Introduction
The Westminster system combines parliamentary democracy with constitutional monarchy. In such a system, the monarch officially keeps out of politics, but it does not mean that they have no role in politics. There has been a recent resurgence of interest in the constitutional role of the monarch in Westminster systems,Footnote 1 particularly in instances where monarchs find themselves embroiled – even if unwittingly or unwillingly – in politically motivated decisions that require them to act beyond the symbolic and ceremonial domain. Even in this niche field of study, there is great diversity to be found. Political crises and their severity vary from one context to another. For example, in the face of a failing government or a government gone rogue, a monarch may be compelled to take on a more active role to maintain the stability of the country. How an individual monarch can play this role without transcending the constitutional limits that are placed on the institutional monarchy is an area that deserves careful attention. More specifically, this article is concerned with the existence and exercise of monarchical discretion in Prime Ministerial appointments.
As with all monarchies around the world, the monarchy’s existence in Malaysia is in part a remnant of the feudal past. In addition to the federal monarchy – that is, the Yang di-Pertuan Agong at the federal level – nine of the Malaysian states are represented by a monarch at the state level,Footnote 2 each with its own royal bloodline. The nine state monarchiesFootnote 3 predated the formation of Malaysia and were incorporated into the Federal Constitution of Malaysia (Constitution) upon independence. By contrast, the federal monarchy was entirely a creature of the Constitution, which did not exist prior to Malaysian independence in 1957.Footnote 4 Cohesion is created between the offices of the Yang di-Pertuan Agong (the Monarch) and state monarchs (the Sultans) through a system of rotational monarchy: under article 32(4) of the Federal Constitution, the Monarch is elected from and by the nine Sultans; the electoral college and the candidate are both limited to the nine.Footnote 5 Each Sultan takes turns to be the Monarch.
Because the Constitution is the source of the Monarch’s power, one has to look at the Constitution to work out the extent of the role of the Monarch. For example, although article 39 seems to confer broad and sweeping powers on the Monarch (‘the executive authority of the Federation shall be vested in the Yang di-Pertuan Agong’), that statement is immediately qualified and limited by article 40, which requires the Monarch to ‘act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution’ when exercising monarchical functions under the Constitution. This is further bolstered by article 40(1A),Footnote 6 which provides for more or less the same thing as article 40(1), but says it once more, with feeling:
In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.
There are three exceptions to the requirement for the Monarch to act on the advice of the Prime Minister, which are spelt out in article 40(2):
The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:
(a) the appointment of a Prime Minister;
(b) the withholding of consent to a request for the dissolution of Parliament;
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting,
and in any other case mentioned in this Constitution.
The focus of this article is on the first discretion – on the appointment of a Prime Minister. While the Monarch is bound to act on the advice of the Prime Minister once a Prime Minister has been appointed and as long as a Prime Minister remains in office, when the erstwhile Prime Minister’s tenure comes to an end – for example, due to a premature resignation, death or parliamentary dissolution – the Monarch has the discretion to appoint the new Prime Minister. However, by virtue of article 43(2)(a) of the Federal Constitution, this discretion is not unlimited. Instead, it is what Ronald Dworkin has termed a doughnut-shaped discretion: an open area of discretion that exists at the centre is circumscribed by a ring of restrictions around it.Footnote 7 The restrictions are both legal and political. The underlying assumption is that all discretion must have its limits. That much, we hope, is uncontroversial. The problem lies in working out what those limits are. We may further ask if those limits on monarchical discretion changed when the unwritten Westminster convention came to be written into the Malaysian Constitution, and when it was transplanted from Buckingham Palace to Istana Negara.
Article 43(2)(a) states that the Monarch shall appoint as Prime Minister ‘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 of Representatives’ (emphasis added). Inherent in this provision is a mix of legal and political restrictions which should be carefully disentangled. As a starting point, the Monarch cannot just appoint simply anyone to be Prime Minister: the choice must be limited to a member of the House who commands the confidence of the majority of the House. Prior to 2020, this had always been a choice of one: it was crystal clear who was ‘likely to command the confidence’ of Parliament, and it was the leader of the political party/coalition with the electoral victory who was appointed and sworn in by the Monarch immediately after an election.Footnote 8 In an easy case like this, the Monarch has no choice but to appoint that person as Prime Minister: where the election results are clear, the choice of the Prime Minister would be too, and the area of discretion at the centre of the doughnut becomes almost non-existent.
What is taking place within such an act is a curious interplay of the legal with the political: the Monarch’s exercise of the legal act of appointment must be supported by the ‘confidence’ of the majority of the Members of Parliament (MPs) counted singly and individually, though conventionally such ‘confidence’ is evidenced through the political convention that the person ‘likely to command the confidence of the majority of the members of that House’ is the leader of the victorious political party/coalition (hence the lack of any mention of political parties at all in article 43(2)(a)).Footnote 9
What disrupts this clockwork-like exercise of discretion is the introduction of shocks into the constitutional system, such as when there is a hung Parliament with a resultant minority government, or a mass defection of MPs from a ruling party or coalition, all of which may create ambiguity about who actually has the most support in the House to be appointed as Prime Minister. In such situations, the existing political convention ceases to have any guiding effect, the area of discretion at the centre of the doughnut becomes enlarged, and to discharge his legal function the Monarch may be forced to establish from scratch the criteria for ascertaining who commands the confidence of the House.
This article focuses specifically on the unprecedented exercise of monarchical discretion in the appointment of various Prime Ministers in the period between 2018 and 2022, which was variously triggered by an electoral revolution, a consequent burst of party-hopping stemming from volatile political (re-)alignments, as well as the political paralysis that had resulted from the onset of the Covid-19 pandemic. Never before in the history of Malaysia has the King been drawn into a political crisis as much as His Majesty was in the incidents that occurred over the five-year period.
The article will first survey the evolving role of the Head of State as a constitutional actor from 2018 to 2022 when the King appointed four Prime Ministers: Mahathir Mohamad (2018), Muhyiddin Yassin (2020), Ismail Sabri Yaakob (2021), and Anwar Ibrahim (2022). Next, we will demonstrate how the introduction of an amendment to the Federal Constitution that was originally intended to arrest the issue of party-hopping simultaneously (partially) clears up the issue of the King playing the role of a political mediator. Specifically, we will discuss how the textual ambiguities and limitations of article 43(2)(a) enabled the occurrence of those crisis incidents, and how article 49A – its original purpose notwithstanding – manages to sidestep the particularly difficult task of having to ascertain which parliamentarian commands the confidence of the House. Following that, we identify unexpected benefits of article 49A as an instance of ‘exaptation’, a concept from evolutionary biology referring to a trait that carries out a function which it was not originally meant to perform. Finally, we argue that while there is a need to be more willing to recognise the novel advantages that arise out of the exaptational process, it is nevertheless equally important to acknowledge and remedy the (new) problems that constitutional exaptation may create.
