Monday, September 15, 2008

Sept 16th- Constitutional gymnastics or Apocalypse now ?

The major question that Malaysians are wondering is how would Anwar over come the constitutional wrangle of forming the new government and even if the Dewan is summoned and a vote taken and Anwar is endorsed, wouldn’t the proper procedure is for the King to dissolve the Dewan and for fresh parliamentary elections to be held?

The Prime Minister and the Cabinet remain in office as long as they command a parliamentary majority. If there is a vote of no confidence or if defections from its fold rob the ruling party of its majority, then under Article 43(4) the prime minister has two choices.

> First, to resign and pave the way for the King to appoint someone else as prime minister.

> Second, to advise the Yang di-Pertuan Agong to dissolve the Dewan Rakyat and call fresh elections.

Role of the King: Under Article 40(1) the King is a constitutional monarch who is bound to act on advice. But in a number of enumerated situations he is constitutionally entitled to act in his own discretion. Dissolution of the Dewan Rakyat is one such area: Article 40(2)(b). The King may pick from a whole range of possibilities.

> First, he may accept the advice to dissolve the Dewan Rakyat and, in keeping with a long-standing constitutional convention, allow the prime minister to remain in office as a caretaker leader pending the election and the summoning of the new Dewan Rakyat. This period can last 120 days from the date of dissolution: Article 55(4).

> Second, the King may accept the advice to dissolve the Dewan but insist that the prime minister and Cabinet must vacate their office. The King may then appoint a neutral, caretaker government from within the previous Parliament to pilot the nation through the election period. This exceptional course of action has never been resorted to in Malaysia. But it has legal basis in Article 43(2).

> Third, the King may reject the advice to dissolve the Dewan Rakyat. Instead he may explore the possibility of appointing a new prime minister who, in his judgment is likely to provide a stable and viable government. There are fascinating possibilities as to who may be chosen.

Motion of no-confidence: The Federal Constitution in Article 43(4) clearly envisages the possibility of a government being defeated on a motion of no-confidence. However, the Standing Orders of the Dewan Rakyat have no specific provision for such a motion.

It is a matter of interpretation by the Speaker as to which Standing Order must be invoked to table this motion. What is certain is that what the Constitution permits, no lesser law can forbid. Depending on which Standing Order is invoked, a notice of 14 or 7 or 1 day(s) must be given.

If a motion of no-confidence passes, then under Article 43(3) & (4) the entire Cabinet and not just the prime minister must step down: Datuk Amir Kahar vs Tun Mohd Said (1995).

A government facing a motion of no-confidence can hit back by advising the King under Article 55(1) to prolonge the Dewan for a period up to six months. It is a contentious issue whether a constitutional monarch can refuse such partisan, undemocratic advice.

Party-hopping: Defection refers to the phenomenon of Members of Parliament elected by the rakyat on one party ticket, switching camps during mid-stream.

A variety of measures exist to curb this practice. In some countries any one who defects loses his seat but is allowed to return to the electorate at a by-election to regain his mandate. In other countries a defector is barred from holding any remunerative political post for the remaining tenure of the legislature unless he is re-elected.

In some countries the size of the Cabinet is prescribed by law so that there is no temptation of offering Cabinet posts as incentives to cross the floor.


Assuming that all these problems are overcome, and an Anwar government is established in Putrajaya with a slim majority, what guarantee is there that the UMNO-BN opposition will not try to topple the new government?

The melancholic fact is that this is the inevitable phase of new politics in Malaysia.

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