Has the game of numbers ended?
Mahathir had ceased to command the confidence of the majority yesterday when UMNO-PAS rallied behind Muhyiddin. This changed this morning according to Mahathir’s press statement as well as Pakatan Harapan’s statement.
Mahathir claimed to have the confidence of the majority in Parliament. Muhyiddin claimed to have the same. And then suddenly, this evening, the palace announced that Muhyiddin will be the Prime Minister (PM).
Despite the announcement by the palace, Mahathir still claims to enjoy confidence of the majority.
What happens now?
It is indisputable that Mahathir is the PM until Muhyiddin is sworn in. Again, I emphasise that there is no such thing as an interim PM, you are either the PM or you are not the PM. News reports should not be peddling this political term because it leads to confusion.
Based on Article 43(4) of the Federal Constitution, the PM shall resign if he ceases to command the confidence of the majority. As we have seen over the past week, confidence is a dynamic thing. In Malaysia, the confidence of MPs curiously changes every day (aptly captured by the Malay word “lalang”, which is used to describe people who often change their minds, like weeds being blown in different directions by the wind).
How then do you determine confidence? And at which point?
In my view, there has always been only one viable solution to this mess – the Yang di-Pertuan Agong (YDPA) should have rejected all extraneous evidence (statutory declarations, interviews, group gatherings, etc.) in determining whether a PM has ceased to command the confidence of majority because such evidence is completely unreliable and the MPs are clearly not true to their word.
The YDPA should have insisted on having the confidence tested in the Dewan Rakyat by way of a vote of no confidence, where MPs cannot retract or change their positions after that.
This is and should have been the practice from the start.
As we can see, statutory declarations in Malaysia are unreliable and they change day by day.
The YDPA had a chance to rectify the problems caused by Zambry’s case in the Perak crisis and Musa Aman’s case in the Sabah crisis. Those cases are perfect examples of how damaging judicial decisions can be, when decided wrongly.
In Zambry’s case, the Federal Court found that the Ruler could rely on extraneous evidence (statutory declarations) in determining whether the Chief Minister had ceased to command the confidence of the majority.
Likewise, in Musa’s case, the High Court found that the Yang Dipertua could rely on extraneous evidence (again, statutory declarations) in determining whether Musa Aman lost the confidence of the majority. Here, the Federal Court still has a chance to rectify the legal mess as the matter is pending in court.
Therefore, I would argue that until a no-confidence vote is brought and passed in the Dewan Rakyat, Mahathir, being the current PM, should continue as the PM.