The New Nation - Internet Edition

Tengku Ahmad Hazri

On 5 April 2008, the International Movement for a Just World (JUST), organised an in-house forum on 'The 12th Malaysian General Elections: What Now?'. It was the fourth in the JUST In-House Forum series - the first was on 'Religious State or Secular State: What is the Future?', followed by 'State and Religion: Case of Turkey' and the third was on 'Alternatives to Empire'. The forum series began last year and is held on a bi-monthly basis at the JUST office in Petaling Jaya, Selangor, Malaysia. This time, the speakers were legal scholar, Professor Shad Saleem Faruqi who is also a JUST Executive Committee member, and JUST President, political scientist, Professor Chandra Muzaffar. The session was moderated by the Vice-President of JUST, Professor Abdullah al-Ahsan. Professor Shad first explored the legal and constitutional issues that arose from the election while Professor Chandra then tackled the political themes behind it. Here, however, Chandra's presentation will be highlighted first in order for the legal and constitutional issues to be put into context.

The outcome of the recent Malaysian General Election unleashed unprecedented challenges that will critically determine the course of Malaysian politics in the years to come. The closest historical parallel to the recent election that could be found in 1969 Election. Much like the present, in 1969, the Alliance was in a precarious condition in five states - Penang, Kedah, Kelantan, Selangor and Perak. The Alliance lost Penang to the Opposition (Gerakan, was then in the Opposition); retained Kedah but only with a slim majority; failed to recapture Kelantan; had only a two-seat majority in Perak; and was 'deadlocked' in Selangor. But there the similarities end.

Despite the May 13 communal riots that ensued from the 1969 election, a strong leadership emerged with a clear sense of direction. The National Operations Council was set up to deal with the riots; and the National Consultative Council was formed, the legacy of which - such as the New Economic Policy (NEP) and the Rukunegara - has endured to this very day. There was a leadership change no doubt, as Tun Abdul Razak succeeded Tunku Abdul Rahman as the Prime Minister and leader of UMNO and the Alliance. But the party members were united behind him. Indeed, when a constitutional amendment was proposed in 1971, even the major opposition parties (barring the DAP), PAS and Gerakan, lent their endorsement. It was the only moment in Malaysian history when the ruling coalition had to rely on opposition votes to effectuate a constitutional amendment. Shortly afterwards, PAS, Gerakan and the Perak-based Peoples' Progressive Party (PPP) even joined the Alliance in an expanded coalition called the Barisan Nasional (BN).

But today, things are not quite the same, and Chandra did not hesitate to argue that Malaysia is in fact moving into "unchartered territory." There are no doubt positive developments that can be discerned from the recent election. He noted, in particular, how this election had witnessed the greatest empowerment of voters. The sentiment that the voters have power and significance to bring about change in the country has gained momentum and become widespread. The BN, for long assured of its legitimacy and credentials in the eyes of the electorate, had at last been jolted. Decades of tenure in power that is fertile breeding ground for complacency, arrogance and abuse of power has now been challenged with the rise of a new political force to be reckoned with. On the other side of the game, PAS and the DAP, two parties that have always been each other's "other" and came together only once in an informal political pact in the 1999 General Election, are now compelled to co-operate at the state level in Perak and Selangor. Beyond these, however, the political climate remains riddled with uncertainties and the road ahead fraught with ambiguities. This sense of ambivalence is especially pronounced within UMNO, the dominant party in the ruling BN coalition, which is severely affected by the election outcome.

With the largest number of seats in Parliament (78), UMNO of course, remains the most powerful political party in the country and is easily the strongest Malay party around. This notwithstanding, the internal rift within the party is equally noteworthy: sieged from within and without, what UMNO is undergoing presently is nothing less than a "crisis of confidence." Faith in the leadership has dwindled and the overall sense of collective unity within the party is showing signs of erosion. Long before the election, former UMNO President Tun Dr. Mahathir Mohamad was already launching his ferocious attacks against Datuk Seri Abdullah Badawi. And right after the election, Datuk Mukhriz Mahathir asked Abdullah to step down. To a question by a forum participant on the significance of Datuk Seri Hishamuddin Hussein's decision to quit as UMNO Youth Chief, Chandra considered the possibility that Hishamuddin was perhaps allowing forces against Khairy Jamaluddin to gather support and this could impact upon Abdullah Badawi, especially in the state of Johor where the grassroot movement against him is quite strong.

