No dissolution, no election, just vote of no confidence

No dissolution, no election, just vote of no confidence
16 June, 2008

Aziz said the power to dissolve the Dewan Rakyat or the House of Representatives is at the hands of the Yang di-Pertuan Agong, the King. The constitution stipulated that a Prime Minister must be appointed from among members of the lower house.

Harakah

The way to put a new government in place is through the existing parliament. A law professor argued that dissolving the house in order to allow for another election is against the provisions and spirit of the Constitution.

"The provisions of the Federal Constitution must first be explored before we go for another round of elections", said Professor Dr Abdul Aziz Bari to Harakah when asked to comment on the possibility of a snap election to solve the present political uncertainty. The constitutional law expert at the International Islamic University said the procedures laid down by the constitution must first be exhausted. And this is one of the reasons why election is not the best solution at present. Indeed election is not necessary.

Last Thursday KeADILan advisor Datuk Seri Anwar Ibrahim raised the possibility of a snap election called by Prime Minister Datuk Seri Abdullah Ahmad Badawi. Apparently this was said after the Election Commission deputy chairman Datuk Wan Omar told that a snap election could be called anytime. Early last week cabinet minister Datuk Shahrir Abdul Samad told Umno members to get ready for another election following the confusion created by the sudden exit of former premier Tun Dr Mahathir Mohamad from the party on May 19.

Aziz said the power to dissolve the Dewan Rakyat or the House of Representatives is at the hands of the Yang di-Pertuan Agong, the King. The constitution stipulated that a Prime Minister must be appointed from among members of the lower house. Aziz did not agree with Wan Omar for while the Prime Minister of the day has the liberty to request the dissolution, the final say is with the King. Similar position also prevails at the state level whereby the heads of state, namely the nine rulers and the four Yang di-Pertua Negeri hold the key. However Aziz did not see any good reason why state elections should be held. In any case, he added, the states are independent of what happens at the federal level.

Aziz contended that the EC official was wrong to create the impression that the government has the liberty to call a snap election. "Even the King is under some legal constraints. While the Constitution says it is his discretion as mentioned by article 40(2) the King is actually not at liberty to use it. For one thing the King can only dissolve the House when there is a request from the government of the day", Aziz explained.

The law professor continued that while the Constitution is silent as to the occasions whereby the request may be refused, the Reid Commission in its report said it was up to the King to evaluate the circumstances before him and act accordingly. The test is whether dissolving the house would be in "the best interests of the nation", Aziz said. The Reid Commission did not elaborate the situations but legal scholars throughout the Commonwealth put up the view that the head of state must make sure that the country would not go on "a dissolution diet"; namely to hold more than one election within a short space of time. "It is obvious that the reason why it is so is to avoid time and money from being wasted for elections while there is a cheaper and easier option to form a government".

According the professor the occasions which justify the refusal include the possibility of forming a government from the existing parliament. Another good ground to reject the request is when the sitting government is facing a vote of no confidence. "Granting dissolution in such a scenario effectively means helping the beleaguered government to escape and in so doing the King has acted politically to help the government in question; something which the constitution sought to prevent". Another justification for the King to refuse the request for dissolution is when a general election has just been held. Aziz added that under all the above-mentioned circumstances the King must play the role of an impartial referee: He must not allow himself to be put under any sort of pressure or leaning towards any party.

All those circumstances, Aziz argued, are present at the moment and thus the King is not in the position to grant dissolution should the Prime Minister ask for one. However the law professor cautioned that the King must act fast as he must have a government to advise him at all times. As a constitutional monarch, the King is under the duty to act on advice as stated under article 40 (1) of the Federal Constitution.

When asked to comment on the present political situation, Aziz thought that Anwar needs to show and convince the public that the loose coalition of parties under his leadership have enough MPs to form the government. Anwar had been claiming that the 82-member Opposition was a government-in-waiting as reports and speculations of crossovers keep popping up all the time. Under the present Dewan Rakyat the minimum number of MPs to form a government at the federal level stands at 112. Although the Abdullah government now has 140 MPs there have been talks of leaving and crossing over ever since the election results were announced on March 8.

On the question of morality of party hopping raised by some quarters, Aziz had this say: "Whatever the arguments, the people, namely the electorate, will have the opportunity to give their verdict come the next general elections and thus we should not waste our time on this argument. In any case crossing over and then voting the sitting government out of office is allowed by the constitution". He also dismissed the claim by a former secretary of the Dewan Rakyat last month that the Speaker had the power to prevent the motion of confidence. Aziz said it was ridiculous for this was tantamount to saying that the Speaker has the power to stop the constitutional process laid down in the provision; namely art.43(4).

On the possibility of the present government using the emergency provision, Aziz said it is quite unlikely. "But we have to rely on the King on this matter and I believe as the custodian of the Constitution he would say no to any attempt to undermine the prevalence of a constitutional government in this country. I think the country is stable and there is no need to suspend the constitution through emergency proclamation", he opined.