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(Daily Express) - Over the last few weeks, there has been talk that the opposition front may be in a position to form the next Federal Government given the not-so-robust majority of Barisan Nasional (BN) in Parliament after the 12th general election.
Debates and conversations on this probability or improbability have been taking centre stage of late among politicians, political analysts, business people and even people at the grassroots. The BN has 140 seats or 63.1 per cent of the total number of 222 seats. It garnered 4.082 million votes during the election or 50.6 per cent of the popular vote. If Parti Keadilan Rakyat (PKR) Adviser Datuk Seri Anwar Ibrahim is to be believed, then perhaps he may have made it sound rather relatively easy with his contention that all the opposition alliance needs is just 30 Members of Parliament from the BN to cross over. They could then form the next government based on a simple majority. At present, the opposition has 82 seats including one independent MP. Anwar has been reportedly saying that his party had managed to entice a number of MPs who would be willing to jump across. However, based on a document being distributed by some unknown quarters in Parliament Thursday, the matter is not as easy as it seems. The document, written by people who have a strong understanding of Constitutional Law, argues that the opposition front, in order to achieve what it aims to do, has to overcome various hurdles in the form of several laws in the Federal Constitution. According to the document, the number one obstacle is provided under Article 43(5), which states that the Yang di-Pertuan Agong has no power to dismiss the Prime Minister. But if the Prime Minister ceases to command the confidence of the Dewan Rakyat, then the Prime Minister must exercise one of several choices. One is to submit the resignation of his entire government as provided for in Article 43(4) or advise the Yang di-Pertuan Agong to dissolve the Dewan Rakyat and call a new election as per Article 43(4). But the Yang di-Pertuan Agong has the discretion to refuse the advice to dissolve the Dewan Rakyat as stated in Article 40(2)(b). In the event of this, the Yang di-Pertuan Agong has to appoint someone who, in His Majesty's judgement, is likely to command the confidence of the Lower House. The note also reveals that if the Prime Minister were to lose in a snap vote of confidence but is able to re-group his supporters and rebuild a majority, he is eligible to be re-appointed again as the Yang di-Pertuan Agong has some discretion on who is best able to command the confidence of the Lower House. Another obstacle for the opposition is that no extra-parliamentary dismissal is possible unless the Dewan Rakyat dismisses the Prime Minister as the Yang di-Pertuan Agong has no power to remove the Prime Minister (Article 43(5)). To reinforce its contention, the document cited the case of then Sarawak Chief Minister Stephen Kalong Ningkan versus the then Sarawak Yang Dipertua Negeri Tun Abang Haji Openg in Sarawak in 1966, which confirmed that unless there was a vote of no-confidence, a valid appointment cannot be revoked by the Yang Dipertua Negeri. The document also pointed out that if the Dewan Rakyat were to be dissolved, then the previous Prime Minister would remain in office in a caretaker government capacity. Although this was not laid down in the Constitution, it was a well established constitutional convention in the United Kingdom (UK), Malaysia and throughout the Commonwealth, it argued. In addition, the document also argued that the inability of a party to secure a two-third majority did not hamper law-making or the passing of the Federal Government's budget. "In the UK, governments come to power with less than 50 per cent of the popular vote and with a base majority in the elected House. This is not the first time that the Alliance-BN did not gain a two-third majority. In 1969, the Alliance failed to secure more than 50 per cent of the votes and failed to obtain a two-third majority. Tun Abdul Razak administered the country from Feb 20 1971 to the 1974 elections on a simple majority in the Dewan Rakyat," it stated. At the same time, the document also pointed out that in the case of Nordin Salleh (1994), the Supreme Court held that the Kelantan anti-hopping law was a breach of freedom guaranteed by Article 10(1)©. Nordin, then the PAS state assemblyman for Sungei Pinang, joined Umno in 1992. The Kelantan State Government then enacted an anti-hopping law for politicians but the Supreme Court later ruled that it was unconstitutional. The way to overcome this judicial decision is possible through a number of ways. One is to have a constitutional amendment to Article 10 (2)© to forbid party-hopping. But in the present political context, BN, without a two-third majority, may not be possible to secure this amendment. The other is to promulgate an Emergency Ordinance under Article 150(2B) to provide for anyone who has been expelled or who resigns from the party on whose ticket he or she was elected to the Dewan Rakyat to vacate his or her seat and return to the electorate in a by-election. Alternatively, a law can be promulgated to ensure that the "hopper" is disqualified to contest for five years and this will be similar to Article 48(6), which deals with MPs who resign from the Dewan Rakyat. The note further explains that an emergency ordinance is an executive piece of law-making outside of Parliament, which only requires the Yang di-Pertuan Agong's assent. It can be enacted if two requirements are met - that there is an emergency in the country and that the two Houses of Parliament are not sitting concurrently. This ordinance can be justified as a "collapse of civil government" is also a form of "emergency" as laid down by the Privy Council in the Stephen Kalong Ningkan versus the Government of Malaysia (1968) case. Meanwhile, when told of the document, Deputy Prime Minister Datuk Seri Najib Tun Razak said it was within the constitutional provision that the prime minister could not be dismissed. "Whatever happens has to be within the context of the constitution," he said at the Parliament lobby. Asked whether the Emergency Ordinance could be used against MPs who crossed over to another political party, Najib said: "We do not have the anti-hopping law now. I am not sure whether we can do it under the Emergency Ordinance."
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