Chronology of Events
2018 − Return of the Jedi (Mahathir Mohamad)
In the year 2018, a significant milestone was achieved in the political history of Malaysia. After sixty-one years of hegemony, the ruling coalition, Barisan Nasional (BN), that had governed Malaysia since independence was defeated by the federal opposition coalition, Pakatan Harapan (PH), in the fourteenth general election. Led by former Prime Minister Mahathir Mohamad (who was also once from BN), PH – comprising the Malaysian United Indigenous Party (BERSATU), Social Justice Party (PKR), National Trust Party (AMANAH), and Democratic Action Party (DAP) – and its supporting ally, the Heritage Party (Warisan) from Sabah won 112 seats out of the 222 seats, thus securing the simple majority needed to form a government. The dramatic nature of PH’s victory, however, extended beyond the sheer fact that it had achieved the unprecedented and seemingly impossible – for despite its numerically-unequivocal electoral victory, the journey of obtaining the royal seal of approval to officially appoint Mahathir as the Prime Minister was far from smooth sailing.
The morning following the 9 May election, as the leader of the winning coalition, Mahathir was expected to seek an audience with the King in order to be sworn in as the new Prime Minister. However, confusion arose when, without giving an official reason,Footnote 10 a palace spokesperson said that there would not be an inauguration ceremony on 10 May.Footnote 11 A stranger unversed in the culture of Malaysian politics may find this procedural snag befuddling. Confronted with a regime change for the first time, a hesitance in accepting the reality of a non-BN-led government was understandable. There was no doubt that this was a new scenario that was fraught with much tension and uncertainty. For some, this gave rise to the impression that it was a deliberate attempt to delay the swearing-in of the Prime Minister, though the allegation has since been refuted.Footnote 12 There was concern among the public that the Election Commission and even the palace would deny PH its electoral victory. But one could also argue that the King was just being cautious especially when BN had never lost an election before – more so as PH had only won by a slim majority.
Eventually, Mahathir was granted an audience with the King at 5 pm on the same day.Footnote 13 Yet, despite the official election results from the Election Commission, there was nevertheless a separate exercise of the King interviewing the respective leaders of parties within PH.Footnote 14 Whilst unassuming,Footnote 15 such an act was not insignificant, for it raised the question of whether the monarch’s discretionary power to appoint the Prime Minister should only ever be bound by the electoral results declared by the Election Commission. In other words, is it up to the Election Commission (as the official determiner of the electoral victor) to inform the King which party, or coalition of parties, has won the most number of seats, or can the Monarch take the liberty to further conduct his own investigation as part of the exercise of his discretion in order to determine who should be Prime Minister? After much waiting, speculating and breath-holding, Mahathir was finally sworn in as the 7th Prime Minister of Malaysia on 10 May 2018, and the nation could finally heave a collective sigh of relief. As it turned out, the relief could not last for long.
2020 − A Stab in the Back (Muhyiddin Yassin)
The PH government was short-lived. After eighteen months of governing, the coalition of convenience began to break as a result of opportunistically and ideologically driven internal divisions.Footnote 16 This eventually culminated in what has been coined the ‘Sheraton Move’ − a mass defection of PH MPs (which included deputy president of PKR, Azmin Ali, his faction from PKR, as well as BERSATU) in a bid to form a new ‘backdoor’ government with opposition parties. Subsequently, Mahathir resigned from his position, but was appointed by the King to serve as an interim Prime Minister. The Constitution does not provide for such a thing as an ‘interim’ Prime Minister. Either one is Prime Minister or one is not. The Constitution does not have grades or shades of Prime Ministership. With the collapse of the PH government, it became increasingly difficult to ascertain which coalition has the number of lawmakers to rule and command the confidence of the House of Representatives. In the chaotic week following Mahathir’s resignation, Mahathir made an intriguing suggestion on how to resolve the impasse. He wrote to the Speaker asking the latter to recall Parliament for a special sitting to vote on who had the confidence of the House. The Speaker declined to do so.Footnote 17
In fact, Mahathir’s suggestion was a persuasive one as it had several benefits. First, it would have provided a transparent way of determining who had the confidence of the House. All members would have to cast their vote within the parliamentary chamber and declare their allegiance before the full glare of television cameras. Second, it would have enabled Parliament to ‘sort out its own mess’ without dragging the King into the mire and inadvertently forcing the exercise of strong monarchical discretion under article 43(2)(a) of the Federal Constitution. Third, as the title of Speaker implies, it is the job of the Speaker to ‘speak’ to the Monarch for the Monarch to exercise his discretion; in this case, it would be to ascertain the will of the House through a vote in the House and to relay that will to the Monarch. However, this suggestion has a drawback: most notably, it will not work immediately after an election, for at that point, the previous Parliament has already been dissolved to pave the way for the election, and the new Parliament has not yet been convened (the first item of business of any new Parliament is the selection of the Speaker and the swearing-in of its members). Thus, there would be no Speaker and no Parliament to recall immediately after an election. Mahathir’s suggestion would only work midway through a parliamentary term, when there is already a Speaker and Parliament in place to determine who has the confidence of the House. In any case, all this is moot, as the Speaker in 2020 did not take up the invitation to recall Parliament, and the suggestion died there.
In the midst of the party-hopping mess, the King – breaking convention – announced that he would interview all 222 elected MPs before proceeding to the next step.Footnote 18 Unprecedented as it was, the King’s actions were probably necessary to temper the volatile political climate. It bears mentioning the dramatic situation in which Malaysian politics had found itself at the time: MPs were being ferried to the palace in chartered buses, probably a deliberate act to prevent anyone from being swayed or persuaded to shift their allegiance amid the uncertainty. Yet, despite the individual interviews carried out with all the 222 MPs, the King could not determine who should be the next Prime Minister. Next, the Comptroller of the Royal Household announced that leaders of political parties would nominate a Prime Ministerial candidate.Footnote 19
This immediately triggered a competition between eligible Prime Ministerial candidates in gathering statutory declarations (SDs) of support from MPs. The interviews which were meant to end the political crisis not only did not solve the crisis but ironically paved the way for politicians to consider shifting their allegiance again. While BERSATU announced that they would nominate Muhyiddin Yassin as the next Prime Minister, PH announced that they would support Mahathir, after initially declaring that they would support Anwar Ibrahim from PH. As the crisis continued, Muhyiddin sought an audience with the King, and soon after, the palace announced that ‘… the opinion of Yang di-Pertuan Agong that the one who most likely to have received the trust of the majority of MPs is the Pagoh MP, Muhyiddin’.Footnote 20 Muhyiddin Yassin was then appointed as the 8th Prime Minister by the King – much to the dismay of the PH voters. This very quickly earned the Muhyiddin-led government the unenviable label of the ‘backdoor government’.
