Constitutional Means to Change Government II

"A piece of paper with 112 names is not enough. Anyone can write their names. It has to be on the floor of the house.

And, under Article 43 of the Constitution, the PM has two options once Parliament approves a motion of no confidence against him. He can either step down or advise the Agong for a dissolution of the Dewan. He has got those choices.

However, the King can say no to the dissolution of Parliament under Article 40a (2) (b). Then, in this case, the PM will have to step down." - Prof. Shad Faruqi, The Sun, Oct 20th, 2008

He can go to the Istana and have a nice cup of tea but it's not that easy for Anwar, even is he has already 31 BN MPs crossovered.

This blogger realised this constitutional possibility and wrote as early as May 20th, yes it was two month after the GE12. In The Agong’s Constitutional Power to Remove PM, to counter a pamphlet trying to misinform the MPs to discourage any crossover to change the Government.

In Constitutional Means to Change Government yesterday, Prof Aziz Bari felt it could be done if not for Abdullah's unconstitutional refusal to call for an Emergency Session on Tuesday, September 23rd next week. He further questioned some constitutional inconsistencies.

Professor Shad Faruqi view differently. It cannot be done. His view tend to be similar with the stand by Government and those mysterious letters stuffed in the BN Parliamentarian letterboxes in May this year.

Read his interview with The Sun today reproduced below:

The Sun, Saturday 20th, 2008

Easier said than done

by Husna Yusop

OPPOSITION leader Datuk Seri Anwar Ibrahim told a news conference on Tuesday that more than 31 Barisan MPs have agreed to cross over to Pakatan Rakyat. However, he refused to reveal the names of the MPs. Anwar said he was committed to ensuring the takeover of government was constitutional.

Is taking over a government and forming a new government that easy? What is the process prescribed in the Federal Constitution? The Sun talked to constitutional law expert Prof Dr Shad Saleem Faruqi to seek the answers.

Once 30 or 31 MPs from BN cross over, PR forms the next government. Is it that simple?

Shad: It’s not that simple. Because, under the Constitution, the Agong cannot dismiss the prime minister, the Parliament must dismiss the PM. And at the moment, the Dewan is not in session. If there is a vote of no confidence on the PM, it must be in the Dewan.

A clear case is the Stephen Kalong Ningkan vs Tun Abang Haji Openg & Tawi Sli 1967. The court said once the chief minister is appointed, the governor cannot dismiss him unless the assembly passes a vote of no confidence. At that time, there was a stalemate between Sarawak CM (Stephen Kalong Ningkan) on the one side and the assembly and the governor (Abang) on the other.

So, Anwar cannot just march to the King and demand to be sworn in as the new PM as he has got the numbers? Is the King bound by the law to swear Anwar in as the PM?

Yes, Anwar said they are going to the Istana. They are most welcome to the Istana; they can have nice tea there, I’m sure, but nothing more than that.

A piece of paper with 112 names is not enough. Anyone can write their names. It has to be on the floor of the house.

And, under Article 43 of the Constitution, the PM has two options once Parliament approves a motion of no confidence against him. He can either step down or advise the Agong for a dissolution of the Dewan. He has got those choices.


However, the King can say no to the dissolution of Parliament under Article 40a (2) (b). Then, in this case, the PM will have to step down.


When PR said they will take over the government in the nearest possible time, how soon would that be?

The Dewan is in prorogation now. It will only resume in October after Hari Raya. But the PM can postpone the Dewan sitting. He is entitled to keep the suspension. Without giving any reason. That is his discretion.

Under Article 55 (1), the Agong on the advice of the PM can allow six months to elapse between one sitting and another. So he may just do that. It is untenable, democratically speaking, but PM Datuk Seri Abdullah Ahmad Badawi can rest for another six months.


If Abdullah decided to postpone the Parliament for six months, what is the implication?

It would create a lot of problems. It would be legal but not morally proper. If he knew there were doubts about his administration, his government, he must call the assembly.

If Abdullah does not extend the prorogation and by Oct 13, PR has got enough numbers, can they form the new government immediately?

They can call for a motion of no confidence against the PM but the standing order of the Dewan is silent about this. There is no mention of vote of no confidence in the standing order. But there is mention of other motions.

So, what needs to be done is for the MPs to introduce some other motions. An MP, any MP, can introduce a motion. But then, it will have to be decided by the Speaker and he would first need enough number of MPs to support it, and then debate it, then only he will accept it.

What are the options available to the government to thwart this?

Legally, they can’t do anything unless the Agong decides to do something. If the PM says he does not want the Parliament to resume in October, he can advise the Agong on this. But, the Agong may not listen. He can do that. If he does that, it means he disregards his duty to listen to the Constitution (because the Agong should act on the advice of the PM). But what can you do? You can’t take the Agong to court. For instance, like in the case of the appointment of Terengganu Mentri Besar whereby the King, or rather the Sultan, had defied the advice of the PM.

So, their (BN government’s) best recourse is to try to work with the Agong, with the hope that the Agong will follow the Constitution.

If the government is properly elected to power, we must follow the rules. If a government is formed according to the law, it must be dismissed according to the law. And the law says, there must be a vote of no confidence.

What do you say of PR’s intention to hold fresh elections within six months to a year of it gaining control of Parliament?

First of all, they are not in power. So, this is all speculative. The government in power is still holding majority of the seats in the Dewan.

So, I do not want to speculate about that. Sivarasa’s statement was just meant to create uncertainty. (On Friday, the PKR vice-president said PR plans to call for an early general election if it comes into power to dispel worries its targeted takeover of the government might be undemocratic or unethical.) They need to have enough members first. They should have the numbers by now.

All parties have plans once they come to power. All parties have their own manifesto. Everyone is allowed to dream. That’s the basic need. But, the reality on the ground is, there is no clear evidence that the current government is losing its support in the parliament.

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Anwar better work fast. Already he is a laughing stock and fast losing every bit of credibility left in him. He is beginning to sound desperate when denying he is not mad. He did not deny he lied, perhaps remaining hopeful that the prayers of synagogues and liberal muslims masjid are for his success.

What will he think off next?

Not only is the abandon ship call relevant to Abdullah's and Khairy's people. Another ship is running aground. Abandon ship for all those Anwar worshippers in PKR and the Erdogans in PAS.