Observe the spirit of the Constitution


THOUGH the pandemic rages and the economy plummets, the wheeling and dealing to secure advantages for themselves remains the pastime of many leaders on both sides of the political divide. The rakyat is generally fed up and is reacting with disdain. It yearns for ways to put the nation back on track.

Regrettably, there are no simple solutions. Any course of action must show fidelity to the Constitution and laws, and must fit in with our system of parliamentary government and constitutional monarchy.

Over the last few weeks, students, colleagues and commentators have put forward the following solutions to navigate our troubled waters.

Emergency Proclamation: To combat the health, economic and political crises, the Prime Minister should advise the Yang di-Pertuan Agong to invoke Article 150(1) to declare an emergency. The emergency may be declared nationally or in any one or more regions.

If an emergency is declared, Parliament can be suspended, and by-elections and the general election can be postponed. This will put a stop to party hopping and to all the secret tricks and horse trading surrounding no-confidence votes.

The government will acquire the power to pass laws and frame budgets through Emergency Ordinances. The Cabinet can remain in place or be replaced by a National Operations Council as in May 1969.

The dangers of an emergency are that it arms the executive with unlimited executive, legislative and financial powers. Emergency Proclamations have no time limits.

These dangers can, however, be mitigated if the new government that is constituted to rule the country during the emergency is a unity government, inclusive of all political groupings, races, religions and regions. All emergency laws could contain a “sunset clause” of six months or one year. An anti-defection law should be at the top of the legislative agenda.

Martial law: Some have inquired whether the military can move in to restore unity, sanity and resolve. I submit that there is no such thing as martial law or military takeover under our Constitution. Whether in 1964 during Konfrantasi with Indonesia or in 1969 following the May 13 race riots, the armed forces acted under civilian control.

Royal intervention: Many commentators are suggesting that in the political uncertainty that is engulfing the nation, the Yang di-Pertuan Agong should take it upon himself, as His Majesty did in February 2020, to determine to his satisfaction who commands the confidence of the Dewan Rakyat. Alternatively, he could give the PM a clear time frame to secure a vote of confidence in Parliament.

Some are suggesting that the King should instruct the Speaker to allow the no-confidence motion to be discussed promptly. If the motion fails, that strengthens the PM. If it passes, the PM should resign but could be reappointed on an interim basis. There is no time limit to how long an interim PM can remain in the saddle.

His Majesty should be wary of party hoppers and should not appoint a new PM till there is solid evidence of political unity and stability. The country does not wish to see a repeat of the political musical chairs that played out early this year in Putrajaya, Sabah, Melaka, Johor, Negri Sembilan, Kedah and Perak.

Minority government: If no party or coalition has a provable and stable majority, the King could explore the possibility of appointing a minority, interim government till a strong and united coalition emerges. In eight parliamentary democracies around the world today – Belgium, Czech Republic, Denmark, Ireland, Norway, Portugal, Spain and Sweden – minority governments are holding the fort.

Alternatively, His Majesty could play the role of a statesman and set up a unity government to steer the ship of state till the next election.

Prorogation or dissolution: There is a suggestion that the November session of Parliament should be delayed for six months from the date of the last prorogation on Aug 27. This will lower political temperatures and defuse the no-confidence motion situation. The problem with this proposal is that the November sitting is meant for the Budget.

The proposal to dissolve Parliament is even more problematic. Under Article 55(4), if Parliament is dissolved, a general election shall be held within 60 days and the new Parliament shall meet within 120 days from the dissolution. Due to the pandemic, and the Sabah misadventure, a general election should be avoided at all cost.

Confidence vote: In our system of parliamentary government under Article 43 clauses (2), (3) and (4), the Cabinet must belong to Parliament and be collectively responsible to it. Under Article 43(4), if the PM “ceases to command the confidence of the majority of the members of the House”, then he must either resign or advise dissolution.

In the July sitting of the Dewan Rakyat, PM Tan Sri Muhyiddin Yassin secured majority support on several issues including a Supplementary Budget. But several motions of no confidence against him have not been allowed to be debated.

The reasons are as follows: Despite the explicit reference to confidence of the House in our Constitution’s Article 43(4), the Standing Orders (SOs) of the House do not have an explicit provision for a motion of no confidence.

Such a motion must, therefore, be proposed as an ordinary Private Member’s Motion under SOs 26-34. Private motions are low down on the Order of Business under SOs 14-15 and government business always takes precedence unless the minister concerned allows a non-government motion to jump the queue.

Successive Speakers have, therefore, felt bound by SO 14(2) and refused to allow a no-confidence debate unless the government against whom the motion is moved gives precedence to the motion.

It is humbly submitted that this “ministerial filter” does not appeal to reason. A government under attack should not be expected to offer assistance to its opponents.

Instead we should rely on our Constitution and subject the SOs to the letter and spirit of Article 43. In similar situations in the past, votes of no confidence were passed in Sarawak (1966), Kelantan (1976) and Selangor (1977).

Though Article 62(1) provides that “subject to the provisions of this Constitution and of federal law, each House shall regulate its own procedure”, it is clear that the procedural powers of the House are subject to “this Constitution”.

There is the additional factor that the SOs do not qualify as “law” under Article 160(2) of the Constitution. They were passed by only one House and do not bear the stamp of approval of all three wings of Parliament. I doubt that they were gazetted. They are mere internal rules.

Can they override the supreme Constitution is a question that may end up in the courts despite SO 99, which gives finality to the Speaker’s rulings on the SOs. Recently, it was held by the UK Supreme Court in Miller v Prime Minister (2019) that though parliamentary proceedings are not subject to judicial scrutiny, the courts can make a declaration if fundamental constitutional principles are being violated.

Another proposed solution is that a motion of no confidence could be taken up under SO 18 as a “Definite Matter of Urgent Public Importance”, which does not require ministerial approval. The learned Speaker of the Dewan Rakyat has held that a motion under SO 18 permits debate but no vote and as such is unsuitable for a motion of no confidence.

It is humbly submitted that nothing in SO 18 explicitly ousts a vote. Therefore, it is arguable that motions under SO 18 can be “discussed” and “disposed of” in the like manner of other motions.

In sum, the Constitution is in flux. Traditional rules of parliamentary democracy are being tested to the hilt.

Emeritus Prof Shad Saleem Faruqi is holder of the Tun Hussein Onn Chair at the Institute Of Strategic & International Studies Malaysia and was recently reappointed to the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are the writer’s own.

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