Despite the lack of clarity on the actual number of lawmakers who supported Muhyiddin, there was no overt questioning of the King’s decision, since doing so would have been considered an act of treason. Although Muhyiddin’s appointment was devoid of an electoral mandate, it arguably still fell within article 43(2)(a)’s broad discretionary power. At the same time, Mahathir, in his refusal to acquiesce easily, declared that he had the support of 114 MPs – also in the form of SDs.Footnote 21
There was no proof that could be ascertained by the public that Muhyiddin Yassin had the support to be the Prime Minister. However, it is also important to note that nothing in article 43(2)(a) suggests that the King was required to prove to the public the grounds on which he found Muhyiddin to have the support to be the next Prime Minister. Still, this unprecedented political crisis opened a floodgate of political and constitutional concerns. First, the choice to interview all the 222 MPs as the methodology for ascertaining the confidence of the House was unprecedented and highly unconventional. Granted, interviewing all the MPs – with the implicit assumption that each MP could candidly communicate their vote – was possibly one of the more direct ways to solve the uncertainty problem. Yet, interviewing the MPs eventually did not lead to the desired outcome: the arrival at a conclusive decision. As a way out, the lawmakers were then asked to narrow down the list of names to be chosen. Even this had its own limitations because the King still had to choose between the nominated names.
More significantly perhaps, focusing one’s attention solely on the head-counting exercise distracts one from the fact that the ball in effect continues to be left in the court of the lawmakers, for it is the latter’s votes that were determinative and thus were being counted. Thus, far from being able to stabilise the situation, the notion that the MPs’ votes would be individually counted inadvertently created a space for more party-hopping. This leads us to the second concern, which is the unreliability of the mode of gathering SDs to solve a political impasse. The problem with SDs is that they can be easily countered with new SDs; hence potentially encouraging frequent changes in party affiliation and thus worsening the existing political instability.
Third, even when Muhyiddin Yassin was finally appointed as the next Prime Minister, it was never publicly revealed who the MPs who supported him were. Neither was there a tabling of a vote of confidence in Parliament to corroborate the support for his mandate to lead. The eventual appointment of Muhyiddin Yassin as the new Prime Minister set an extraordinary precedent because it exemplified an exercise of monarchical discretion that was guided not by legal prescriptions nor conventional political practice but by the personal wisdom of the Monarch. The discharge of the function of Prime Ministerial appointment had appeared to be legitimated by the fact that it was a purported implementation of the text and spirit of article 43(2)(a). In other words, it equated constitutionality with the (good faith) intention to exercise a constitutional power without necessarily accounting for the means through which the exercise was conducted. What could have mitigated this concern is the establishment of (or, at the very least, the attempt to establish) formal or informal publicly-ascertainable guidelines to help counsel the King’s exercise of discretion in the event such an exercise is called for again in the future, but as we will see next, this clearly did not materialise.
2021 − A Dark Horse Rises (Ismail Sabri)
With the appointment of Muhyiddin Yassin, Malaysia ushered in the Perikatan Nasional (PN) coalition government comprising former rivals, namely UMNO and PAS, and the main political parties from Sarawak. But the PN government was never stable to begin with. Retribution came full circle when UMNO officially withdrew its support from the PN government and Muhyiddin was forced to resign. Similar to the Sheraton crisis, the King was once again thrown into the unenviable quagmire of having to appoint a new Prime Minister. However, instead of interviewing all the 222 MPs, this time the King sought to verify the number of MPs that any coalition leader could muster through means of SDs.Footnote 22 They were given the option to submit their SDs by fax, email, or the chatting app, WhatsApp – an unusual mode of communication especially in a country where protocols of formality are highly valued. SDs are, as noted earlier, highly unreliable, and also potentially undemocratic.Footnote 23 Furthermore, the palace announced that there had to be a shift to ‘new politics’, urging stability and compromises. This was additionally complicated by the fact that the political crisis had unfolded at the height of the Covid-19 pandemic, and since holding an election could increase the risk of infections, an election was ruled out.
Based on the collected SDs, the palace announced that Ismail Sabri from UMNO had secured the backing of 114 lawmakers, giving him a slim majority. Again, it was not announced to the public who those 114 lawmakers were. Here, we see the consequences of lessons not learnt: as before, no conventions (formal or informal) were present to guide the exercise of monarchical discretion, and as a result, this wide margin of discretion became a source of great constitutional uncertainty.
2022 – A Cat with Nine Lives (Anwar Ibrahim)
After years of continuous political instability, Malaysia went to the polls on 19 November 2022. By now, instead of two coalitions, there were three main coalitions, namely PH, BN, and PN from peninsular Malaysia and two main coalitions from East Malaysia namely Gabungan Rakyat Sarawak (GRS) and Gabungan Parti Sabah (GPS). In a yet-again unexpected turn of events, none of the main coalitions won enough seats to secure the simple majority required for the formation of the next government on its own. PH won eighty-two seats, PN won seventy-four seats, and BN won thirty seats. Gabungan Parti Sarawak (GPS), a BN-friendly coalition, won twenty-three seats and other independent parties won thirteen seats. Although PH secured the greatest number of seats, it still fell far short of the majority threshold.
The country was enveloped by a sense of déjà vu as the King was required, once again, to step in as both PH and PN raced to secure allies to form the government. On November 20th, a day after the election, the King decreed that all political parties must submit the names of their respective Prime Ministerial candidates via SDs to the palace the following day.Footnote 24 At the same time, the parties must also declare their coalitions and alliances to form the federal government. These two requirements, however, are in tension: SDs are signed individually by each MP, whereas parties deal with MPs en bloc. Did the King want MPs to declare their individual allegiance or parties to declare their group allegiance? Because of this lack of clarity, what ended up happening was party leaders attempting to gather individual SDs and submit them as a group.
Political negotiations turned out to be a complete nightmare. The deadline had to be extended to November 22nd because the party leaders could not come to an agreement.Footnote 25 In the meantime, PN declared that they had submitted 112 SDs to the palace on 21 November and an additional one the following day, bringing the total up to 113.Footnote 26 However, no one knew exactly who the 113 signatories were. PN MPs, on their own, did not make up 113. Amid the uncertainty, the King met with leaders from PH and PN and requested that a unity government be formed between them, but the proposal was rejected by PN. Subsequently, the King decreed BN (as the coalition possessing the third most seats and hence as a ‘kingmaker’) to form a unity government with either one of the coalitions.Footnote 27 After meeting with both coalitions, BN eventually formed a unity government with PH, turning foes into friends.
Notice that this time round, because the King’s eventual intervention was by speaking to the coalition leaders directly, the King had in effect rendered the method of head-counting through SDs defunct. By outsourcing the head-counting exercise to party leaders, the King had returned the task of confidence-determination to the lawmakers to be sorted out, with the attendant consequence of limiting monarchical decision-making to mediating based on the results submitted by party leaders. Thus, Muhyiddin’s insistence – after the unity government was formed – that he had 113 SDs to support him as the Prime Minister and his demand for Anwar to prove he had the necessary number of SDs to support him, were a failure to realise that the goalpost had shifted mid-game: SDs were no longer a proof of mandate. A new precedent was thus established in 2022: the King would speak directly to party leaders and deal with parties en bloc. The method of using SDs to determine support in the House was tried, tested, and now discarded.
