Saturday, September 20, 2008

Navigating The Constitutional Impasse

It seems that we are well on the way to a constitutional crisis. A deadlock looms and, as some commentators including Professor Aziz Bahri of the International Islamic University have suggested, much will depend on how proactive the Yang di-Pertuan Agong can and will be in breaking it. In this, and more, it is becoming increasingly apparent that that the line between those who want change and those who do not will be the Federal Constitution.

Let us consider the objective elements.

Firstly, any Prime Minister of the nation must necessarily be the person who commands the confidence of the majority of the members of the Dewan Rakyat. As to who it is that commands the confidence, this is a decision for the YDPA “in his judgment”.

Until the events in Trengganu shortly after the last general and state elections, it was commonly thought that this was really a matter of having the numbers, that is the person with the most number of supporters in the chamber would become the leader of the government. The interventionist position of the Regency Council, for all purposes and intents the Sultan, earlier this year shed light on how things could justifiably be viewed differently. The appointment of Ahmad Said as the Mentri Besar possibly set a precedent and gave us foundation for the argument that it was ultimately the judgment of the monarch that mattered.

This is relevant as the material provisions in the Federal Constitution are virtually identical to those in the Trengganu state constitution. The YDPA could, as such, approach the issue in a similar way. This is not necessarily impossible; the YDPA is the Sultan of Trengganu.

Secondly, a Prime Minister who no longer commands the confidence of the majority has two options. He can ask the YDPA to dissolve parliament and use that to call for fresh elections. The YDPA however has an absolute discretion to withhold consent and as such, could legitimately refuse. This would leave the Prime Minister with no option other than to tender his resignation and that of his Cabinet and pave the way to the appointment of a new Prime Minister, one who in the judgment of the YDPA commands the confidence of the majority.

Thirdly, the Federal Constitution does not say how to establish that the Prime Minister has “ceased to command the confidence of the majority”. A vote of no confidence is an obvious method but not necessarily the only one. To read the constitutional provision otherwise would not only be unwarranted (an unnecessary implication of meaning) but would also allow for unconstitutional action, such as the use of the provision to impede the expression of the majority of the Dewan Rakyat. It is possible that circumstances could arise where an incumbent government seeks to prevent the meeting of members in Parliament to undermine any attempt by the majority to form a new government. To read provisions of the Constitution to lend to such an outcome would be wholly repugnant to the scheme the Constitution puts in place.

As such, it is open to the YDPA to form a view through other means, such as direct meetings with the majority of the Dewan Rakyat, so as to satisfy himself that the incumbent Prime Minister has in fact ceased to command its confidence. Events in Perlis and Trengganu earlier this year are illustrative of this course. That this approach is not necessarily ideal, for being amongst other things, fraught with practical difficulties, does not in itself militate against such an approach having been within the contemplation by the founders of the Federal Constitution.

Fourthly, assuming the YDPA nonetheless felt it necessary to have a vote of confidence put through the Dewan Rakyat, a question arises as to how this would be approached. If parliament were sitting, this could arguably be put through the Dewan. Such a motion would be extraordinary and exceptional. Going to the very foundations of the legitimacy of the incumbent government, it would have to be treated as a matter of priority. To allows such a motion to be encumbered by the procedural requirements of parliament would be wholly repugnant to the spirit, if not the letter, of the Federal Constitution. Even though the Speaker does have control of proceedings in the Dewan, he must allow for urgent debate and a vote on the motion if there is sufficient foundation for the motion. He has taken an oath to preserve, protect and defend the Federal Constitution and, therefore, the system of governance it puts in place. Such a motion and its outcome are self-evidently matters of grave constitutional significance and impact that cannot be ignored.

This would be more the case if the YDPA gave indication that it was His Highness’ wish for the motion to be dealt with as a matter of utmost priority. Under the Federal Constitution, Parliament is constituted of the YDPA and the two houses of parliament and an expression of His Highness’ intent cannot but be given great weight.

If parliament is however not sitting, a question arises as to whether the motion should be deferred to a time when parliament reconvenes. The question of the legitimacy of an incumbent government is not a matter that can be taken lightly assuming there is reasonable foundation for a belief that it no longer commands the confidence of the majority. The government does not adjourn as parliament does and it continues to act on the basis that it has the mandate to do so throughout its term. It would therefore be only logical for parliament to reconvene on an urgent basis to debate and vote on the motion. This however raises the question of how parliament is to be summoned.