While the legal imperative may work in his favour (he still commands the support of the majority of parliamentarians), moral responsibility dictates that Abdullah Badawi should have stepped down on the night of the verdict. Yet, he is holding on tenaciously to power. And this could have immense repercussions upon the other component parties of the BN.

Reforms within the BN parties is probably long overdue, yet if UMNO, as the backbone of the coalition, fails to regain credibility, MCA and MIC in particular will have a hard time ahead. In Sabah and Sarawak, the BN performed remarkably well. This could, nonetheless, hint at a new direction in Malaysian politics, for, having lost its forte in the Peninsula, BN's victory appears to be secured thanks to the loyalty of the East Malaysian voters. Emboldened by their new-found significance in the coalition, Sabah and Sarawak may press for more concessions from the BN-led Federal Government. Sabah's track record as the state with the largest number of party crossovers would have been reason enough for the Centre to think twice before declining their requests. And yet, Chandra noted, Abdullah Badawi had indicated that it is not possible to accommodate all their demands. In Sarawak at least, fears of MP crossovers are placated by the fact that the leadership under Tan Sri Abdul Taib Mahmud has in the past been able to keep party unity relatively intact. This, in spite of the diversity of the parties that make up the BN coalition in Sarawak - PPB, SUPP, PRS and SPDP.

PKR. As the BN is entangled in this web of crises and calamities, it is not difficult to fathom who the beneficiaries would be. In his analysis of the state of the Opposition post-election, Chandra observed how the PKR has emerged as the largest party in the Pakatan Rakyat with 31 seats in Parliament. Its ability to penetrate into and win in 'mixed constituencies' (those with 35%-65% Malay voters), for long under BN's influence, is unprecedented. Interestingly, this was accomplished more with the support of the Chinese and Indian votes than with the Malay votes. 'Swing votes' were highest among the Indians (35%), followed by the Chinese (30%) and Malays (5%). Although BN retains most of the seats in mixed constituencies, its fortress there had been seriously undermined.

Ahead of the PKR however, lie challenges that will determine its ability to garner more than 'protest votes' from the people generally. Ideological cohesion, to begin with, seems to be lacking in PKR, with liberal democrats, socialists and Islamic advocates, fighting under the same banner. More importantly, the more sensitive issues of ethnicity and religion will continue to be the factor that will either unite or divide the party members. The issue of an Islamic state, for instance, has been a bone of contention among the different groups within the PKR, with some voicing support for this agenda advanced explicitly by PAS only to be met with vigorous opposition from within the same party.

DAP. The recent election witnessed the DAP's best performance in history. With 28 seats in Parliament, the closest it ever came to this figure was way back in 1986 with 24 seats. This massive support was no doubt fuelled greatly by the 'swing votes' of Chinese and Indian voters. DAP's entry into this spotlight had also compelled it to come to terms with the realities of Malaysian politics, as testified for example, by its initial objection to a PAS candidacy for the post of Perak Menteri Besar, only to subdue its protest later and acquiesce with the collective decision. "It's not just the state constitution," Chandra observed. "it is a question of the realities that have shaped this nationtthat this nation had emerged from a Malay polity." The state constitutional requirement for a Malay Menteri Besar cannot be changed through the ballot box, but has to evolve through time.

In Penang, the DAP-led government has made some "commendable" moves, such as the declaration of assets, cutting down on wastage and implementation of the open tender system.

PAS. PAS was the biggest beneficiary of Malay disillusionment with UMNO. Although it secured only 23 seats in Parliament (in 1999 it won 27 seats), for the first time in history, PAS made major inroads into the West Coast of Peninsular Malaysia, winning many seats in Perak and Selangor and even managing to capture the West Coast state of Kedah. This is in addition to its traditional support-base of Kelantan. In this election, PAS established itself as a political party with "urban, middle-class, Malay, Muslim support."