The next section will pivot to an issue – the enactment of the anti-party-hopping law – that might appear to be unrelated to the exercise of monarchical discretion. As you go through it, it will gradually become clearer how it is connected to the issues just raised in this section. The final answer, as you will see, will be provided at the end of the section and in the third section of this article.
A Tale of Two Articles: Article 43 and Article 49A
We will tell the tale historically. The Malaysian Constitution, as drafted at independence in 1957, knew no parties. There was no mention of parties whatsoever in the 1957 Constitution. When the Reid Commission came to write article 43(2)(a), they made no mention of parties, despite acknowledging the reality of parties in the Reid Commission Report. One reason as noted in the Report was that there may be occasions when it is doubtful which party has the majority (colloquially called a hung Parliament), and therefore the Monarch might have to resort to counting heads: one member, one vote, and whoever can command the confidence of the majority of members gets to be Prime Minister.Footnote 28 The simple picture is clear enough: by default, the leader of the majority will be appointed; but where no such majority leader is present, the Prime Minister will be appointed based on the support of the members of the House, counted singly and individually. The idea of parties, whatever its utility, is not necessary for the latter determination to be conducted.
Beyond this pragmatic reason, one may offer some further principled reasons for the Constitution’s lack of consideration of parties. The principled reason, we suggest, may have to do with the traditional conception of the role of an MP in the Westminster tradition, upon which the Malaysian Constitution is based. The Westminster constitution is unwritten, so it is difficult to say, as boldly and baldly as we have in relation to the Malaysian Constitution, that it knows no parties, but we may venture to suggest that the deep logic of the Westminster model is not one founded on parties. Voters vote for a person, not a party. This person–party dichotomy has a direct impact on the enactment of the anti-party-hopping law, and an even more momentous, albeit indirect, impact on the exercise of monarchical discretion in the appointment of the Prime Minister.
Constitutional conventions began life as customary practices in the British uncodified constitution, some of which were subsequently and only belatedly codified in the postcolonial constitutions of the newly independent states. To understand the animating spirit of a convention, at least in its original form if not in its vestigial form, one needs to look, not to an original codified text (of which there is none), but to a set of self-understandings by the actors and participants in the convention, who ‘communicated their doctrines only to the initiated.’Footnote 29 Consider, for example, the Burkean conception of the role of a parliamentarian. In his famous Speech to the Electors of Bristol, Burke argued that the role of a parliamentarian is to exercise his own judgment in relation to the questions that are put before Parliament, and that judgment is sacrosanct: ‘his unbiased opinion, his mature judgement, his enlightened conscience, he ought not to sacrifice to you; to any man, or to any set of men living’.Footnote 30 Presumably, not even to his party. The parliamentary process is a process of deliberation among MPs. It is only those who are present in the deliberation, and who have listened to the myriad of arguments back and forth, who are in a position to make an informed judgment. They have to be open to persuasion, and then vote in Parliament based on what they have been persuaded of.
On this view, the independent judgment of a parliamentarian should not be beholden or subservient to anyone, not even to their constituents. The constituents have not listened to and participated in the debate in the House, ‘consequently it would make no sense for a representative to consult his constituents about what to do, since he is present at the parliamentary deliberations and they are not’.Footnote 31 The notion of MPs receiving ‘authoritative instructions’, either from their constituents or from party hacks, which the ‘Member is bound blindly and implicitly to obey, to vote, and to argue for’, is odious, for it arises ‘from a fundamental Mistake of the whole order and tenor of our Constitution'.Footnote 32
However, that is not to say that Burke is against having parties in the political system. On Burke’s definition, a ‘party is a body of men united for promoting by their joint endeavours the national interest, upon some particular principle in which they are all agreed’.Footnote 33 Parties are a means to put the principles into practice. However, the MP who is a member of a party must first believe in the principles of the party, for the party is simply the means, not the end. The end is the principles. Therefore, one should never ‘blindly … follow the opinions of your party when in direct opposition to your own clear ideas’.Footnote 34 The first principle is that MPs should exercise their own individual judgment. Instrumentally, members who share the same principles may unite as a political means to achieve certain ends. The need to unite in a party may at times be a moral necessity, for as Burke says, ‘when bad men combine, the good must associate; else they will fall’.Footnote 35
That said, there remains some degree of tension between the first principle and the instrumentality of the party. Generally speaking, for the instrumentality of the party to work, it has to demand a measure of loyalty from its members, but the more loyalty it demands, the more it compromises the first principle that MPs should exercise their own individual judgment at the parliamentary forum. Granted, it is plausible that party discipline does not entirely snuff out the potential for an independent exercise of judgment – by demanding that a disagreeing parliamentarian air their grievance within the party forum first, rather than directly in the parliamentary chamber without a prior internal discussion within the party. Hence, what is conveyed and argued during the open parliamentary debate is meant to already have taken into account any erstwhile conflicting views of party members. In other words, the party line-abiding parliamentarian still gets to exercise his or her individual judgment but he or she does so behind closed doors within the confines of the political party room, rather than in public.
However, conflicts of views can still arise in the parliamentary forum even after prior internal debates, and in such an event, the Westminster constitution stands by the first principle over the party instrument. The legal position remains that it is the judgment of the individual member, not of the party, that should matter. That is the case with the unwritten Westminster constitution as well as with the Malaysian constitution, as written in 1957. The risk of this ‘one parliamentarian, one voice’ constitutional arrangement is that it may lead to a rowdy Parliament with a cacophony of discordant voices. Rather than attempting to find points of agreement and compromises, the individualistic parliamentarian who insists far too strongly on their own convictions may end up paralysing political debate and decision-making, leading ultimately to an unstable government. The constitutional position can only work so long as the high-minded first principle that it entrenches is tempered by the practical reality of parties being able to impose a modicum of discipline on their members. The lack of party discipline may lead to parliamentary dysfunction.
From 1957 to 2018, the constitutional position, as set out in article 43(2)(a) of the Malaysian Constitution, worked because it was matched by strong (or strong-armed) party discipline which came from having a dominant party with a supermajority in Parliament, first by the Alliance Party, then by BN. Until 2018, the possibility of any of the MPs voting across parties was negligible, so much so that party loyalty was taken for granted. The unspoken feudalistic norms practised especially by BN further pressured the MPs to toe the party line. On a more practical note, refusing to toe the party line would subject them to party discipline, and they may lose the largesse and other benefits that they could derive from being a loyal party member.
