14 Sept, 2008
By Shannon Teoh, The Malaysian Insider
Before leaving to Taiwan to catch up with the Barisan Nasional backbenchers on Friday, Parti Keadilan Rakyat information chief Tian Chua replied directly to a question of defections.
"The issue of jumping parties does not exist. Barisan Nasional is collapsing. What we are talking about is opening a window of opportunity for MPs and parties to think outside the mode."
It was regarded as political spiel but a discussion with party strategist Saifuddin Nasution revealed that it contained hints of what PKR might have planned.
"We have never talked about defections, merely support," he claimed.
The veracity of his claims, amidst what must have been hundreds of mentions of Pakatan Rakyat's Sept 16 takeover plans by now, will be hard to prove, but it is an important hint nonetheless.
Saifuddin also let on that it was plausible that BN or Umno MPs need not leave their party and simply told us to "study the Constitution and think outside the box."
Very well then. In Article 43 (2) a of our Constitution, it is stated that "the Yang di-Pertuan Agong shall first appoint as perdana menteri (prime minister) to preside over the Cabinet a member of the House of Representative who in his judgment is likely to command the confidence of the majority of the members of that House."
The three key words here are judgment, confidence and majority. In other words, there is no mention here, or in fact, anywhere in the Constitution or Standing Orders of Dewan Rakyat that talks about party or coalition allegiances.
Numerous BN MPs have been rumoured to be crossing over but all of them have stated something to the effect that "no one is crossing over".
However, it need not be the case that someone is lying.
Everyone could be telling the truth, since going by certain definitions, no one need cross over for Datuk Seri Anwar Ibrahim to become prime minister in the near future.
They simply need to give him their "confidence" in forming a new administration. The key political issue that it would address are the questions of "morality" and "ethics" continuously posed by detractors of the opposition's aim to take over federal government outside of a general election.
Since no defections are actually taking place, PR could spin it into a matter of "conscience" rather than "power-grabbing."
Hypothetically, constitutional experts agree that if an MP can prove he has the backing of the majority, he can be appointed prime minister by the Agong.
"Majority here means the biggest single group. Most of the time it refers to the simple majority, but if there are more than two groups of MPs then the leader of the biggest one shall be appointed as PM," Prof Abdul Aziz Bari, a constitutional academician from the International Islamic University told The Malaysian Insider.
"Our Constitution does not discriminate against the so-called minority government and is at the discretion of the Agong and not subject to judicial review," he added.
Malik Imtiaz Sarwar, a practising constitutional lawyer said that strictly, however, believes that a minority government is not possible unless it can be shown that no other parties can work together.
For example, should both BN and PR disintegrate, an Umno leader could be said to have the largest backing as they have the largest bloc of MPs in Parliament.
"Practically though, the Agong would have to order fresh elections," he said.
But what are the mechanisms possible to achieve a zero-defection change in government?
Imtiaz said that any method that convinces the Agong that someone has the confidence of the majority. The most common would be a vote of confidence or no confidence.
"But say next week, 56 MPs from BN say they are with Anwar, or he produces statutory declarations to that effect, then arguably, Anwar has the confidence of his 81 PR MPs and also the 56. But it is blurred and unprecedented and I don't think it's viable."
He said this was due to the practical considerations on modern politics: "It is practically disavowing your party, and the party whip will begin the process of discipline. The Agong would say, 'This is ridiculous, why don't you just step away from your party?'
Abdul Aziz also agreed that while the Constitution makes no mention of political parties, "confidence refers to MPs' support. So it includes party or parties, i.e. a coalition. In other words, the provision is flexible enough to admit these interpretations."
"While it sounds logical I do not and in fact have never seen such a scenario," he said of MPs favouring a prime minister outside of their own coalition.
"I do not think politicians are the indecisive type. They would not want to waste the opportunity to form or to be in the government," Abdul Aziz concluded.
"It would be fictitious to say I will work with Anwar but still be an Umno MP. Most of all, it would not be a stable government and His Majesty would have to make sure MPs are working in the interest of the constituents," Imtiaz added, noting that in Malaysia, the issue of party allegiance was a major deciding factor among voters.
However, these dissenting MPs could declare themselves independent and simply align themselves with Anwar for the here and now, which will still be defined by some as a non-defection.
But should PR succeed in a no-confidence move, whether within the House or outside of it, via SDs or a letter to the Agong, what would be the most plausible outcome?
The prime minister could then call for a dissolution of Parliament but it would be under the Agong's discretion as per Article 40a (2). His Majesty is not obliged to take the prime minister's advice and could instead, still pick a chief executive other than, in this case, Datuk Seri Abdullah Ahmad Badawi.
"Up to March 8 it was purely a numbers game but the Raja of Perlis and the Sultan of Terengganu stepped in and interpreted "judgment" as being up to Their Majesties to inquire as to who in fact has the majority confidence," Imtiaz remarked.
Abdul Aziz noted that a no-confidence vote did not mean that Anwar had the majority. It would simply mean Abdullah did not have the backing of BN and he would have to resign or be removed by the Agong.
Ostensibly, Datuk Seri Najib Razak could usurp Abdullah as the new leader of BN. Only if it is found that no leader from BN could step up due to what some perceive as infighting in Umno between Abdullah, Najib or Tengku Razaleigh Hamzah, would there be an opening for Anwar.
According to Imtiaz, the Agong could then can give it to Anwar, as the holder of largest non-fractious bloc.
"It would be a minority government and would not be stable as there would be constitutional disputes. More importantly, what if BN solves its disputes? Then its leader would be back in command of 140 MPs and the government would then fall back to them," he said.
It would be most likely that Abdullah and the Agong would dissolve Parliament and allow parties to realign themselves or in fact, split into factions. Abdullah's Umno, Najib's Umno and Razaleigh's Umno could then jostle with Anwar's coalition for majority in a snap elections.
Whatever the case may be, it is clear that Anwar need only find a way to prove that he has the confidence of more MPs than anyone else. It may happen with or without the dissolution of Parliament.
What Saifuddin said on Friday echoed something Anwar himself has often repeated. "We have the numbers", without ever stating what the numbers would actually be doing.
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