State polls: Some constitutional issues

STATE electoral results have no bearing on the formation or continuation of the Federal Government.

Elections are democracy’s iconic exercise, and it is hoped that there will be a good turnout on Saturday (Aug 12) and that the 9,773,571 eligible voters will exercise their democratic right and responsibility in a peaceful, fair and clean electoral exercise.

Hopefully, the majority of the voters will base their vote on the capability and integrity of the contestants and on the issues of public interest that the candidates or their parties espouse or fail to espouse. Hopefully, identity politics will not be the determining factor.

All in all, there are 570 candidates in 245 contested seats in the six states holding the polls. Sixty-three constituencies are multi-cornered contests.

Today’s column does not seek to predict the results but to clarify some constitutional issues.

One is the myth being spread around that the electoral result is a referendum on Prime Minister Datuk Seri Anwar Ibrahim’s right to govern.

It is alleged that if Anwar loses Selangor or Penang or Negri Sembilan or fails to increase or retain the Malay vote obtained in the 15th General Election (GE15), then he will have to resign and Perikatan Nasional will take over the reins of power in Putrajaya.

This view has no constitutional basis.

In 25 or so federal systems around the world, the federal and state governments are separate and independent of each other.

There is no law mandating that federal and state elections must be held together. Even if they are held simultaneously, sophisticated voters are known to split their votes between the federal and state candidates.

It is not uncommon for the federal government to belong to one party or coalition and for some or all of the state governments to belong to another.

State electoral results have no bearing on the formation or continuation of the federal government. As scholar Hafiz Hassan has commented: "The six state elections on Aug 12 are elections to the six state assemblies and to the six state governments. They are not referendums on the Federal Government".

The power to appoint (and possibly to remove) the federal PM belongs to the Yang di-Pertuan Agong under Article 43 of the Federal Constitution.

In exercising this discretion, the King is directed by Article 43 to appoint as PM a member of the Dewan Rakyat who “in his judgment is likely to command the confidence of the majority of the members of that House”.

As long as the Unity Government commands this confidence, its position is secure no matter what happens at the state level.

The PM’s popularity at public opinion polls, the percentage of popular votes his coalition obtains, and the popularity or lack of popularity of his government in the states, is not relevant to the legal right of the Federal Government to remain at the helm as long as the PM enjoys the confidence of a minimum of 111 out of 221 MPs in the Dewan Rakyat (one seat is vacant at the moment).

PM Anwar enjoys a comfortable 147 out of 221 seats.

Could this majority evaporate? There are three probabilities, unlikely though all three are.

First, a partner in the coalition could walk out after the Aug 12 results. Despite the new anti-hopping law in October 2022, a party or coalition is not barred from a collective realignment. The law allows coalitions and parties (as opposed to individual MPs) to make new alliances.

So, UMNO with 26 MPs or GPS with 23 MPs could walk out. Unless both do it together, Anwar's government will still retain its comfortable majority. Umno’s 26 MPs cannot cause the fall of DSAI’s government with 36 extra votes.

A second possibility being talked about is that individual MPs from the unity government could vote against the PM while not resigning from their party.

Some experts have opined that all MPs have a constitutional right, while remaining in their party, to sign Confidence and Supply Agreements with anyone and to support anyone for the post of PM even if that be against their party leader’s directive.

This was indeed the law in the apex court decision of Nordin Salleh (1992). However, the law has undergone significant changes since the October 2022 anti-hopping amendments. Under the 8th Schedule, three categories of MPs will be guilty of hopping and will have to vacate their seats if:

• They resign from their political party or coalition;
• They cease to be a member of that political party or coalition; or
• Being an Independent MP, they join a political party or coalition.

Though the Constitution’s new section 7A(1)(a)(ii) of the Eighth Schedule does not define the term “ceasing to be a member”, it will likely amount to ceasing to be a member of the political party or coalition if an MP votes with the Opposition on a vote of no-confidence and goes against his party’s wishes.

On a report being received, the Speaker of the House is the ultimate arbiter of whether a seat has fallen vacant, and a by-election has become imminent.

It is humbly submitted that the anti-hopping law was meant to strengthen political parties. It “constitutionalised” political parties by mentioning them for the first time in our Constitution.

In the definitional clause, a "party" includes a coalition of parties. The law is meant to allow coalitions and parties to make new alliances but not individual members.

An individual MP cannot have it both ways – remain a member of a party but be disloyal to its collective policies.

MPs tempted to hop should also bear in mind the court judgement of RM10mil against former PKR vice-president Datuk Zuraida Kamaruddin for breaching the bond with her party.

Third, in the post-Aug 12 era, there could be a Motion of no-confidence in the Dewan Rakyat. Such a motion, though not mentioned in the Constitution, is implicit in Article 43(4).

The problem is that a Motion of Confidence is not specifically provided for in the Standing Orders of the House.

The procedural difficulties of introducing one are many. Government business has precedence over Private Members’ business. The Speaker has wide discretion to permit or not permit a discussion of a definite matter of urgent public importance.

In any case, if a motion of no-confidence passes, the PM is not helpless. Instead of resigning, he can advise a premature dissolution and then it will be up to the Yang di-Petuan Agong’s wise discretion and statesmanship whether to allow a new election or appoint somebody else as PM under Article 43(2).

The law’s possibilities are many and one can only hope that post-Aug 12, there will be a government with stability, integrity and a courageous vision to return us to the path of peace, progress and harmony.

Emeritus Prof Shad Faruqi is Holder of the Tunku Abdul Rahman Chair at the Faculty of Law, Universiti Malaya.