However, in 2018 when the BN lost the election and was replaced by the fragile PH as illustrated in the above section, there was no longer a dominant party in Parliament, and the loss of a dominant party was not compensated by a culture of strong party discipline within the splinter parties in Parliament. The result was chaos. Governments rose and fell. Party loyalties were reconfigured relentlessly and ruthlessly. And there was a revolving door of Prime Ministers. Enabling all this chaos was the constitutional position of article 43(2)(a), which simply required that the Prime Minister had the support of a majority of the members of the House, counted singly and individually. Therefore, an aspiring Prime Minister could just go to individual members to cajole, coax, or even buy their votes. Once he had reached the magic number of a simple majority, as evidenced by the peculiarly Malaysian use of SDs, he could then dash to the Palace to ask to be sworn in as the new Prime Minister. Strong party discipline, if it had existed, would have stood in the way of changing allegiances and done away with the need for creative head-counting, but that was what the Malaysian political culture lacked at a time when there was an absence of a dominant party or coalition. Consequently, the high-minded constitutional principle of article 43(2)(a) descended into a free-for-all, with the monarchical exercise of discretion being forced to spiral into a free-fall.
The constitutional solution that was hatched to arrest and address future party-hopping is article 49A. Here is article 49A in full:
(1) Subject to the provisions of this Article, a member of the House of Representatives shall cease to be a member of that House and his seat shall become vacant immediately on a date a casual vacancy is established by the Speaker under Clause (3) if—
(a) having been elected to the House of Representatives as a member of a political party—
(i) he resigns as a member of the political party; or
(ii) he ceases to be a member of the political party; or
(b) having been elected to the House of Representatives otherwise than as a member of a political party, he joins a political party as a member.
(2) A member of the House of Representatives shall not cease to be a member of that House pursuant to this Article only by reason of—
(a) the dissolution or cancellation of the registration of his political party;
(b) his resignation from the membership of his political party upon election as a Speaker; or
(c) the expulsion of his membership of his political party.Footnote 36
(3) Whenever the Speaker receives a written notice from any member of the House of Representatives on the occurrence of a casual vacancy among the members of the House of Representatives under this Article, the Speaker shall establish that there is such a casual vacancy and notify the Election Commission accordingly within twenty one days from the date he received the written notice.
(4) For the purposes of holding an election under Article 54, such casual vacancy shall be filled within sixty days from the date the Election Commission receives the notification from the Speaker.
Article 49A mentions ‘political party’ for the first time in the Constitution, thereby conferring upon it a kind of constitutional status. The tying of MPs to their political party alters the traditional Westminster conception of the role of a parliamentarian. It solidifies the instrumentality of the party at the expense of the high-minded Burkean first principle. The effect of article 49A is that a voter will now, legally and not just politically, be voting for the person plus the party. The party affiliation is attached to the person for the entire duration of their parliamentary term. If the person were to detach themselves from the party, then the person would lose their seat. An MP is tied to their political party, just as they are tied to their geographical constituency. An MP is always a member for a particular constituency of a particular party. Symbolically, when one wins a seat, one does so for the party and not for the MP itself. Even so, a caveat remains. Imaginative elected lawmakers can still notionally declare their support to another party without formally resigning from their own party. They could do so as a way to threaten their own party to expel them, and indirectly pave the way to join a different party – all the while still being able to retain their parliamentary seat. However, if the party is weak and every seat matters, the party may not choose to expel the disloyal parliamentarian.
Indeed, even in the case of a voluntary resignation by the MP, a loophole also exists in the following scenario: if the MP manages to win the by-election that is triggered by that resignation from the original party – owing, perhaps, to their personal popularity within the constituency – this would still produce a scenario whereby that same MP retains their seat, but now with a loyalty to a new party. In other words, article 49A can introduce friction to prevent party-hopping where voter allegiance lies with the party, but cannot entirely eliminate party-hopping where voter allegiance lies with the individual MP.
With article 49A, the high-minded Burkean ideal of the independently-minded parliamentarian is out the window, but it is a necessary price to pay for party discipline and government stability. Some principles are a luxury that some states cannot afford. The state has to work with reality, including realpolitik. Political parties are here to stay, but in Malaysia, they lack party discipline, so the law may have to give them constitutional status and recognition in order to rein them in. The article 49A amendment uses the Constitution to impose and enforce party discipline, which the parties otherwise lack.
The bigger point that this article wishes to convey, however, is that moving away from the Burkean ideal is well worth it when we consider that article 49A solves not one but two(!) problems. For although article 49A was initially inserted to address this problem of the lack of party discipline, it also has the fortuitous, unintended consequence of solving the problem that article 43(2)(a) raises – that of unprecedented exercises of monarchical discretion in the appointment of the Prime Minister. When discussing the issue of monarchical discretion, Andrew Harding suggested that ‘the writing down of conventions is in general (although clearly not always) a desirable development.’Footnote 37 Something has indeed been written down here, but not the convention itself. In a roundabout way, this something else, somehow, did the trick. We will next examine in more theoretical detail the workings of this fortuity.
An Exaptational Explanation
Let us turn briefly from the law of the state to the law of nature, for the latter may have something to teach us about the former. In evolutionary biology, exaptation refers to a phenomenon in which a feature evolved for a specific usage is subsequently ‘co-opted’ for a new function, even though the feature was not originally intended for it.Footnote 38 A popular example is that involving bird feathers: while the feathers were initially designed to act as an insulator to preserve the body temperature of birds, they later evolved to serve a different purpose of enabling the flight of birds.Footnote 39 In the legal context, this process − termed ‘legal retrofitting’Footnote 40 − occurs when ‘changed circumstances’ bring about a need for ‘[l]egal institutions, doctrines, and texts’Footnote 41 to be repurposed to achieve new ends. For example, the concept of vicarious liability in labour law is an exaptational outcome of the ‘personal liability of the paterfamilias’ originating in Roman law in order to account for modern enterprise.Footnote 42 Exaptation, therefore, capitalises on some underlying feature(s) of existing tools to be put to other uses in response to a change of context or circumstance. In the case of bird feathers, the relevant feature is the filaments on feathers (called barbs): they can be arranged to trap layers of air that prevent heat loss from the body,Footnote 43 or to create ‘a smooth, continuous surface’ for an aerodynamic airflow conducive to flight.Footnote 44 In the case of the doctrine of vicarious liability, the relevant feature is control: the employer has control over its employees, just as the paterfamilias had control over members of the Roman household.
With the conception of exaptation in mind, let us now turn back to the problem at hand. Article 49A was devised with the explicit intention of solving the problem of party-hopping. However, through the process of exaptation, it may also have had the unintentional effect of solving the problem of the scope of royal discretion in the appointment of the Prime Minister raised by article 43(2)(a). Both the problem of parliamentary instability (the unpredictable shifts in party loyalty bringing about coalitional fractures) and the issue of confidence (the difficulty in identifying who commands the confidence of a majority for the purpose of Prime Ministerial appointment) are traceable − albeit in varying degrees − to a lack of party discipline. The opportunism-driven party-hopping activity that had threatened the majority mandate of the then ruling coalition in 2020 also resulted in the possibility of an MP ‘express[ing] support for one Prime Ministerial candidate one day and another the next’.Footnote 45 Therefore, the Monarch’s head-counting exercise by way of interviews, SDs and the like was not only constitutionally unprecedented, but also epistemically precarious.
