Larger than the law

In a deadlocked assembly, the incumbent MB’s position is difficult but not helpless.

MANY engaging constitutional issues thrown up by the by-election in Kuala Besut will remain relevant for future federal and state elections long after the dust has settled on this contest. 

The riveting issue on many lips was, what consequences flow if there is a “hung Assembly” with an equally divided vote between two major factions? 

In such an unprecedented situation, what is the proper constitutional role of the State Sultan, the incumbent Mentri Besar, the State Speaker and the anxiously interested federal government? 

State Constitutions: Like the Federal Constitution, state constitutions are silent on what should happen if there is an evenly divided, deadlocked assembly. 
What is clear is that the Ruler would be put in a difficult position in relation to the appointment of the MB. Whatever decision he makes will be criticised as partisan. 

The budget would be difficult to pass. Ordinary laws would not get through. 
Constitutional amendments would be unthinkable. The executive-legislative cooperation on legislative matters that is the hallmark of parliamentary democracy would evaporate. An executive without a parliamentary majority would lose its legitimacy. 

Unethical incentives will be dangled before assemblymen to get them to cross the floor. On the Nordin Salleh decision, party hopping is part of our freedom of association! 

If a premature dissolution is ordered, that would cost millions of ringgit.

Significant though these problems are, a look at other countries indicates that the difficulties are not insurmountable. Politics is, after all, the art of the possible.

Role of Sultan: Appointment of the Mentri Besar is an undoubted royal discretion. However, being a constitutional monarch, the Ruler is required to observe constitutional and conventional limits. 

The MB must be from the Assembly. He must be a person who in the opinion of the Ruler is likely to command the confidence of the majority of the members of the Assembly. In the Malay States, the MB must be a Muslim and a Malay unless the Sultan allows an exception.

Despite his discretion, the Sultan must, in a hung Assembly, take note of the conventional “incumbency rule”. 

The incumbent MB should be given the first bite of the cherry and be allowed to continue to govern, to enact a budget and critical laws. 

He should be given some weeks or months to achieve these aims. However, if he fails, then the Sultan would have three choices.

First, to ask the incumbent to resign and if the MB refuses, then to dismiss him. 
The Whitlam precedent in Australia in 1975 and the Nizar precedent in Perak in 2009 are cases in point. The Sultan would then have the right to give the Opposition a chance to form the government.

Second, the Sultan could try to forge together a unity government headed by an MB of his choice from either faction and an equal number of Exco members from both sides. 

Third, if a unity government fails to materialise or fails to perform, then the Sultan would have no choice but to dissolve the Assembly and call for a new election which would have to be held within 60 days.

A contentious issue is whether the dissolution must be on advice of the MB or in the Sultan’s personal discretion? In normal circumstances, the initiative for a premature dissolution comes from the political executive though the Sultan has an undoubted discretion to refuse. It is not part of a Ruler’s constitutional function to act on his own to dissolve an Assembly. 

However, given the numerical deadlock and the incumbent government’s lack of majority, it is arguable that the Sultan has a reserve, inherent, prerogative power to act on his initiative in order to serve the best interest of the state.

Mentri Besar’s Role: In a deadlocked Assembly, the incumbent MB’s position is difficult but not helpless. An astute, politically savvy MB need not resign unless there is a vote of no-confidence or a royal order to resign. 

He could invite defections from opposition ranks, continue vigorously with executive functions, frame policies, execute programmes, exercise patronage, make appointments and all this while keep the Assembly in abeyance for a period up to six months. 

The passing of new laws through the Assembly will be difficult but one must remember that, except for the budget, there is no critical need to enact new legislation. 

Hundreds of laws are already in place. In addition, the executive has power to frame delegated legislation under the authority of existing state enactments. 

As to the budget, the gridlock could be broken by taking a leaf from the American system whereby the two major parties make compromises to draw up a mutually agreeable budget. If compromise is not possible, the MB could rely on the Speaker’s casting vote.

If all the above fail, he could advise premature dissolution and go into the election with the advantage of incumbency.

Speaker’s Role: Under the Constitution of Terengganu, the Speaker of the Assembly can be an outsider. He possesses a casting vote in case of a tie and, though he is supposed to be neutral, he could use his casting vote to support the Government’s budget and other critical programmes. 

In some countries, Speakers often abuse their powers to truncate the opposition’s strength in the Assembly. They use Standing Orders dealing with discipline to suspend assemblymen from the day’s sitting.

Federal Government: On the face of it, the federal government cannot do much to ensure the passage of the budget and of legislation in a divided state assembly. 

However, if the Government breaks down, an emergency in the state could be declared and the state administration federalised. This is what happened in Sarawak in 1966 and in Kelantan in 1977.

The lessons of history are always important. Life is always larger than the law and no statute can anticipate the permutations of political life. 

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM.