Fixed Term Parliament Act – One idea, four variants, four questions

An advantage: Like midterm exams that force students to work hard throughput the whole year, mid-term elections force governments to pay attention to voters’ preferences throughout the parliamentary term of five years. — FAIHAN GHANI/The Star

REFLECTING different expectations, at least four questions have been raised about the proposed “Fixed Term Parliament Act” (FTPA) regarding government’s full term, political stability, election date and simultaneity of federal and state elections.

As the government has not produced a green paper, let alone a Bill, to facilitate public deliberation, many comments have been made based on everyone’s own understanding of what form the Bill would take.

Most assume that the FTPA for Malaysia would be a carbon copy of the FTPA in Britain which existed from 2011 to 2022. The only concrete proposal – though short of a draft Bill – grounded on Malaysia’s reality has been advocated by Project Stability and Accountability for Malaysia (Sama) and the Coalition for Clean and Fair Elections (Bersih).

Before we answer the questions, let’s examine the idea of “fixed term Parliament” and its variants.

Special feature

We must first recognise that this term is specifically relevant for parliamentary democracies. In presidential democracies (like the United States and Indonesia) and semi-presidential democracies (France, South Korea and Taiwan) where the legislative and the president are elected separately, either the legislature must serve a full term or early dissolutions only happen in extraordinary circumstances. Hence, fixed-term legislatures are a built-in feature of presidentialism and semi-presidentialism without additional law.

In parliamentary democracies, voters can only elect parliamentarians who directly or indirectly elect the prime minister, resulting in “fusion of powers” rather than full “separation of powers”.

Because the PM and, by extension, his/her ministers are appointed by Parliament, Parliament must therefore have the power to dismiss the PM and Cabinet via no-confidence votes. Without the power to fire the government, Parliament cannot have effective oversight on the Executive.

In return, to avoid a popular government being held to ransom by parliamentarians who may have lost public support, an ousted PM is given the power to seek early dissolution. Without an FTPA, a PM can seek early dissolutions at his/her electorally most opportune time even without losing support. The head of state – the monarch – is normally given the discretionary power to withhold consent to a PM’s request but in many established parliamentary democracies, especially Constitutional monarchies like Malaysia’s, the head of state would not usually stand in the way.

Four variants

A Fixed Term Parliament is a simple but powerful idea: a Parliament should serve its full term. What happens if the PM loses his/her majority? If a fresh election is allowed, will the new government be given a new full term? Can the head of state withhold consent to early dissolution? Can the election date be fixed?

Different answers to these four questions can produce at least four variants of FTPA.

In the strictest variant in Norway, Parliament must serve a full term, a new government will be formed from the same Parliament if the sitting government is ousted.

In the next strictest variant, in Sweden and Scotland, when a government is ousted, a “special election” is an option, but the new government can only serve the remaining term, like how winners in our by-elections can only serve the remaining term. This reduces the incentive for the Opposition to force a new election.

Even less strict is the UK model, which allows early elections – with no room for the monarch to withhold consent – in two extraordinary circumstances: the government loses its majority; or two-thirds of parliamentarians pass a motion for early elections.

The model proposed by Projek Sama and Bersih is a modified form of the UK variant, maintaining the two exceptional circumstances for early dissolution but designed to be implemented without any Constitutional amendment. The Yang Di-Pertuan Agong’s power to reject a PM’s request for early dissolution is completely left untouched. So is the Election Commission’s power to decide on an election date.

Four questions

Now let us answer the four questions that often appear in the debate on FTPA, based on the Projek Sama-Bersih proposal.

1. Can an FTPA guarantee a government a full term?

No. No variant of the FTPA discussed above guarantees a government a full term. A parliamentary democracy ceases to be democratic if the government cannot be removed by Parliament.

2. How can an FTPA stabilise Malaysian politics?

First, it can define “loss of majority” and restrict it to passing a no-confidence motion, defeat of a confidence motion, and defeat of a supply Bill (national Budget) to exclude the counting of statutory declarations. As a package, an FTPA should instead entail amendment to Dewan Rakyat Standing Orders to prioritise motions of confidence and no confidence. Together with the anti-party hopping law, this allows parties but not rogue parliamentarians to oust an unpopular government.

Second, the PM’s power to seek early elections has to be shared with fellow parliamentarians. This can strengthen coalition governments by necessitating consensus. For example, PM Datuk Seri Anwar Ibrahim cannot dissolve Parliament if there is no agreement from coalition partners Barisan Nasional and Gabungan Parti Sarawak.

Third, without either of the two exceptional circumstances mentioned, the 15th Parliament will stand dissolved at the end of Dec 18, 2027. People can make plans, from investments to weddings, without having to worry about disruption caused by early elections. Ministers and government agencies can also make policies and plans with clearer timelines. If this default date of automatic dissolution is widely accepted, any plot to cause instability will be condemned by the public.

3. Can an FTPA fix the election date?

Not without Constitutional amendment. However, without early elections, we know that the 16th General Election would be held around January/February 2028. That predictability already makes lives easy for many.

4. Can an FTPA impose simultaneous federal and state elections?

No. Unless we are prepared to amend both the federal and state Constitutions to rigidly fix election dates as in Norway, Sweden or Scotland, it is not possible for an FTPA to prevent separate elections. In Scotland, the FTPA chooses to do the opposite: the Scottish parliamentary elections must be delayed one year if it would clash with the UK national elections.

Separate dates for national and subnational elections are common in parliamentary democracies in, for example, Australia, Canada, Germany, India and the UK. Like midterm examinations which force students to work harder the whole year long, mid-term elections force governments to pay attention to voters’ preferences throughout the parliamentary term of five years.

Prof Wong Chin Huat is deputy head (Strategy) of UN Sustainable Development Solutions Network Asia Headquarters at Sunway University. He is also a member of Project Stability and Accountability for Malaysia (Projek Sama). The views expressed here are solely his own.

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