SINCE independence, Malaysia has never had a government in power apart from the Barisan Nasional (BN), or its earlier manifestation, the Alliance. In this 13th general election since 1957 (GE13), what would happen if a new government in the form of the Pakatan Rakyat (PR) coalition is voted into power? How does the transfer of power happen? And what conventions determine the swearing in of a new prime minister, who will presumably be Datuk Seri Anwar Ibrahim, should PR capture Putrajaya in GE13? The Nut Graph asks constitutional lawyer Tommy Thomas.
TNG: After the elections are over, how does the transfer of power happen should a new government be voted in?
We can expect the Yang di-Pertuan Agong and his palace advisers to be following the results of the general election like the rest of Malaysia. Once the results are confirmed that the PR has won the elections, say, sometime in the night on 5 May, the palace will have to invite caretaker Prime Minister Datuk Seri Najib Razak for an audience with the Agong to tender his resignation. This can take place as early as the morning of 6 May. He must tender his resignation to the Agong in the palace because until he does so, there is no vacancy for the Agong to appoint a new prime minister.
At the same time, the palace will also invite Anwar to have an audience with the monarch on the same morning, after Najib has left. The Agong will then invite Anwar to be the new prime minister and to form a new government. Anwar will then be sworn in in a ceremony steeped in Malay tradition, which will be broadcasted live on TV, as in the past.
The convention is that the monarch has to invite the person who, in his judgement, commands the confidence of the majority of the Dewan Rakyat, for an audience on the morning after the polls. Politicians and their supporters cannot simply turn up at the palace without such an invitation.
What are some of the conventions that will ensure a seamless and peaceful transfer of power?
The transfer of power must be carried out by independent state agencies and civil servants. These would include all the top civil servants at the federal level, the secretary to the government, all ministry secretary-generals, the police, the armed forces, and the palace administration. They are all meant to be neutral. They must respect the will of the people at the polls.
For example, if it is apparent that the PR is winning, you would expect the police to have contingency plans to ferry Anwar to the palace and provide him with protection because he would be the prime minister-in-waiting.
The same process is replicated at the state level with regard to the chief minister or menteri besar’s position. This is because all our state constitutions are written in nearly the same way as the Federal Constitution with regard to the appointment of the head of government by the Agong, sultan or governor.
How is the transfer of power done in other mature democracies such as the UK?
In the UK, in the last week before the polling date, a body of civil servants arrange to pack up the caretaker prime minister’s personal belongings at 10 Downing Street and to find the premier a hotel. They will also find out where the leader of the opposition is staying.
Once the results are confirmed on the night of the polls, if there is a change in government, the outgoing prime minister will leave the official residence and check into a hotel. The next morning, the outgoing prime minister will see the Queen and resign. The incoming prime minister will already be outside 10 Downing Street holding his or her first press conference.
So there are actually two sets of movers on standby. The point in the UK is, the new prime minister must already be in residence and meeting people as the premier from that morning itself.
The entire process is managed by the civil service and paid for by taxpayers. It’s all neutral and above politics. That’s how professional they are. Similar conventions are adopted in India, Australia and Canada, and there’s no reason why they shouldn’t be adopted here as well.
When in our history has the transfer of power not been smooth and peaceful?
In Sabah in 1985. After the state elections, Tun Mustapha Harun from the United Sabah National Organisation (Usno) and his allies from Berjaya ran to the governor’s residence to have him sworn in at 4am as the chief minister. He was removed on the same day later because the appointment was illegal. Instead, the head of Parti Bersatu Sabah (PBS), Tan Sri Joseph Pairin Kitingan, was sworn in as chief minister.
Mustapha filed an injunction against Governor Tun Mohd Adnan Robert and Pairin. In court, the judge said that among others, Mustapha’s swearing-in was null and void because the governor was under pressure and was threatened to appoint Mustapha. This principle would apply at the federal level to the Agong. The head of state is entitled constitutionally to exercise judgement quietly, calmly, freely, independently and impartially. No pressure or threat must be used to influence the head of state. After all, this is the monarch’s most important function – appointing the new prime minister.
During a transition period before the new prime minister, chief minister or menteri besar is sworn in, who is in charge of or controls government resources, properties, documents, etc?
The civil servants are supposed to be looking after and protecting these items. What happened in Selangor after the 2008 elections when state government documents were destroyed was unlawful. The question is who gave them instructions to do so? If it was the politicians who had lost, then these politicians were no longer in a position to give out instructions to the civil service, as they had just been defeated at the polls.
If it was the civil servants who took it upon themselves without instruction to destroy the documents, they broke the law because the documents belong to the state.
What happens in the event of a hung Parliament, or state assembly?
At the federal level, as caretaker prime minister, Najib can remain temporarily in office. If he doesn’t resign, the Agong cannot appoint a new prime minister.
Over the next several days after the polls, both coalitions will try to strengthen their respective numbers in the Dewan Rakyat through crossovers and coalition building. Throughout this period, the Agong should not participate, directly or indirectly, in this process. The monarch must let the politicians sort things out themselves so that he cannot be accused of taking sides. The palace must be seen to be above party politics.
At some point after all the political negotiations have concluded, the leader of one of the coalitions may say, “I have the majority support of the House.” And then the Agong would say, “I need evidence to satisfy myself of the numbers.” This evidence can be letters signed by the elected Members of Parliament (MPs) or the Agong can ask for these MPs to be presented to the palace.
The Agong may also conditionally appoint a new prime minister and direct the premier to call for Parliament to sit as soon as possible – within days – so that a confidence motion for the newly appointed prime minister can be voted on in the Dewan Rakyat. If the vote fails, the Agong must appoint somebody else and test the matter of confidence again in the House. This could go on for a while.
And as a last resort if none of these attempts work, a prime minister can recommend to the Agong that Parliament should be dissolved and fresh elections held. The monarch has the discretion to refuse and to instruct the political parties to continue to try to reach a compromise. A second general election would be the last resort.
What’s important to remember is that even with a hung Parliament, life goes on normally. In the UK in 2010, during the five days of negotiation before the Tory-Liberal Democrat coalition government was formed, everything went on calmly and normally. Hung parliaments are also a norm in countries like Japan and Italy where there is no government for weeks, and life goes on.
In fact, there are more examples where governments are formed post-election, rather than pre-election like in Malaysia. And if there is a hung Parliament after GE13, what is needed is for the supporters of both coalitions to act in a patient manner, to behave maturely and peacefully. There should be no taunting, gloating and demonstrations.
At the same time, all state agencies must remain neutral and independent. The only people who should be negotiating at this stage would be the politicians. Such negotiations should also be secret and confidential. Only the outcome should be made public.
 In that election, held on 22 April 1985, PBS won 25 seats, Usno 16 and the incumbent Berjaya six only.
 The judgment is available in Tun Mustapha Harun v Tun Mohd Adnan Robert and Datuk Joseph Pairin Kitingan  2 MLJ 420.
 Riots erupted in Kota Kinabalu in March 1986 just as the court was about to make its judgment. Demonstrators, led by Usno and Berjaya, took to the streets to protest Pairin’s appointment. A majority of the demonstrators were impoverished and undocumented Filipino Muslims who were paid to demonstrate. Bombs were detonated and five people died. For more, watch The Silent Riot.