Easier said than done
Thursday, 18 September 2008 08:42am
©The Sun (Used by permission)by Husna Yusop
OPPOSITION leader Datuk Seri Anwar Ibrahim told a news conference on Tuesday that more than 31 Barisan MPs have agreed to cross over to Pakatan Rakyat. However, he refused to reveal the names of the MPs. Anwar said he was committed to ensuring the takeover of government was constitutional.
Is taking over a government and forming a new government that easy? What is the process prescribed in the Federal Constitution? theSun talked to constitutional law expert Prof Dr Shad Saleem Faruqi to seek the answers.
Once 30 or 31 MPs from BN cross over, PR forms the next government. Is it that simple?
Shad: It’s not that simple. Because, under the Constitution, the Agong cannot dismiss the prime minister, the Parliament must dismiss the PM. And at the moment, the Dewan is not in session. If there is a vote of no confidence on the PM, it must be in the Dewan
A clear case is the Stephen Kalong Ningkan vs Tun Abang Haji Openg & Tawi Sli 1967. The court said once the chief minister is appointed, the governor cannot dismiss him unless the assembly passes a vote of no confidence. At that time, there was a stalemate between Sarawak CM (Stephen Kalong Ningkan) on the one side and the assembly and the governor (Abang) on the other.
So, Anwar cannot just march to the King and demand to be sworn in as the new PM as he has got the numbers? Is the King bound by the law to swear Anwar in as the PM?
Yes, Anwar said they are going to the Istana. They are most welcome to the Istana; they can have nice tea there, I’m sure, but nothing more than that.
A piece of paper with 112 names is not enough. Anyone can write their names. It has to be on the floor of the house.
And, under Article 43 of the Constitution, the PM has two options once Parliament approves a motion of no confidence against him. He can either step down or advise the Agong for a dissolution of the Dewan. He has got those choices.
However, the King can say no to the dissolution of Parliament under Article 40a (2) (b). Then, in this case, the PM will have to step down.
When PR said they will take over the government in the nearest possible time, how soon would that be?
The Dewan is in prorogation now. It will only resume in October after Hari Raya. But the PM can postpone the Dewan sitting. He is entitled to keep the suspension. Without giving any reason. That is his discretion.
Under Article 55 (1), the Agong on the advice of the PM can allow six months to elapse between one sitting and another. So he may just do that. It is untenable, democratically speaking, but PM Datuk Seri Abdullah Ahmad Badawi can rest for another six months.
If Abdullah decided to postpone the Parliament for six months, what is the implication?
It would create a lot of problems. It would be legal but not morally proper. If he knew there were doubts about his administration, his government, he must call the assembly.
If Abdullah does not extend the prorogation and by Oct 13, PR has got enough numbers, can they form the new government immediately?
They can call for a motion of no confidence against the PM but the standing order of the Dewan is silent about this. There is no mention of vote of no confidence in the standing order. But there is mention of other motions.
So, what needs to be done is for the MPs to introduce some other motions. An MP, any MP, can introduce a motion. But then, it will have to be decided by the Speaker and he would first need enough number of MPs to support it, and then debate it, then only he will accept it.
What are the options available to the government to thwart this?
Legally, they can’t do anything unless the Agong decides to do something. If the PM says he does not want the Parliament to resume in October, he can advise the Agong on this. But, the Agong may not listen. He can do that. If he does that, it means he disregards his duty to listen to the Constitution (because the Agong should act on the advice of the PM). But what can you do? You can’t take the Agong to court. For instance, like in the case of the appointment of Terengganu Mentri Besar whereby the King, or rather the Sultan, had defied the advice of the PM.
So, their (BN government’s) best recourse is to try to work with the Agong, with the hope that the Agong will follow the Constitution.
If the government is properly elected to power, we must follow the rules. If a government is formed according to the law, it must be dismissed according to the law. And the law says, there must be a vote of no confidence.
What do you say of PR’s intention to hold fresh elections within six months to a year of it gaining control of Parliament?
First of all, they are not in power. So, this is all speculative. The government in power is still holding majority of the seats in the Dewan.
So, I do not want to speculate about that. Sivarasa’s statement was just meant to create uncertainty. (On Friday, the PKR vice-president said PR plans to call for an early general election if it comes into power to dispel worries its targeted takeover of the government might be undemocratic or unethical.) They need to have enough members first. They should have the numbers by now.
All parties have plans once they come to power. All parties have their own manifesto. Everyone is allowed to dream. That’s the basic need. But, the reality on the ground is, there is no clear evidence that the current government is losing its support in the parliament.
Article 40a
(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say -
(a) the appointment of a Prime Minister;
(b) the withholding of consent to a request for the dissolution of Parliament;
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting and in any other case mentioned in this Constitution.
Article 43
(4) If the Prime Minister ceases to command the confi dence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.
Article 55
(1) The Yang di-Pertuan Agong shall from time to time summon Parliament and shall not allow six months to elapse between the last sitting in one session and the date appointed for its first meeting in the next session.
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EXPOSITION EDUCATIONALLY REFRESHINGwritten by Stephen Tan Ban Cheng, Thursday, September 18 2008 04:18 pm
The exposition on the Royal Prerogratives is indeed educationally refreshing. I certainly hope it does not come to that. Even if it does, it will be interesting to see the actual exercise of this prerogative for the first time. Stephen Tan Ban Cheng
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