By tying the allegiance of an MP to a determinate (and determinable) party during any one parliamentary term, article 49A’s instillation of party discipline simplifies the head-counting exercise, because it makes it absolutely clear which leader each MP supports − or is supposed to support − in a vote of confidence in the House. By virtue of article 49A, the numbers will be instantly and directly discernible from the distribution of party seats, and as long as a simple majority can be found, there should be no doubt as to which leader should be the next Prime Minister. There would thus no longer be a need for individual MPs to have an audience with the Monarch just so that the Monarch can gauge the level of parliamentary support for each Prime Ministerial candidate. This way, the Monarch’s discretion under article 43(2)(a) is constrained not through an imposition of rules, but by a (partial) ab initio removal of the need for a discretionary exercise of judgment in this area. Article 49A, as such, became an unexpected way out of the constitutional quandary posed by article 43(2)(a)’s loose wording, even though the former was not at all foreseen (much less intended) to serve such a function.
It should be caveated, however, that article 49A only goes some way toward resolving the problem of monarchical discretion in the appointment of the Prime Minister. The increased stability is only a partial solution, because it is merely a dispositive solution to an evidentiary problem. In other words, article 49A only reduces the part of the Monarch’s discretion that pertains specifically to head counting. There are still other scenarios in which the Monarch’s discretion under article 43(2)(a) is unguided, most notably, in the case of a hung Parliament. Indeed, in such a scenario, the existence of party discipline ironically eliminates any possibility that a leader from a party or coalition which has failed to garner a simple majority can nevertheless claim that the leader has a majority of personal cross-party support from individual MPs. Nonetheless, even in the messy situation of a hung Parliament, there is something to be gained from article 49A. With article 49A in place, any negotiation would have to take place between party leaders – and not with individual MPs directly – which makes the whole process more structured. This structured negotiation makes the situation better, as compared to the previous state of affairs, but it is not a foolproof mechanism. There is the chance that we may be back to square one if the party leaders fail to strike a deal that will produce a coalition with a simple majority, in which case the Monarch has to step in and we are back into uncharted territory. In that regard, article 49A is a small step, not a giant leap, in addressing a constitutional problem that has bedevilled Malaysian politics. In the area of constitutional change, oftentimes, small steps may be all that we can hope for, and sometimes, they may be better than taking huge leaps that may throw us off the cliff.
The Exaptational Lesson: A Path Forward
There is perhaps some irony in attempting to discern lessons for the future from a constitutional accident. The Monarch’s discretion in appointing a Prime Minister under article 43(2)(a) is now more constrained, as it is now guided by the structural change imposed under article 49A. Although the question of the Monarch’s discretion under article 43(2)(a) has not gone away entirely, we can at least take comfort in the fact that the chances of the events from 2018 to 2022 recurring have been reduced. A cynic may well write this happenstance off as an isolated case of deus ex machina with little heuristic value. Superficially, article 49A vis-à-vis article 43(2)(a) appears to be an expedient band-aid that merely succeeds in postponing the discretion problem to another day. Even as it halts party-hopping and solves the head-counting headache’, it still risks producing rubber-stamp parliamentarians. As we argue in this article, however, the roundabout way of problem-solving demonstrated by article 49A is a unique addition to the theorist’s constitutional toolkit: the exaptational lesson alerts us to the possibility that the path to constitutionalism can be circumlocutory rather than ‘confrontational’.Footnote 46 In the context of Malaysia, when the matter involves royalty and the exercise of royal discretion, circumlocution may be wiser than confrontation.
The Appointment Problem and Beyond
For all its unprecedented novelty, the intractability of the appointment problem is paradigmatic of the constitutional culture that has long defined Malaysia’s ‘fledgling’ democracy;Footnote 47 one that has ‘a history of authoritarian rule’,Footnote 48 has yet to ‘[develop] a robust constitutional culture’Footnote 49 and is beset by divisions of ‘race, religion, and identity’.Footnote 50 At the heart of the appointment problem resides a constitutional identity mired in disjunctions − that between symbolic autocracy and limited legal authority, between procedural propriety and outcome-legitimacy, as well as between constitutional appearance and political reality. All these disjunctions are epitomised in the relationship between the King and Prime Minister, and they come to the fore in the King’s appointment of the Prime Minister.
First, the inability to disentangle fully the distinct symbolic and constitutional roles of the monarchFootnote 51 − a conflation resulting from the conceptual ‘lag’Footnote 52 that accompanied the monarchical institution’s transition from having absolute power in pre-colonial times to constitutionally-constrained powers in the present day − was on full display during the various events described in the earlier section. Cognisant that the deep-rooted veneration of the Monarch coupled with the fear of being accused of committing treason (against the Monarch) or derhaka would allow self-interested actors to wield the Monarch’s title in service of their own agenda, these actors were quick to defend a wide discretionary role for the Monarch under article 43(2)(a);Footnote 53 in the hopes of bypassing the scrutiny that is normally directed at the constitutional arguments and choices of legislative and executive actors.Footnote 54 The idea of derhaka itself is a throwback to feudal-era politics, where treason was thought to be directed at the Monarch personally (a pre-modern notion) as opposed to the state (the modern state).
Secondly, the fact that the criticism of the appointment of Muhyiddin Yassin as Prime Minister had been driven more by the outcome rather than the process of appointmentFootnote 55 signified the inability of procedural propriety (to the extent that it is present) to cure perceived substantive injustice.Footnote 56 Indeed, one could observe that this seeming distrust in the potential of institutional design and processes to bring about just outcomes was simply part of a wider pattern of disconnect between procedural and outcome legitimacy. For example, Yvonne Tew has pointed out how, within the basic structure doctrine case law of recent years, key figures in the Federal Court have been keen to embrace a more substantive conception of the rule of law. The Court’s emphasis on ‘the protection of fundamental rights’Footnote 57 in addition to a strict compliance with formal procedures carries the implication that the former is needed precisely because the latter may still be inconsistent with the constitutionalist spirit. Indeed, one of the clearest illustrations of this process-outcome paradox can be found in the King’s rejection of the advice of the then-Prime Minister to declare a national emergency in the midst of the Covid-19 pandemic.Footnote 58 This subversion of the constitutional norm that relies on procedural safeguards to curb arbitrary exercises of power thus poses the puzzle of whether the normative division of labour between formal and substantive rule of law as traditionally understoodFootnote 59 may need to be reconfigured in the context of Malaysia’s political reality.
