Can Anwar Ibrahim be appointed as PM without a majority?

By New Sin Yew

Political developments in Malaysia are unfolding very quickly (but in such an anticlimactic manner). It is tough to provide any sort of analysis.

Notwithstanding, the situation has thrown up too many unprecedented scenarios to ignore. One such scenario relates to the title of this post. Let’s see how this can pan out.

Article 43(2) of the Federal Constitution says the Yang di-Pertuan Agong (YDPA) “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.”

This means that a Member of Parliament (MP) must have the votes of at least 112 MPs out of a total of 222 in order to be appointed as the Prime Minister (PM).

The votes are usually tested through a vote of confidence/no-confidence in Parliament, or through the passing of the budget. This is the convention under a Westminster system.

Since the Perak constitutional crisis, the confidence of the House could also be tested outside of Parliament through statutory declarations (as ruled by the Court of Appeal and upheld by the Federal Court in 2010) and most recently, through interviews with the YDPA. This is not the convention.
At this juncture, based on media reports, we can roughly tabulate that:

• Barisan Nasional (BN). Parti Islam Se-Malaysia (PAS) voted for fresh elections – 60 votes
• Parti Keadilan Rakyat (PKR), Democratic Action Party (DAP), Parti Amanah Negara (AMANAH) voted for Anwar as the PM – 92 votes
• Parti Pribumi Bersatu Malaysia (BERSATU), Gabungan Parti Sarawak (GPS), Parti Warisan Sabah (WARISAN), Azmin’s Camp voted for Mahathir as the PM – 64 votes

As it stands, no one can say that they command the confidence of the majority in Parliament (i.e. 112 or more), though Anwar is the front runner.

Can he still be PM? The answer is yes. The YDPA can appoint Anwar because he is most likely to command the confidence of the majority of the MPs. Anwar would then have to test this confidence through a confidence/no-confidence/budget vote in Parliament. If that fails, then Anwar must tender his resignation to the YDPA
.
Anwar would then have two options. The first option is to advise the YDPA to dissolve Parliament. If that happens, we will have a fresh General Election.

The second option is to allow someone else to attempt to form the government if that person is able to command the confidence of the majority in Parliament; it could be anyone from the 222 MPs.

From the latest developments this evening, it seems that Mahathir has ceased to command the confidence of the majority.

Anwar, being the leader of the largest coalition, should be given the opportunity to form the government for now, even if it is a minority government.

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References:
(1) https://www.thestar.com.my/news/nation/2020/02/25/barisan-national-pas-call-for-dissolution-of-parliament-fresh-elections
(2) https://www.malaymail.com/news/malaysia/2020/02/26/pakatan-confirms-naming-anwar-to-be-pm/1841199
(3) https://dayakdaily.com/all-18-gps-mps-express-their-support-for-tun-m-before-the-king/
(4) https://www.nst.com.my/news/politics/2020/02/568625/warisan-stands-behind-dr-m-remains-focused-sabahs-interests
(5) https://www.nst.com.my/news/politics/2020/02/569288/azmin-and-co-back-dr-mahathir-8th-prime-minister
(6) https://www.thestar.com.my/news/nation/2020/02/26/bersatu-pledge-support-for-dr-m-as-pm

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