Constitutional issues to the fore


AS in life so in law, a host of factors have to be examined holistically before any significant decision or determination can be made. This is the situation the body-politic is facing today.

The prescriptions of the federal and state constitutions have to be read in the light of the grim realities of social, economic and political life.

Covid-19 is raging. Many sectors of trade, commerce and education are under partial lockdown. There is political instability at the federal level. The sinister possibility that some Dewan Rakyat MPs may “cross the floor” means the passage of Budget 2021 is not assured.

Despite the insidious fallout of the snap election in Sabah on Sept 26, we are required to comply with the constitutional requirement to hold a by-election in Batu Sapi, Sabah, on Dec 5; in Gerik, Perak, by Jan 16; and Bugaya, Sabah by May 16.

A dissolution of the 82-seat Sarawak Assembly on or before June 7 next year is on the cards and this will require a state election within 60 days.

The panacea of a nationwide emergency proclamation has already been rejected by the Yang di-Pertuan Agong and we have to search for alternative legal solutions.

The best legal minds are engaged in the quest and the following paths are being explored.

Budget authorisation: Budget 2021 has many contentious provisions. Due to that, it may not get past the parliamentary Rubicon.

There will then be no parliamentary authority in the new year to raise any more taxes or spend any public money. Covid-19 costs will not be met. Civil servants, the police, army and Cabinet ministers will not be paid unless a new government succeeds in piloting the Budget through!

To meet this grave situation, the present government may, while the Budget debate is still going on, rely on Article 102.

The Article provides that even before the passing of the Supply Bill, Parliament may authorise expenditure for the whole or part of the year for any service or circumstances of unusual urgency.

Perhaps the contentious proposals in Budget 2021 could be separated from the operational expenses. For the latter, bipartisan support could be forged under Article 102 to keep the public services humming.

The ultimate fate of the Budget may, however, make or break the government.

Most scholars believe a defeat on the Budget implies a vote of no confidence. To this British convention, a few qualifications must be noted.

First, our Constitution is silent on Budget defeats. In Article 43(4), it talks of the Prime Minister ceasing to command the confidence of the majority of the members of the House. This means the Budget must be defeated by an absolute majority of at least 112 out of 222 MPs. A simple majority of those present will not be enough.

Second, a partial defeat may not amount to a defeat. For example, in 1994, the then UK government was defeated on a proposal to increase the rate of VAT on fuel. This forced the Chancellor to bring forward a new package to deal with the loss of revenue but it was not fatal to the government.

Third, under the terms of the UK’s Fixed-Term Parliaments Act 2011, confidence votes must now be specifically worded to trigger a general election.

This means a government defeat on a budget measure – even one of major significance to a government’s financial plans – would not necessarily bring down a government today, though it is likely that it would face a vote of no confidence shortly afterwards.

Role of the King: Under Article 43(4), if the PM loses a vote of confidence, he must resign or advise dissolution. With elections out of the question due to the Covid-19 affliction, His Majesty has a number of difficult but history-making choices in choosing a PM.

First, in the exercise of his discretion under Article 43(2), the King can consult with the Conference of Rulers but is not bound by its august advice. The Constitution reposes the responsibility in him.

Second, he may appoint an acting or interim PM while he reflects on his choices. There is no constitutional time limit to the tenure of the interim PM. There is nothing to prevent the King from appointing the defeated PM as an interim head of government.

Third, in determining who is likely to command the confidence of the House, the King has wide but not absolute discretion.

After the Perak (former mentri besar Datuk Seri Mohammad Nizar Jamaluddin) precedent, His Majesty can take the realities within or outside the House into consideration.

Fourth, if no one has the support of an absolute majority, the King can appoint a minority government to hold the fort. The minority government may consist of the largest party or faction in Parliament.

Fifth, the King may play the role of statesman and try to forge a unity government of all factions pending a general election. The PM may be a compromise candidate who is a non-party or a minority party person who is temporarily given the support of a sufficient number of MPs from the various parties.

In sum, in a “hung Parliament”, the King’s discretion is very broad.

Amendments to Articles 55(3), 55(4) and 54(1): Article 55(3) provides that unless dissolved earlier, the life of Parliament shall be five years. A similar provision is found in Schedule 8, Rule 9(3), that State Assemblies have a life of five years. Article 55(4) provides that whenever Parliament is dissolved, an election shall be held within 60 days. Article 54(1) requires that any casual vacancy shall be filled within 60 days.

The only way to avoid the prescriptions of these Articles is to declare an emergency and suspend these Articles of the Constitution.

However, the proclamation of emergency is not acceptable to many people and so a private member’s proposal is in the offing to request the government for a constitutional amendment to provide that notwithstanding anything in this Constitution, an election shall not be held while the Covid-19 pandemic ravages the nation.

This proposal will have to include provisions for determining who will determine when conditions have reached such normalcy that regular elections or by-elections can be held.

Sarawak state election: Layar Assemblyman Gerald Rentap Jabu has called for the current State Assembly’s term to be extended by up to a year in response to the growing menace of the current Covid-19 onslaught.

He has suggested adding a clause to the Sarawak Constitution to the effect that “the current Assembly continues for up to six years (instead of the current five years) from the date of its first sitting; or until the date on which the Federal Parliament is next dissolved, whichever comes first.”

Well-meaning though this proposal is, it clashes with Schedule 8, section 9(3) which limits state assemblies to five years. The proposal must, therefore, wait till the Federal Constitution is amended to permit this innovation.

The challenges are indeed many and all of us who love the nation must put our heads and hearts together to tackle the manifold crises the country is facing.

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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