Thirdly, the disjunction between constitutional appearance and political reality in the appointment problem that occurred in 2020Footnote 60 is also representative of the wider Malaysian constitutional culture that is rhetorically fixated on the appearance of plural harmony whilst sweeping difficult conversations about minority rights,Footnote 61 corruption,Footnote 62 and freedom of speechFootnote 63 under the rug. Indeed, this is a technique frequently employed by politicians to sidestep questions about race-based policies that operate under the constitutional auspices of article 153 of the Federal Constitution.Footnote 64
Given how the various dimensions of the appointment problem collectively constitute a microcosmic representation of Malaysia’s constitutional culture, we may − with the appropriate caution and caveat − make the extrapolative inference that the (partial) solution to the appointment problem articulated in the second section of this article has the potential to be applied to the wider Malaysian constitutional landscape. In other words, now that we have seen how constitutional exaptation has worked in the context of article 43(2)(a), we can now consider whether it could work in other contexts as well.
The value of constitutional exaptation
Although Malaysia’s complicated history of fractured pluralism,Footnote 65 ingrained political realismFootnote 66 and defeatist idealismFootnote 67 has long created a constitutional tapestry that is in constant need of (re-)definition, the need for constitutional exaptation becomes all the more apparent in the post-2018 political context. The primary reason is that the liberative aftereffects of the political tsunami of 2018 were not self-contained but were capable of setting off a chain of events that challenged the constitutional orthodoxy:Footnote 68 it quickly generated a climate in which the people have come to expect − and indeed demand − constitutional adjustments aimed at ‘build[ing] an enduring framework for a developing democracy’.Footnote 69 To cope with these new challenges, a constitutional spirit that is suitably dynamic and adaptable is required.
Constitutional exaptation, we argue, is a valuable tool for wrestling with a fast- and unpredictably changing landscape. This borrowing of insights from evolutionary biology is, to be sure, not meant to be a brazen transgression of the naturalistic fallacy. It is not meant to suggest that the social world necessarily mirrors the natural world, or that because exaptation occurs in nature, it is without more a good idea that it occurs in the legal context as well. Rather, we adopt the concept of exaptation as a heuristic device to illustrate the novelty of the gambit executed via article 49A, in particular, to show how the type of ‘change’ brought about by article 49A differs from the cognate idea of incrementalism.Footnote 70 Although the logic of exaptation shares with incrementalism a propensity for experimental evolution,Footnote 71 it is nevertheless distinctive in two respects: intentionality and directionality.
First, whereas the incrementalist approach consciously ‘defer[s] … [controversial] decisions over which there was no consensus’ in order to avoid foreseeably ‘explosive’ confrontations,Footnote 72 exaptation occurs largely by accident rather than by design. One can certainly speak of a ‘plan’ to introduce constitutional change in incremental doses, but it makes little sense to speak of planning for fortuitous developments (such as the implementation of article 49A) to occur.Footnote 73 Thus, while exaptation can certainly be one of the tools for implementing the incrementalist approach, it should not be conceptually conflated with incrementalism. Second, and relatedly, whereas the incrementalist approach implicitly presupposes a teleological vision (for instance, to produce a constitution that can accommodate ‘competing visions of the state’ and represent ‘the identity of “people”’),Footnote 74 exaptation in principle remains open-minded as to what kind of ‘end’ may be arrived at. Exaptation, in the spirit of Darwinian evolution, does not presuppose that there is a ‘predestined, optimal state’ to be moved towards, and is instead highly contingent on and ‘shaped by historical conditions.’Footnote 75
Because exaptation is by nature serendipitous and thus can only occur reactively (and sometimes only spontaneously), it is perhaps inaccurate to speak of the exaptational process itself as the tool, and more accurate to conceive of the tool as the willingness to recognise exaptation as a solution. In other words, although we may not have control over whether (and when) exaptation might occur, we do have control over (i) the constitutional lesson that we can derive from the exaptational incident and (ii) the ability to create constitutional conditions which are conducive to the occurrence of exaptation.
As we have seen in the earlier section, exaptation stands out insofar as it is able to provide an elegant, diplomatic solution to issues that require a delicate touch befitting of royalty. This tendency may be described as a form of ‘quietism in action’,Footnote 76 a concept borrowed from the field of Islamic philosophy, which − in contrast to outright ‘activism’Footnote 77− considers ‘nonaction’Footnote 78 as a ‘pragmatic or strategic mode of political contestation’.Footnote 79 This way, internal upheavals can co-exist in consonance with outward ‘social and political stability’.Footnote 80 By ‘engaging’ through ‘nonengagement’Footnote 81 (for instance, by getting rid of the need for the Monarch to partake in a head-counting exercise), exaptation eschews sweeping, holistic and top-down normative theorising in favour of practical, incremental and short-term solutions. It is the opposite of effecting large-scale, system-wide reforms through ‘constitutional engineering’.Footnote 82 Methodologically-speaking, exaptation relies on some form of small-scaleFootnote 83 ‘tinkering’ to bring about impactful changes, as well as on continuous trial-and-error to test the extent of exaptation’s constitutional durability.
We argue that the exaptational approach to problem-solving is appropriate to the Malaysian context for the following reasons. First, because of the Malaysian penchant for agenda-driven politicisation and dramatisation of constitutional issues, large-scale constitutional engineering may end up producing results which generate constitutional friction and standoffs.Footnote 84 For example, attempts to dive headlong into a constitutional dialogue about the scope and extent of monarchical discretion under article 43(2)(a) − such as by proposing to explicitly set out the terms under which the monarch may exercise their discretion − may lead to protracted impasses that block rather than promote constitutional progress. The larger the scale of constitutional reform, the larger the number of stakeholders involved, the more difficult it is to arrive at a constitutional answer that is truly fit-for-purpose rather than one that is simply group-conciliatory. The constitutional discussion may turn into a gruesome and gruelling ‘everlasting conversation’.Footnote 85 Moreover, because of the importance of getting large-scale reforms ‘right’ the first time round, the corresponding need for caution may delay the process of change. The result may be all-talk and no action.
By contrast, the ‘light touch’ offered by constitutional exaptation sits at a careful middle ground between total inaction and over-reaction. What the exaptational spirit offers is not blind ad hoc-ism but mindful opportunism. By accepting as viable constitutional solutions which are temporaryFootnote 86 and clearly imperfect, exaptation’s stop-gap measures function to hold the fort whilst careful planning is carried out to ensure that large-scale constitutional engineering over the longer term can be executed when the constitutional system has achieved the necessary level of maturity. The monarchical discretion context is a paradigmatic instance that perfectly illustrates when and how exaptation can be useful: when a particular matter is highly sensitive, when it is insulated from critical public discourse, and most importantly, when there is as of yet no clear vision as to what the desired goal would or should look like. These features, collectively, render a constitutional matter unsuited to the type of black-and-white treatment that arises under the standard constitutional process.
The limits of constitutional exaptation
As HLA Hart said about law, it ‘brings its solid gains at a certain cost’.Footnote 87 So too with constitutional exaptation. The value of these exaptational benefits cannot be properly evaluated without also giving due regard to its corresponding costs. These costs can be both general (in relation to the nature of exaptation itself) or specific (in relation to its concrete use as a legal tool).
