dewan Rakyat to ‘survive no-confidence motions, pass budgets and secure essential legislation’.^[7] Oftentimes however, minority governments by their very nature have proven to be weak and unstable. A notable recent exception was the 2017-19 Theresa May government, which was a minority government operating on a ‘confidence-and-supply’ agreement between the Conservative and Unionist Party and the Democratic Unionist Party.

Can the Agong unilaterally call for a general election?

In short, no. While Article 55(2) of the Federal Constitution grants the Agong the power to dissolve Parliament, this is qualified by Article 40:

“(1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.

(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.

(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:

(a) the appointment of a Prime Minister;

(b) the withholding of consent to a request for the dissolution of Parliament;

(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting,

and in any other case mentioned in this Constitution.”

Hence, whilst the Agong has the ability to withhold consent to the dissolution of Parliament, His Majesty may therefore only dissolve Parliament upon the advice of the Prime Minister. At the time of writing, Tun Dr. Mahathir has not made such a request, and the Agong is therefore obliged to allow the various political parties to attempt to form a simple majority in Parliament.

It may be possible that, in the case that Tun Dr. Mahathir loses the confidence of the Dewan Rakyat and where there is no other individual who is likely to command it under any political arrangement, there would be no individual who the YdPA may appoint as Prime Minister and, as such, no ability for a general election to be called. This possibility, although possible as a result of the drafting of the Constitution, is exceedingly remote given that parties would more likely agree to have confidence in a Prime Minister solely for the purpose of calling a general election.

Where To From Here?

The political parties will likely spend the next few days trying to gather their support to see whether they can meet the simple majority requirement in Parliament, and if successful, the YdPA will appoint the eighth Malaysian Prime Minister to head the Cabinet and form a new government. Should they fail to do so, the interim prime minister may advise the YdPA to dissolve Parliament and call for a general election – in which case, Malaysians (i.e. You!) will be able to cast your votes to break the deadlock and give a mandate to one of the coalitions formed.

Whilst this article has sought to deal with issues at the federal level, it is also important to note that the various state governments may switch political sides as a result of these defections.

As we wait to see what happens next, our writers are off to get   Stick around and keep an eye on this page for more bite-sized information coming your way.

 

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^[1] ‘Harapan gov’t collapses but opponents have no clear majority either‘. (Malaysiakini, 24 February 2020). <https://www.malaysiakini.com/news/512034>. Accessed 24 February 2020.

^[2] ‘Kenyataan Media: Kedudukan Anggota Pentadbiran Berikutan Peletakan Jawatan YAB Perdana Menteri Malaysia’.(Jabatan Penerangan, 24 February 2020). <https://twitter.com/JPenerangan/status/1231933316292460544>. Accessed 24 February 2020.

^[3] ‘Pakatan govt automatically dissolved once PM resigned, say analysts’. (The Malay Mail Online, 24 February 2020).

<https://www.malaymail.com/amp/news/malaysia/2020/02/24/pakatan-govt-automatically-dissolved-once-pm-resigned-say-analysts/1840516?__twitter_impression=true>. Accessed 24 February 2020.

^[4] ‘Dr M to helm nation until new PM appointed, cabinet formed’. (Malaysiakini, 24 February 2020).

<https://www.malaysiakini.com/news/512083>. Accessed 24 February 2020.

^[5] ‘House of Representatives Calendar’ <https://www.parlimen.gov.my/takwim-dewan-rakyat.html>. Accessed 24 February 2020.

^[6] Ibid.

^[7] ‘Governing without a majority’. (The Star, 21 March 2012). <https://www.thestar.com.my/opinion/columnists/reflecting-on-the-law/2012/03/21/governing-without-a-majority/>. Accessed 24 February 2020.

Orang Asli Forced to Scavenge, Jawi Signage Challenged, and Drug Laws… Human Rights Round-up (21/02/20)

International

1. Australia’s highest court ruled indigenous people cannot be deported

(OpenCanada.org)

In a landmark ruling, Australia’s highest court ruled two Indigenous men, even though born overseas and never applied for citizenship, cannot be deported. Both men had been living in Australia with permanent residency visas, but their visas were revoked due to conviction of crimes with prison sentences of more than a year.

Australia’s conservative government had sought to treat the men as foreigners and deport them to Papua New Guinea and New Zealand. However, in a 4-3 ruling, Australia’s High Court said the men must be treated like citizens and can therefore remain.