The Constitution provides that the YDPA summons parliament. This is arguably done on the advice of the Prime Minister and it is for this reason that parliamentary procedure provides for reference to the Prime Minister. The Constitution is however silent on a situation where the motion in issue is one aimed at establishing that the incumbent Prime Minster no longer commands confidence. So are parliamentary rules. Though it could be said that there is as such no power with the YDPA to summon parliament, to read the Constitution as vesting a discretion in the incumbent Prime Minister to determine whether the Dewan will meet on whether he or she commands the confidence of the majority would lend to an obviously self-defeating outcome. It would after all be in the interests of the incumbent Prime Minister not to allow for the summoning of the Dewan. This cannot be right.

It is reasonable to read the Constitution as providing for this exceptional situation in the following way: the YDPA has the discretion to summon parliament for this purpose in view of it being an incident to the absolute discretion of the YDPA to appoint as Prime Minister a person who commands the confidence of the majority. Simply put, the YDPA must be given means to ensure that the Prime Minister is a person who commands confidence if His Highness is given reason to apprehend otherwise.

As such, His Highness could direct the Speaker to summon the Dewan Rakyat to debate the motion. The Speaker would be at risk of defying a legitimate direction of the YDPA and breaching his oath of office, with all the consequences of such an act, if he refuses. Alternatively, the YDPA could direct the incumbent Prime Minister to summon the Dewan. A refusal would similarly run the risk of being an unlawful defiance of a legitimate direction or a breaching of the oath of office.

Sixthly, in the event the YDPA forms the view that the incumbent Prime Minister has ceased to command the confidence of the majority, the YDPA could then appoint a new Prime Minister. A further question arises as to whether the incumbent Prime Minster must firstly tender his resignation and that of his Cabinet. Though this would be ideal, I have my doubts as to whether it is a necessary prerequisite, especially if the incumbent government intends to undermine the forming of a new government. Though the Federal Constitution does not provide for the dismissal of a Prime Minister, the appointment of a new Prime Minister would merely be giving effect to the wishes of the majority of the Dewan and system of governance put in place by the Constitution.

But then, what if the incumbent government refuses to vacate office? If the new Prime Minister is sworn in and given the necessary instruments of power, the incumbent government would in effect no longer be the government of the day and would no longer in law be lawfully possessed of power. Those individuals who lend themselves to this situation could be viewed as trespassing and, worse still, be seen as attempting to usurp the legitimate power of a lawful government. This has grave consequences.

The analysis set out above is based on my understanding of the Federal Constitution and it goes without saying that others may take a different view of the issues. However, it must be borne in mind that as the supreme law, the Constitution defines the way in which we are to organize ourselves and arrange our affairs. This extends to transitions of power, something which the founders could not but have contemplated as being possible. The Constitution was drafted in general terms so as to ensure that it was relevant and applicable to situations in an evolving nation and remain a vibrant and living law. The answers are there if we look for them fairly and objectively.

In the difficult times ahead, it is clear that the various factions will take positions on key constitutional provisions and interpret them in a way that favour their intended aims. In this, the YDPA plays a crucial role as does the Judiciary. It is therefore vital, and I say this respectfully, that both these institutions be seen as being detached and far removed from the politics of the unfolding events. How the approaching crisis is resolved, and the way in which this is done and seen to be done, are matters that go to our ability to meet the future with the stability and conviction that this nation requires to meet the challenges ahead.

MIS

11 comments:

DR.SARAVANAN R said...

MIS,
thanks for this comprehensive breakdown of the possible events that might be unfolding in the next few days.
cheers

Subashchandra Bose said...

Dear Sir,
At a time where our nation is at the crossroads your interpretation of the Constitution wisely dwells in the justified alternatives available.A scholarly wisdom that warrants immediate consideration by all patriots of our nation.
SUBASH CHANDRA BOSE

juslo said...

i think we should learn to get used to defections by MPs - it's what happens very commonly in other democracies, mature and developing alike.

the Agong and the military should facilitate the change (if there is indeed enough defections in favour of Anwar).

otherwise, we'll never mature as a democracy.

Defections - Get Used to It
http://juslo.blogspot.com/2008/09/defections-get-used-to-it.html

wishuponastar said...

