Monday, September 22, 2008

No short cut to power

No short cut to power
Sunday, 21 September 2008 09:12am
©The Sunday Star (Used by permission)
by Shaila Koshy, Hariati Azizan, Joseph Loh and Rashvinjeet Eedi

What rules govern a battle for the leadership of the Parliament and the country? Can a change of government be as easy as the Opposition has made it out to be?

CAN it be as easy as providing a list of MPs aligned to an alliance to form a new government? Or does the process have to take place in Parliament when it is in sitting?

Right now, Parliamentary Opposition Leader Datuk Seri Anwar Ibrahim says “I’ve got the numbers” and Prime Minister Datuk Seri Abdullah Ahmad Badawi says “Show me”.

There has never been as much debate or speculation over how a change of government can take place as of late because of the Sept 16 deadline set by Anwar. Will it or will it not, can it or can it not? So many questions and so few informed answers.

Right now, there are so many ifs that trying to see it through to a rational conclusion is a mind-boggling exercise, especially when ethics and morals are thrown into the equation.

Shedding light on constitutional politics, law professor at Universiti Teknologi Mara (UiTM) Prof Dr Shad Saleem Faruqi shares in his column in The Star that the system of government in Malaysia allows the Prime Minister and the Cabinet to remain in office as long as they command a parliamentary majority. If there is a vote of no confidence or if defections from its fold rob the ruling party of its majority, then under Article 43(4) the prime minister has two choices.

First, to resign and pave the way for the King to appoint someone else as prime minister. Second, to advise the Yang di-Pertuan Agong to dissolve the Dewan Rakyat and call fresh elections.

Associate professor in political science at Universiti Sains Malaysia (USM), Dr Ahmad Fauzi Abdul Hamid points out that the Opposition can also request for a meeting with the King to convince him that they have the numbers that make up the majority of MPs in Parliament.

“The King then can summon the named MPs and upon being convinced, may give assent for a formation of a Pakatan Rakyat government,” he explains.

Under Article 40(1), the King is a constitutional monarch who is bound to act on advice. But in a number of enumerated situations, he is constitutionally entitled to act in his own discretion, including dissolution of the Dewan Rakyat.

No legal impediment

Constitutional law expert Datuk Dr Cyrus Das further explains that under Article 43(2)(a), the King has to appoint a Prime Minister whom in his judgement, is likely to command the confidence of the majority of the members of that House.

The issue that arises is how one determines the loss of confidence of the majority, and he opines that from past precedents, both methods have been used - “ namely, via a vote in the floor of the assembly or by a signed document or petition.

The question, says Dr Das, is if this loss of confidence entails that the King is obliged to dissolve parliament. The fact is that the dissolution of Parliament is entirely at the discretion of the King, as outlined in Article 40(2).

And going by constitutional convention, determining whether the Prime Minister has ceased to command the confidence of the majority in the Dewan Rakyat is usually by a floor vote.

“Under the Federal Constitution, it is Parliament that must dismiss the PM; not the King,” says former Dewan Rakyat Secretary Datuk Abdullah Wahab.

While the 1966 Ningkan case in Sarawak bears that out, Dr Das points out that in 1994 in Sabah, “the fall of the PBS (Parti Bersatu Sabah) government was determined by a petition signed by a majority of assemblymen stating they had lost confidence in Datuk Joseph Pairin Kitingan as Chief Minister.”

It was held, he adds, “that in the face of a clear majority a floor vote was not necessary.”

But that’s assuming Parliament is in session. But it isn’t; the House is on a break until Oct 13.

Anwar has asked for an emergency session of the Parliament but on Thursday, Dewan Rakyat Speaker Tan Sri Pandikar Amin Mulia said under the House Standing Orders only the Prime Minister can do so.

Even then, there has to be 14 days notice, he added.

Then there is also the fact that the Prime Minister can suspend the Dewan at his discretion for six months, points out Abdullah.

“Then again, I’m not a lawyer but I think 200 MPs - marching to the Palace to say they have no confidence in the PM - would constitute a motion of no-confidence of sorts,” he adds in speculation.

An important person in many of the possible scenarios that could occur is the Yang di Pertuan Agong.

As Universiti Malaya law lecturer Azmi Sharom points out: “If the Opposition wins the vote of no-confidence against the Prime Minister, they will ask for an audience with the King. Constitutionally, the King has two choices; he may dissolve Parliament (which is in his discretion utterly) and new elections will have to be held, or he may request the PM to step down.

“The King can then appoint the person who commands the confidence of the House to be the new PM (again - completely in his discretion).”

The question now is whether, by refusing to convene an emergency session of Parliament, the Prime Minister has unwittingly sent Anwar to the palace doors. How can the Prime Minister and the Barisan government fend off a possible takeover? How clean must they keep their hands, especially if MPs may be jumping ship for a financial consideration?

“Ethically, there is nothing they can do,” says Azmi.

“Un-ethically they may declare an emergency thus suspending Parliament indefinitely and govern via the Executive.

“If they do this, it would mean ruin for the country, particularly economically and for our standing on the world stage.”

A question of morals

On the legality of party-hopping, Dr Das says this has been settled by the 1992 decision of the Supreme Court in the case Dewan Undangan Negeri Kelantan & Anor v Nordin Salleh & Anor.

“Crossovers were declared as legal, as part of the freedom of association belonging to an individual under Article 10 of the Federal Constitution,” he says.

As lawyer Edmund Bon elaborates, “You have the freedom to join any party you want, and this freedom of association also includes the freedom of disassociation.”

When it comes to party hopping, the point of morality arises, and the reasons for them switching allegiances will be questioned.

Says Bon, “Everybody agrees that if they are crossing over for money, it is a corrupt act and cannot be allowed. But what about MPs who no longer believe in the party they originally joined, and now believe in another party to continue the struggle? If they say they can serve the people better with this new party, why should we question that?

“There must be good reasons for a cross-over. These reasons must be made clear and transparent to the people,” says Bon, adding that it is for the people to decide at the next elections if they still trust him.

He cites Parliamentarians in England who do not party hop,

“If they do it, their credibility is gone! But it is so common in Malaysian political culture that we think nothing of it.”

Malaysians for Free Elections (Mafrel) acting chairman Syed Ibrahim Syed Noh agrees that MPs have a right to jump party.

“But they are answerable to their constituents and they owe it to them to give an explanation and try to justify the reason behind their actions.”

Another contention that arises from party hopping is the reason the electorate voted an individual to office - were they voting for the individual and what he stands for, or the party he represents?

As Bon describes, the electoral system in Malaysia is based on the first-past-the-post system. In this system, the candidate that garners the most number of votes in a constituency wins, and the party with the most seats forms the ruling government.

In a proportional representation system, the number of seats in government is determined by the number of votes cast, therefore the party is given a percentage of seats corresponding to the percentage of votes received.

“In this kind of system you cannot party hop because you are voted in for your party line,” Bon says.

However, Malaysia has a constituency-based system - which means that we vote for the person, not the party.

“It has been drummed into our heads that we either vote for Barisan Nasional or the Opposition. We should be voting for what the person stands for,” says Bon, adding that more voter education is needed to correct this mindset.

When push comes to shove, the ideal - and some might say the honorable, morally acceptable way - for an elected representative who wishes to switch parties is for him to step down from his ministerial seat and force a by-election.

Says Bon, “The person can then stand on the ticket of the preferred ‘other’ party. This is to seek a fresh mandate from the people.”

Dr Ahmad Fauzi concurs: “The morally ethical action for an MP who wishes to cross over to a rival party would therefore be to resign and stand in a by-election on his new party’s ticket against a candidate from his previous party.”

However, says Bon, the ruling government in 1990 ensured that this route can no longer be taken today because of the addition of Article 48(6) into the Constitution.

This states, verbatim: A person who resigns his membership of the House of Representatives shall, for a period of five years beginning with the date on which his resignation takes effect, be disqualified from being a member of the House of Representatives.

Citing the example of Datin Seri Wan Azizah Wan Ismail, who resigned her Permatang Pauh seat, Bon says, “One is disqualified for five years from seeking re-election. The only route for one to properly defect or cross-over has been demolished. How does one join another party as an elected MP pursuant to his/her freedom of association and disassociation?”

He believes that the law by way of Article 48(6) is unjust and immoral. If you were to read the Parliamentary debates on the amendment proposal in 1990, he says, it’s quite clear that Article 48(6) was introduced to deal with the situation of Datuk Shahrir Samad. Then, he resigned as an Umno MP and won the subsequent by-election as an independent candidate.

Syed Ibrahim opines that the loyalty of MPs should be to their voters first, so if they think that it is for the people’s good that they leave the party, then they are morally required to do that.

“However, if they are doing it for their personal gains, such as for the advancement of their political career, then it is absolutely immoral for them to cross over to another party,” he adds.

One way to end the uncertainty, he says, is for the Government to advise for the dissolution of the parliament and call for fresh elections when the Opposition calls for a vote of no confidence against it. “That is the gentleman’s way but it can backfire,” he says.

Former de facto Law Minister Senator Datuk Zaid Ibrahim says the issue of who has the support of the Dewan Rakyat has sapped the energy of the nation grappling with pressing economic issues.

“It’s time to put the issue to rest by having dialogues and consultation between the Prime Minister and the Opposition Leader.

“Why is such a meeting so offensive and fruitless when we have not even had one? The maturity of our political protagonists are being watched by the rakyat and the parliamentary system itself will be ridiculed when a meeting on a subject of importance to the rakyat is not possible.”

Zaid says the law and constitutional issues must be viewed in the context of upholding democratic principles and accepting the mandate of the rakyat.

A solution has to be found that will reflect this understanding, he adds.

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