The people's will and voice must matter | Photo: Syed Azidi AlBukhary | Source:

The democratic process is vulnerable to the machinations of entrenched political parties. Jaclyn argues for the need to protect it so that democracy in Malaysia will truly reflect the will of the Rakyat.

As the 13th Malaysian General Elections loom close, it is perhaps time to revisit the 2009 Perak constitutional crisis as a cautionary tale about the complexities of democratic transitions. Many Malaysians remember the crisis well. For the first time (arguably) since 1969, a political turnover in Malaysia seemed probable, not just possible. The power struggle between Barisan Nasional (BN) and Pakatan Rakyat (PR) in Perak, which caused a temporary shutdown of the state government, highlights how entrenched (and invested) political elites tend to resist and sabotage democratic changes.

Malaysia’s highest court, in deciding in favour of Zambry (the BN nominated Chief Minister) claimed that its decision realizes the principle of democracy. The Court stated:

It cannot be the intention of the framers of the State Constitution that in the circumstances, it is open to the appellant whether to resign or to stay on as [Menteri Besar]. The word ‘shall’ [in clause XVI(6)], in our opinion, ought to be given a mandatory effect, otherwise, it would lead to political uncertainty in the state. The appellant cannot continue to govern after having lost the support of the majority. To allow him to do so would be going against the basic principle of democracy.

But the idea of democracy the Court invoked was narrowly and formalistically based on the fulfillment of the constitutionally instituted democratic processes. In other words, it assumes that the principle of democracy is realized by the mere fact that the head of government has the support of a majority of the representatives. According to the Court’s decision, the mention of ‘majority’ referred only to the representatives in the legislative assembly, and not majority of the electorate.

The people's will and voice must matter | Photo: Syed Azidi AlBukhary | Source:

But what is the relevant factor? The Will of the Representatives or the Will of the People? Herein lies the key divergence between the proponents and critics of the outcome of the Perak crisis. Contrary to the Federal Court’s claim, the appointment of the new BN government was popularly considered to have undermined democratic choice. The outcome received a strong pushback from the public, which favored dissolution of the legislative assembly to make way for fresh elections. An opinion poll conducted at the time of the incident by independent think tank, the Merdeka Center, showed that a stunning 74% of the respondents favored fresh elections. The survey also showed that 76% of those polled were of the opinion that the people should be the ones deciding who should form the government through elections.

The context of the 2008 General Elections (GE) also supports the view that the outcome in Perak in fact defeated democratic choice, here defined as being based on popular will (rather than representative will). The 2008 GE showed a shift of support from the incumbent BN government to the opposition PR coalition. Allowing BN to wrest control over the state outside of the elections process detracts from the fact that the people of Perak had rejected them. The BN state government remained illegitimate from the perspective of the People because all it had done was to ‘convince’ three members of the legislative assembly to defect. That is why the Perak public supported fresh elections, so that their voices would be aptly represented through the electoral process.

Consequently, the only thing the Federal Court’s decision affirmed is a narrow vision of de jure ‘democracy’. This vision is about the absolute discretion of elected representatives to choose the head of government and, by virtue of the lack of anti-hopping laws, even to decide the color of government post-elections. It has entirely ignored the democratic will of the people.

Democratization, in the sense of increased political competition which tends to lead to political turnovers, is an extremely destabilizing and frightening prospect for political elites who have been in power for as long as they can remember. Power is not an easy thing to give up. This is especially if you expect to be taken to account for past misdeeds. Therefore, the likelihood of political manipulation (such as and possibly worse than what occurred in the Perak case) is highly likely when such democratic changes occur. This means that unless safeguards are implemented (or upheld), formalistic application of the rules can undermine the true basis of democracy – which is the will of the people. I make two proposals:

Firstly, there needs to be judicial and political commitment to this idea: democratic choice (i.e. the choice of the demos) is the paramount principle in the formation of government. This principle should guide all parties holding the balance of power, and this includes the constitutional head of state. The constitutional head of state in the Westminster model has a key role in ensuring smooth democratic transitions. In doing so, it is necessary that he ensures that democratic choice (based on the will of the people) is realized and not defeated by political manipulation.

We need commitment | Photo: Syibli | Source:

One such way the constitutional head of state can protect democratic choice is through the exercise of his power to dissolve parliament. This power may not be legally limited, but constitutional precedent has shown that this power can and should be used to realize the democratic will of the people. As A.V. Dicey once wrote about the English constitution, the “chief object of a dissolution is to ascertain that the will of Parliament coincides with the will of the nation.” As such, “…dissolution is allowable, or necessary, whenever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation.”

Dissolution is “in its essence an appeal from the legal to the political sovereign” – the people. It is a democratic way of resolving a power struggle in legislature and opposition to the government of the day, and should be exercised accordingly to give voice to the people.

Anti-hopping laws to keep them honest | Photo: David Challender | Source:

Secondly, it may be time for Malaysia to consider enacting ‘anti-hopping laws’. Anti-hopping legislation prevents legislators from changing political parties subject to losing their seat in the legislature. Anti-hopping laws recognize the crucial importance of the political party in determining voters’ choice. When a voter chooses a representative, he/she does not only take into account the candidates’ qualifications but also their party banner. As such, when an elected representative switches sides, this goes against one of the key reasons for his/her successful election.

Where the crossover results in a significant shift in the balance of power such that a new government has to be formed, this further undermines voters’ choice as to their preferred color of government. Although anti-hopping laws do abridge legislators’ freedom of association, such abridgment is necessary and justifiable on the basis of political stability. And has to be balanced against the public interest of guaranteeing the democratic choices of the people. What is needed is to ensure that legislators who genuinely disagree and wish to disassociate themselves from the party, may resign and stand for fresh elections without impediment. Restricting their right to do so is the true abridgment of their freedom to associate.

Democracy is a fragile system. As the history of dictatorships in Latin America (Chile for example ) demonstrates, it is not inconceivable or, for that matter, difficult for an entrenched political elite to sabotage the new government and even to destroy the system of democracy to retain power. BN has used federal emergency powers in the states (e.g. 1966 in Sarawak) with great effect to prevent political turnover. This is not to mention the 1969 declaration of a state of emergency following the General Elections where BN lost, for the first time, a two-thirds majority in Parliament. It was during this 1969 state of emergency that several laws, including amendments to the Sedition Act, were passed to greatly restrict fundamental liberties in Malaysia, thus constricting democratic space.

Now that we are at the cusps of a possibly momentous General Elections, with the promise of more democratization in the horizon, it is necessary to be vigilant about our right to choose our own government. We have to do all we can to ensure that vested political actors do not thwart the democratic will of the true political sovereign in this country: the Rakyat of Malaysia.

(Featured image accompanying article on the main page courtesy of Syed Azidi AlBukhary, source:

Jaclyn LC Neo is an Assistant Professor of Law at the National University of Singapore. She is part of the Malaysian diaspora, and remains closely acquainted with and deeply concerned about the state of...