But what is equally important is that PAS had also become increasingly conscious of Malaysia's multi-religious character, as signalled by its exclusion of the Islamic State agenda as a concession to the Pakatan Rakyat.

Pakatan Rakyat. The Pakatan Rakyat (PR) - PAS-PKR-DAP coalition - is in need of a common ideology to unite them within a shared political framework that will also facilitate power-sharing. At the same time, some of the greatest hurdles that lie ahead of it have to do more with the "nitty-gritty" of politics such as very concrete and tangible issues pertaining to ethnicity and religion.

Outside the ethno-religious parameters , issues that have to be addressed by all include the fate of the Malaysian underclass, corruption, crime and foreign policy.

Shad Saleem Faruqi, in his presentation on the constitutional and legal implications of the recent election, explained how constitutional issues are invariably linked to matters of political importance. This is seen in how many practices are observed as matters of political conventions, which, though not legally binding, are nonetheless the "flesh that clothes the dry bones of the law" and have been adhered to as if they were legal provisions. With this observation as the backdrop, Shad highlighted some of the crucial issues that have come to the fore during the election.

Ethnicity and the State Governments: The situation in Perak has raised the question whether a non-Malay can ever assume the post of Menteri Besar. The legal position is that in all nine Malay states the MB must be a Malay-Muslim but the Sultan has a residual discretion to waive this if it is expedient to do so.

The role of monarchy: Royal intervention in politics particularly in Perak, Perlis and Terengganu has brought to the fore the question of the role of the monarchy in Malaysian society. In Perak, although the BN has the largest number of seats, the loose opposition coalition commands the majority support. In this situation, Shad maintained that the Sultan rightly gave the opposition the first bite of the cherry, and if they had not succeeded in forming the government the BN could have set up a minority government.

In Perlis, the "letter of appointment" as the Menteri Besar issued by the Prime Minister was clearly unconstitutional as a federal Prime Minister cannot take over the functions of the State Ruler or Governor whose conditional discretion in the matter of appointment is mentioned in Article 39(2) of the Perlis Constitution.

In Terengganu, there was a clear-cut majority and a leader who commanded the support of the legislature. Thus there was no reason why the Istana ( the palace) should intervene in the appointment of the Menteri Besar.

Loss of 2/3 Majority: The loss of BN's 2/3 majority in Parliament has little effect on its law-making power or the annual budget as these require merely a simple majority of those attending the Parliamentary session. Constitutional amendments however, would pose a problem for the ruling coalition.

Special Position of the Malays: Article 153 of the Federal Constitution which secures the Special Position of the Malays and other Bumiputeras is very well-protected and requires no less than a constitutional amendment, the support of 2/3 majority of the total membership of Parliament and the consent of the Council of Rulers to be changed.

Early Dissolution of Parliament: Despite the right to stay in power for another year, the Prime Minister called for an early dissolution of Parliament and election, authorised under Article 55 (3) of the Federal Constitution. Shad noted how manifestly unfair this is, allowing one of the 'combatants' to choose the timing of the battle and contrasted it with the US Presidential Election where the election date is constitutionally fixed on the second Saturday of November every four years. However the PM's power is simply advisory and the Yang DiPertuan Agong may refuse to dissolve Parliament if he so wished under Article 40(2)(b), although by convention, he does not.

The forum participants, during the Q&A session, were concerned about the legal position of possible political moves that might take place in the near future. On the probability of a state of emergency being declared, Shad argued that although the PM may advise the Yang DiPertuan Agong to declare a state of emergency, dissolve state assemblies and thereby bring them under Federal control, the YDPA may refuse to do so.

If the forum could in any way be seen as a microcosmic representation of the general public sentiment, there was an overall optimism about the electoral verdict. Despite the divergent views and opinions, on one thing there was agreement: that the election marks a turning point in Malaysian politics. If the BN manages to revitalise itself and the PR maintain their solidarity and cohesion, Malaysia could move towards a two-party system made up of inter-party coalitions.

A new politics of pragmatism is underway as political parties that were once outside government make their way into the corridors of power. On the side of the electorate, there is a feeling that the voters have become more assertive and more independent. Perhaps a more pluralistic approach to politics is beginning to emerge.