The men’s lawyer said this case is not merely about citizenship, it is significant for Aboriginal Australians – “it’s about who belongs here, who is an Australian national and who is a part of the Australian community”.

Local

1. Rompin Orang Asli forced to scavenge to be given jobs and infrastructures

(SC Shekar)

#OrangAsli

Last Friday, photos of Orang Asli children scavenging on heaps of garbage was published by the Malay Mail. This prompted Senator P Waythamoorthy from the Prime Minister Department to look into the issue. After visiting the site in Rompin, Pahang, he proposed to gazette the land their village is in, Kampung Bukit Biru, as an Orang Asli settlement for the Jakun community.

It is discovered that some Orang Asli had been living near the dumpsite despite the absence of running water or sanitation because they could earn up to RM700 a month through scavenging. To address this, Mr Waythamoorthy said the Orang Asli Development Department (Jakoa) would temporarily provide clean water, and a company will be sought to install a solar power system pending a permanent solution.

In light of the health concerns, the villagers will be prohibited from scavenging. They will be provided with alternative jobs in agriculture, landfill work, fish rearing etc.

2. Suhakam inquiry found missing activist Joshua Hilmy was investigated by religious authorities

(Wikipedia)

#EnforcedDisappearance #SUHAKAM #FreedomofReligion

At the Human Rights Commission of Malaysia (Suhakam) public inquiry, witness Peter Pormannan testified that the missing activist previously informed him that he was wanted by an unnamed religious authority. When asked during the inquiry if Joshua was investigated or threatened, Peter elaborated that Joshua did not say he was being threatened, simply being investigated. He recounted that Joshua had told him that the investigation was because he wanted to alter the religious status on his MyKad from Muslim to Christian.

3. Kuantan traders challenge state government & town council over Jawi signage

(Filepic)

#Jawi #Art8EqualityClause

Three businessmen sought judicial review against the Kuantan Municipal Council and the Pahang government to revoke the use of Jawi on signboards at premises. The order instructed all business premises and road signs to use Jawi, with the script in the same size to the Roman letters.

The plaintiffs want a declaration that the power of the local authority to subject licences with conditions (Section 107(2) of the Local Government Act 1976) is in breach of the equality clause under Article 8 of the Federal Constitution. They also claimed that forcing the use of Jawi will be against Article 152 of the Federal Constitution (freedom to use languages other than the national language) and Section 9 of National Language Act 1963/67 (script of national language).

4. Government to review drug laws

(Poskod.My)

#DrugsLaw #DeathPenalty

After launching the National Anti-Drug Month, Prime Minister Tun Dr Mahathir Mohamad said that the government will review the drugs law in Malaysia, particularly the distribution and abuse of drugs. He said that there were comments on whether the mandatory death penalty for possessing a certain amount of drugs is too harsh and ineffective as a deterrent. The government may amend the law so those found guilty will be sentenced to life imprisonment instead.

Furthermore, he also mentioned that the government will study if the claims are true and are there other ways to prevent the usage and trafficking of drugs. According to his speech, there are approximately 404 drug and substance abusers and addicts for every 100,000 people. There is also an increase of 23.2% of drug abusers and addicts in 2019 compared to 2018.

Orang Asli Campaign 2020 Infographics

Over the past five months, ASASI has condensed pages of research into a structured and concise infographic as part of our Orang Asal campaign which aims to introduce students and spirited Malaysians to the issues facing our fellow countrymen. We address 4 issues as part of this campaign (which are by no means an exhaustive list of issues.

Take a look!

Disclaimer: While we hope that you are inspired and enlightened by every bit of knowledge available, these infographics should in no case be constituted as legal advice.

1) Who are the Orang Asal? (Photos 1-2)

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2) The laws governing and protecting the Orang Asal (Photos 3-4)

3

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3) Orang Asal and Development (Photos 5-6)

5

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4) Orang Asal and Climate Change (Photos 7-10)

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An Explainer on The Gambia v Myanmar at the International Court of Justice

Written by Jefferi Hamzah Sendut

Credit: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ

In an ongoing case at the International Court of Justice (ICJ), The Gambia is suing (‘bringing a case against’) Myanmar, accusing Myanmar of committing genocide against its Rohingya population. This post outlines how the case has been brought to the ICJ (see also previous analysis of the case’s route to the ICJ, for example here, here and here).