Exaptation is at its core an exercise in hindsight, for it hinges on the discovery of happy coincidences after the legal feature has been developed for its original purpose. Left to its own passive devices, the benefits that can be reaped from constitutional exaptation are few and far between, because they rely on the political stars to align. Take this hypothetical example: the paracetamol drug reduces fever by blocking the nervous pathway that leads to fever. Incidentally, the very same blocking also reduces pain. Now, if we relied on fortuitous happenstance for the latter function to be discovered, many a person would need to have endured excruciating pain before it was realised that the fever medicine could also work as a painkiller. By contrast, a more active approach to reaping the benefits of exaptation entails identifying first and foremost the logic behind the benefit in question (say, the mechanism of neural blocking to alleviate fever) then taking the initiative to find other areas in which the same logic may have an application (neural blocking to alleviate pain). Note that the real value to the exaptational discovery is: what can we do with this information once we have it? Returning to the paracetamol example, once we know that paracetamol can also be used to treat pain, rather than focusing one’s efforts on designing painkillers anew, pharmacologists can instead make better use of their time improving on the way paracetamol treats pain; e.g. improving the medicine’s absorption rate in the body (so that it works faster) or reducing the side effects that might result from its use.
In the context of article 49A, once the provision’s underlying logic (the need to counteract the centrality of party politics) is identified, it behoves the constitutional theorist to first ruminate on the potential areas in which party-hopping creates a constitutional problem and then assess how article 49A conditions the way one goes about solving that problem moving forward. In the case of article 43(2)(a), article 49A alerts us to the notion that top-down normative theorising is not merely undesirable (as previously explained) but also unnecessary, for there are – in keeping with the zoological theme – many ways to skin a cat. The exaptational use of article 49A is itself an exemplification of an incremental solution that disrupts very little else of the entire constitutional apparatus but nevertheless manages to partially solve the monarchical discretion problem in a targeted, efficient and effective way. Another possible example may be, for instance, preventing the use and abuse of performative or symbolic resignations where, in an attempt to ‘save face’ an MP atones for their wrongdoing to the party by merely voluntarily resigning from the party, yet still gets to keep their parliamentary seat. Article 49A effectively eliminates any incentive for such voluntary resignations to take place willy-nilly, since the price of doing so is now high – one’s parliamentary seat.
At the same time, the workings of constitutional law are not exempt from the common-sense maxim of ‘there is no free lunch’. To reap the exaptational benefits, we must be willing to bear the costs. In the evolutionary biological context, when the thermoregulatory function of bird feathers underwent exaptation to enable flight, the new benefit of flying comes at the cost of birds now having to eat more (that is, to spend more effort in finding more food) in order to keep up the caloric intake necessary for flying. In the case of law, as Hart reminds us, the benefits of ‘adaptability to change, certainty, and efficiency’ come at the cost of ‘the risk that the centrally organized power may well be used for the oppression of numbers with whose support it can dispense’.Footnote 88 In the case of the constitutional exaptation of article 49A that we have examined in this article, the benefit comes at the cost of fortifying the position of party leaders and entrenching partisanship to the detriment of democracy in the long-run.
As noted earlier, article 49A trades the independence and judgment of the parliamentarian for party discipline. In practice, party leaders can now wield substantial and significant power over their members. Article 49A(1) gives party leaders the ability to sack dissenters from their parties and thereby strip them of their seats. This may make party leaders too powerful. Article 49A(2) attempts to ameliorate this by reducing the power of party leaders, but this in turn undercuts the efficacy of article 49A(1). Parliamentarians may, for instance, declare support for the other party without resigning and daring their party leader to sack them. Party discipline, on the one hand, and the independence of individual parliamentarians, on the other, thus appear to be mutually exclusive possibilities. If we cannot have our cake and eat it too, then perhaps the next best option is to buy more cakes – that is, to find other legal or political means to fill the loophole that inheres in article 49A. For instance, party constitutions can include more stringent requirements on what exactly counts as an expellable offence: perhaps outwardly declaring an intention to join an opposing party would count as such, but merely agreeing with the policy of an opposing party would not.
Ultimately, it is important that the constitutional theorist remains fully alert to where exactly the exaptational solution sits amongst the host of available constitutional tools. Specifically, one must be mindful that exaptation is not − and is never meant to be − the primary, normatively ideal method of constitutional change. Instead, one must see exaptation for what it actually is: a tool that the Malaysian constitutional system has stumbled on by chance, and a tool that works well as a second-best alternative. In other words, because the legitimacy of exaptational solutions rests on purely pragmatic grounds, it is exaptation as applied to the Malaysian constitutional system, rather than exaptation in itself, that is normatively desirable.
Conclusion
When explaining the principle of parliamentary sovereignty under the UK Constitution, Albert Venn Dicey famously wrote that, legally, it means that Parliament can make and unmake any laws as it pleases, but politically, the power of the legislature is of course strictly limited by realpolitik. Legally, Parliament can pass a law requiring that all blue-eyed babies be killed, but politically, ‘legislators must go mad before they could pass such a law and subjects be idiotic before they could submit to it’.Footnote 89 Any legislature that ever attempts to pass such a law risks destroying the entire constitutional edifice that it relies on. Problem-solving within a constitutional system of realpolitik is a delicate business. It is like a house of cards. Make one wrong move, and the whole thing can come tumbling down. Like Neurath’s boat, any change must be carried out one plank at a time.
To return to Ronald Dworkin’s doughnut metaphor that we started this article with, constitutional discretions are doughnut-shaped: an open area of discretion that exists at the centre is circumscribed by a ring of restrictions around it.Footnote 90 The restrictions are both legal and political. Baking this doughnut requires constant attentiveness and adaptability. Ferment dough in too warm a temperature to shorten the fermentation time, and you will get a degraded bread structure that prevents it from rising properly in the oven. There will be no doughnut. Provoke constitutional change in an area of great sensitivity at too radical a pace, and you might get a doughnut that collapses in on itself.
Within the Malaysian constitutional system, power structures in reality do not necessarily mirror those delineated in the Federal Constitution. The institution of the monarchy and the scope of monarchical discretion are a prime example. What constitutional actors in practice end up doing – and are allowed to do – is more often determined either by their position within the public perception (such as monarchical reverence) or alternatively by brute force (such as the Machiavellian opportunism exhibited in the party-hopping saga). Confronting the problem head-on with idealistic, large-scale constitutional alterations might therefore not be a realistic option, for it might – as a result of those extra-constitutional forces – be easily overridden or fail to take root altogether. By contrast, constitutional exaptation, with its unassuming, blink-and-you-will-miss-it approach, matches practical politics with pragmatic solutions. Article 49A of the Federal Constitution’s indirect and inevitable shrinking of the scope of monarchical discretion without bringing up the question of monarchical power altogether is a case in point. That the exaptation-based solution might create new problems elsewhere – such as the fortification of the position of party leaders and entrenchment of partisanship – may render it deficient but not incurably defective. The constitutional machinery lives on to adapt and be exapted for another day.
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