The King -in -Parliament unlike the other three organs of the government such as The Legislative,Executive and the Judiciary seldom in the news.One reason is that YDPA as a constitutional monarch does not enjoy absolute powers.His powers are of two categories.
1.exercises powers on the advice of PM& Cabinet
2.the powers that he exercises at his discretion ( limited to appointment of PM and dissolution of parliament)

The YDPA could use his discretionary powers to disengage the locked horns of PM and DSAI.His Majesty is not answerable to any other authority in exercising his privileged powers.

Therefore the ball is in His Majesty's Royal Court.When he starts to kick one party is sure to get the boots.

kluangman said...

Dalam apa jua keadaan dan bidangkuasa yang ada pada YDPA adalah wajar ketentuan seseorang PM yang mahu diteruskan atau dilantik baru hendaklah 'diterima' oleh rakyat Malaysia secara total majoriti dan bukannya atas jumlah majoriti MP MP sahaja berdasarkan nama parti politik.

Landskaping politik di Malaysia berpeluang sampai ke saat terbaik untuk berada di landasan yang betul jika dapat dibetulkan sekarang.

cancan said...

Thank you for the comprehensive interpretation of the Federal Constitution.

I believe by now, our PM is thinking very hard how to strike a balance between resigning gracefully and resigning fighting.

Link: http://www.kingsmary.blogspot.com/

Anonymous said...

Great analysis on the constitution at best. But you fail to make non-constitutional matter clearer.

There is clearly a way for YDPA to be the decider in a constitutional crises. The question is would he? This same Sultan who thumb his nose at Badawi in Terengganu clearly does not mind being interventionist.

But its one thing to do it within UMNO, its another go against UMNO/BN.

What must motivate this YPDA is that the royal influence over the 50 years of UMNO/BN rule has been reduced over time. In the dynamics of the future, seeing the failures of UMNO to reform itself, he may deem that the only way and chance to bring reform into the country is to bring back the influence of the royalties.

In other way, it depends really on how much a reformist this YPDA really is. The YPDA concern will be about the need to reform Malay institutions and politics. Its not going to be about multi-raciality, its not going to be about ending the NEP.

If he think Malays need reform he will pull the trigger, if he think UMNO can still be reformed, he won't.

Guan Sin aka Pratamad said...

Under the current political stalemate, it is even more obvious that various key institutions of the nation are supposed to serve to uphold the Federal Constitution, rather than the interests of the incumbent government. The Speaker of the Dewan and the Supreme Court come to mind.

What is obvious now is that the government of the day is a minority government, and what are the constitutional ways to address this situation? Up to now, the momentum and actions by the Pakatan Rakyat leaders have been admirable and mature: systematic escalation of the measures as provided under the Constitution, with only one aim - to avoid outright confrontation.

However, if the Constitution is seen as not working, especially with the inaction or failure of those tasked with upholding the Constitution, rakyat's patience will be tested and situation on the ground may explode when bread and butter issues are suffocating them already.

Al Alim said...

I think we all need to pause a moment to reflect on the current situation and the failure of UMNO to address its problems. Every comment and blog makes the assumptions that the present Govt is a minority merely on the sayso of DSAI. The numbers i n Parliament state otherwise, as BN still has a comfortable 140 seats to the 82 that PR enjoys. How do you convince the YDPA that DSAI and the PR enjoy the confidence of the majority?

I applaud Maliks's incisive analysis. That would apply provided there is a real impasse! But that is yet ot be proven. If when Parliament is reconvened and the BN blocks attempts by PR to pass the vote of no confidence, then it will appear incumbent upon His Majesty YDPA to intervene to resolve the issue. But until then, all our arguments and discussions are purely intellectual.

Sharifah said...

You writing draws heavily on legalities. Could you also touch on the voters democratic right who had voted the MPs because of their allegiance to BN? How could you justify changing government via MPs' defection? Is this not plain disregard of the voters right, hence, a total disregard to the meaning of democracy?

One of the comments above even make claim that MP defections is a usual practice in develop countries, which I totally disagree.

gana naidu said...

sharifah,

you have failed to see that an MP, although voted ON a party ticket nonetheless in law is an independent person. it is for this reason that they have party whips.

in this capacity, he CAN choose to leave a party if he so desires. although it may not be morally correct, it is independence that is essential.

many have opted to become independent after they have disagreed with party lines. an MP is the holder of the people's trust. consequently, if he feels that his party is unable to command the support of the other MPs and the electorate, he would be MORALLY bound to uphold the trust of the people.

the days where MPs can be mavericks are long gone.