The ICJ is the UN’s top court, composed of 15 independent judges. Although the ICJ may issue formally non-binding ‘advisory opinions’, its primary role is to make binding judgments to settle disputes between countries, referred to as ‘States’ in legal terminology. The ICJ only settles disputes between States – individuals cannot bring a case to the ICJ themselves, or have a case brought against them. This aspect of the ICJ’s role is the focus of this post. 

The importance of consent

The ICJ can only settle disputes between States with their consent. Without the consent of the States involved, the ICJ will have no power, or ‘jurisdiction’, to decide a case. This is a key difference between the ICJ’s role, and the role of national courts, which have compulsory jurisdiction. The ICJ must first establish that it has jurisdiction before it can consider the substance, or ‘merits’, of a case.

State consent is expressed in three main ways. First, consent may be expressed when two States agree to bring a specific dispute to the ICJ, making a ‘special agreement’ to do so. This occurred between Malaysia and Singapore in the Pedra Branca/Pulau Batu Puteh case. 

Second, consent may be expressed through the ICJ’s ‘optional clause’ system. States can voluntarily declare that they consent to the ICJ settling certain kinds of disputes involving them. A declaring State can subsequently bring a case against, or have one brought against it, by another State which has made a corresponding declaration. The Aerial Incident case between Pakistan and India illustrates how the optional clause system operates. The ICJ was unable to make a final merits judgment after Pakistan brought a case against India, because although both States made an optional clause declaration, the declarations did not correspond. The text of India’s declaration showed that unlike Pakistan, it had not consented to the ICJ settling disputes between it and the other Commonwealth States. 

Third, a State may consent to the ICJ’s jurisdiction through a ‘compromissory clause’ included in an agreement, or ‘treaty’, between it and other States. When States make treaties with each other, they may include a clause in which they agree to submit to the ICJ any future disputes relating to the treaty. These clauses are known as compromissory clauses. This method of expressing consent to the ICJ’s jurisdiction differs from the making of special agreements, because the main content of the treaty involved will concern a general subject matter. These are not agreements relating to a specific dispute, made after a dispute has already arisen. 

The compromissory clause in the Genocide Convention 1948 treaty is what enabled the current case between The Gambia and Myanmar. The main content of the Genocide Convention, which Myanmar committed to in 1956, concerns rules on the prevention and punishment of genocide. One of its clauses states that the ICJ will settle related disputes. In bringing a case against Myanmar, The Gambia is arguing that a dispute exists between it and Myanmar relating to commitments under the treaty, and that Myanmar has consented to the ICJ settling this dispute. The case at the ICJ is hence distinct from a criminal trial of an individual which would occur at the International Criminal Court, for instance. 

Linked to this, The Gambia must formally establish the existence of a dispute between it and Myanmar to enable it to use the Genocide Convention’s compromissory clause. A dispute would require The Gambia and Myanmar to have ‘clearly opposite views’ on the fulfilment of legal obligations. The Gambia has sought to show this using UN reports, both Gambian and Myanmarese statements, and a note sent by it to Myanmar. Although traditionally considered a low bar to clear, The Gambia will be wary of its importance after the 2016 Marshall Islands cases, where the ICJ threw cases out for the first time due to a technical lack of a dispute. 

The requirement of standing 

The Gambia must additionally show it has the standing to bring its case against Myanmar, meaning it has a ‘legal right or interest’ in the subject matter of the case. While The Gambia itself has not been directly ‘injured’ by Myanmar’s persecution of the Rohingya within Myanmarese territory, it has argued that the Genocide Convention’s obligations are ‘erga omnes partes’ obligations. The Gambia is arguing that like the UN Torture Convention, all States committed to the Genocide Convention have an interest in the fulfilment of its obligations, regardless of whether they are injured. 

Conclusion 

In a recent decision in The Gambia v Myanmar case, the ICJ provisionally ordered Myanmar to ensure it respects the Genocide Convention while the case continues. What this means is that the ICJ accepted that The Gambia’s arguments are strong enough to show there is an urgent risk of irreparable harm to relevant legal interests which the ICJ may protect. The ICJ has not yet definitively decided whether it has jurisdiction to decide on the merits of the case, nor has it made a merits decision that Myanmar has committed genocide. Nevertheless, the case is one to watch, not only because of its implications for the Rohingya people, but also as a demonstration of the ICJ’s dispute settlement role in an important context.

 

Writer Profile

Jefferi Hamzah Sendut is a Master of Laws Candidate at the London School of Economics and Political Science. He holds a law degree from St John’s College, University of Cambridge. His research interests include international dispute settlement, international human rights law, and international investment law.