The Star
REFLECTING ON THE LAW By SHAD SALEEM FARUQI
REFLECTING ON THE LAW By SHAD SALEEM FARUQI
Prime
Minister Datuk Seri Najib Tun Razak, when launching the Foreign
Correspondents Club on Monday night, said a hung Parliament would be the
worst possible result for the country. What does a hung Parliament
entail?
In
political science, the term hung Parliament refers to a fragmented
parliament in which no party or coalition secures an absolute majority.
In the context of Malaysia, an absolute majority would mean 112 out of
the 222 seats in the elected Dewan Rakyat.
Hung
parliaments are the norm in many democracies. In Britain, hung
parliaments occurred in January 1910, December 1910, 1929, 1974 and May
2010. Australia has a parliament with no clear-cut majority for any
party.
A
legislature with no overall control by any party can also arise when a
slim government majority is eroded by deaths, resignations, by-election
defeats or by defection of government MPs to opposition ranks. This
happened in Britain in mid-1978 and in 1996.
What happens if there is such a stalemate after the next general election in Malaysia?
The
Constitution provides very little guidance about the murky world of
government formation. A few tentative generalisations about Commonwealth
conventions can be made.
First,
the government that took the country into the election remains in the
saddle during the interim period, but only in a caretaker capacity and
with the implied understanding that its job is to hold the fort and not
to undertake any radical initiatives.
Second,
there is no strict rule that a defeated Prime Minister must resign
immediately. In 1974, Ted Heath, and in 2010 Gordon Brown, though not
victorious, stayed put in Downing Street while they attempted to forge
coalitions with the Liberals.
In
Australia last year, Prime Minister Julia Gillard hung on despite
failing to secure an electoral triumph. Ultimately, however, she was
able to strike a deal with independent MPs to keep her government
afloat.
The Commonwealth convention seems to be that in a stalemate, the government in office gets first choice to form the government.
Third,
if this effort to cobble together a new coalition fails, then the Yang
di-Pertuan Agong may install a “minority government” that, while lacking
a majority, will rely on ad hoc support from willing MPs to survive
no-confidence motions, pass budgets and secure essential legislation.
Minority governments are, understandably, weak governments and generally lead to early dissolutions and fresh polls.
Fourth,
if neither side succeeds in making an agreement with cross benches, the
Yang di-Pertuan Agong may allow the caretaker PM to continue until he
is defeated on the floor. In that case, a new election will be ordered.
Fifth,
an untested and untried possibility is that if no party can put
together a working majority, the King may exercise his influence to
bring together a unity government of all parties to run the show for an
interim period pending new elections.
In
such a case, the PM must be from the previous Dewan Rakyat and must
cease to hold office unless he is also an MP in the new Dewan Rakyat.
In a country with a hung parliament, can the King assume political control of the nation and rule by decree during such times?
Alluring
though this proposition is, one must be reminded that in our system of
constitutional monarchy, the King is not expected to rule in person.
He
must have an interim caretaker government to advise him on all matters
other than the limited areas of personal discretion permitted under
Article 40(2).
The
appointment of a prime minister is one such discretionary area. The
advice of the previous or caretaker PM is not binding on the King.
However,
the royal discretion is not absolute. Under Article 43(2)(a), the PM
must be a member of the Dewan Rakyat who in the judgment of the King is
likely to command the confidence of the majority of the members of that
House.
In
making his choice, the King must act impartially. He is not obliged to
choose the leader with the largest number of Dewan Rakyat seats if the
leader of any other party is able to forge a working majority.
In
selecting the PM, the King is not required to take the percentage of
electoral votes into consideration. It is the percentage of seats in the
elected House that matters.
Under
our winner-takes-all system, it is entirely possible that a party may
have more or a majority of the popular vote, yet a minority or a lesser
number of the seats in the House of Representatives.
Who decides when the new House sits? How and when is the new parliament convened?
The
Constitution in Article 55(4) requires that the newly-elected
parliament must be convened no later than 120 days from the date the
previous parliament was dissolved.
This
means that the defeated caretaker government is not obliged to throw in
the towel immediately after the results. It may wait for negotiations
to be completed before submitting its resignation.
New
elections: After an inconclusive election result, can an immediate new
election be called? Article 55(4) is explicit that after an election,
parliament must be convened.
Only
if the deadlocked parliament has met and the appointed PM has lost a
confidence vote must the new House be dissolved and fresh elections
ordered.
These
are some of the issues a hung parliament may throw up. Of course, life
is larger than the law and who knows what other interesting issues may
crop up to challenge our imagination?
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Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting
Professor at USM. He is the author of ‘Document of Destiny: The
Constitution of the Federation of Malaysia’.
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