The news of the day is whether Malaysian government can be formed due to no simple majority winning seats from any of the political party. However, our Federal Constitution does not require a “simple majority” political party in order to form a “government” or to appoint a Prime Minister. Appointment of Prime Minister can be done irrespective of whether any of the existing political party pledge alliance to or form coalition with others.
Article 43(2)(a) of the Federal Constitution requires the YDPA to appoint a Prime Minister “who in his judgment is likely to command the confidence of the majority of the members of that House”.
The definition of “majority” is the largest number (not necessarily more than half of total). There are 2 reasons to support this.
A. Plain and Simple Definition of “Majority”
The term “majority” is not specially defined in the Federal Constitution.
The term is defined in dictionaries as shown below:
· Oxford Learners Dictionaries: “the largest part of a group of people or things.”
· Oxford Languages: “the greater number.”
· Cambridge Dictionary: “the larger number or part of something; in an election, the difference in the number of votes between the winning person or group and the one that comes second:” Example: “The Democratic candidate won by a narrow/large majority.”
“The term ‘surname’ is not defined under the BRDA. Hence by the rule on statutory interpretation, ordinary word must be given a plain meaning. The following dictionary meanings of this word are instructive:
Oxford Dictionary of Law (6th Ed) :…
Black’s Law Dictionary (10th Ed):…
Concise Oxford English Dictionary (11th Ed, Revised):
Oxford Dictionary and Thesaurus (2nd Ed, 2007):”
Article 43(2) of the Federal Constitution does not further define the word “majority”. As such, the simple and plain meaning of majority (the largest group of people / the greater number) applies.
B. Indication that it is not referring to Simple or Special Majority
Further, if Article 43(2) requires specifically a form of majority that means more than half of total, it would have expressly said so. The Federal Constitution did expressly indicate the term “simple majority” or a special kind of majority in other parts of the constitution, but not in Article 43(2). This indicate that Article 43(2) means mere majority in its plain meaning and not any specific kind of majority.
When the law specifically requires a minimum percentage of majority, it will be expressly stated. For example:
Article 62(3) Federal Constitution: “each House shall, if not unanimous, take its decision by a simple majority of members voting”
Section 291(1) Companies Act 2016: “an ordinary resolution of the members … means a resolution passed by a simple majority of more than half of such members”.
Article 159(3) Federal Constitution: “A Bill for making any amendment to the Constitution … shall not be passed in either House of Parliament unless it has been supported on Second and Third Readings by the votes of not less than two-thirds of the total number of members of that House.
Companies Act 2016, Section 400: “The required majority to approve a proposal for voluntary arrangement in the creditors meeting shall be seventy-five per centum of the total value of creditors”
It is a principle of statutory interpretation that when the Legislature uses different language in the same connection, in different parts of the statute, it is presumed that a different meaning and effect is intended and if different language is used in contiguous provisions it must be presumed to have done so designedly (Refer: Federal Court case of Manokaram a/l Subramaniam v. Kaur a/p Nata Singh [2009] 1 MLJ 21; High Court case of Bar Malaysia v Ketua Pengarah Hasil Dalam Negeri [2018] MLJU 296)
Since "simple majority" and "two-third" majority are expressly used elsewhere, the word "majority" in Article 43(2) simply means majority and nothing else. Majority. The one that commands confidence of the greater number of members.
Therefore, Article 43(2)(a) of the Federal Constitution requires the YDPA to appoint a Prime Minister who in his judgment is likely to command the confidence of the greater number of members of that House. The candidate for Prime Minister does not necessarily need to command confidence of 50% or 75% of the members. 40% could suffice, 30% could suffice, as long as it is the largest group of people / the greater number.
Based on the official results of GE-15:-
Anwar Ibrahim commands the confidence of 81 PH and MUDA members of the House of Representative.
Muhyiddin Yassin commands the confidence of 73 PN and PAS members of that House.
Ismail Sabri Yaakob commands the confidence of 30 BN members of that House.
Abang Johari Openg commands the confidence of around 30 members via Borneo Bloc formed by GPS & GRS.
None of the above have officially announced a further coalition or a pledge of alliance that causes either one to commands the confidence of any more members.
Now, who commands the confidence of the largest group of members of the House of Representative? The person who commands the confidence of 81, 73 or 30 members? The answer is obvious.
There is no reason to delay the appointment of Prime Minister on the excuse that further coalition may be formed pending discussions from the respective political parties. We don’t know how long negotiations can last. We don’t even know if further formation of coalition is happening. Malaysia is not required to wait for political parties to mix and match in expense of vacant posts for Prime Minister and Cabinet of Ministers. The Federal Constitution does not require so. If the Prime Minister cease to have majority confidence in the future, there are procedures in place to tackle this in the Federal Constitution. Therefore, there is no reason to wait.
In a democratic society, majority wins. If the majority fail to win, our democratic system has lost.
20 November 2022
By Chew Yiting