Lawyers: Voters may feel betrayed if Pakatan sacks partners, but no law to stop this

(MMO) – Malaysians who voted for the four-member Pakatan Harapan (PH) in the 14th general election will have no recourse if components are removed as rumoured, according to legal experts.

Amid claims of a plot for a PH government without members DAP and Amanah, the lawyers said the informal nature of a coalition government meant there are no legal or constitutional safeguards preventing such an occurrence.

Constitutional lawyer Lim Wei Jiet agreed that the removal of partners from a ruling coalition mid-term may be seen possibly as a moral wrong but said it was not illegal.

“Voters no doubt have the expectation of their elected coalition to govern the whole term. And it will no doubt be seen as a betrayal of the peoples’ mandate from a political point of view.

“But there is ultimately no law which says that the coalition we elected on 9th May 2018 must govern until the 15th general election,” he told Malay Mail when contacted.

Lim pointed out that “there is no law to prohibit a ruling coalition to re-organise or remove coalition partners mid-term”.

“The only constitutional requirement is that the prime minister of the government of the day commands the confidence of the majority of the Dewan Rakyat. Of course, if any such re-alignment or removal happens, such confidence on the prime minister can be tested by a vote of no-confidence,” said Lim, who is also secretary-general of the National Human Rights Society (Hakam).

Lim said a no-confidence vote would also not be automatically triggered if a ruling coalition removes a component mid-term, explaining that a federal lawmaker must propose this in Parliament.

“And discretion is with Speaker on whether to put the same on order of motions to debate and vote on,” he said.

Lim said that the solution for coalition partners that have been removed would not be to file lawsuits in court to seek reinstatement or to prevent the removal, but would instead be to seek for a vote of no confidence against the prime minister in Parliament.

“Because the law doesn’t prohibit realignment of coalition parties, I don’t think there is a legal recourse. Unless, of course, the Speaker has not allowed a motion for no-confidence without any valid reason — one could try to file a judicial review (even so, it would be very hard to succeed because courts are hesitant to interfere with Parliamentary affairs),” he said.

If the political parties removed succeed in a vote of no confidence against the prime minister, Lim said the prime minister will no longer command the confidence of the Dewan Rakyat “and will arguably have to dissolve Parliament for fresh general election”.

With fresh elections not guaranteeing that ousted parties can be voted in as the ruling parties, Lim said they could instead pursue another method of forming a new coalition with at least half of the existing MPs in the Dewan Rakyat.

“They can alternatively try to form a majority with other parties and nominate a new prime minister and government. If the Agong is satisfied that such PM commands the majority, then he can invite to form a new government.”

Coalitions can remove parties since internal arrangement

Constitutional lawyer Surendra Ananth highlighted the nature of a “ruling coalition” as a practical label instead of a legal concept, noting that the important thing from a legal point of view for a government is to command majority support in Parliament.

“This concept of a ruling coalition is not a constitutional concept. It is a term of convenience. From a constitutional standpoint, it is all about the individual who holds the majority support in Parliament. Even an individual which does not belong to any coalition, but nevertheless holds majority support in Parliament, can become the Prime Minister. He then forms the Cabinet or federal government,” he said when contacted by Malay Mail.

“In short, a coalition can remove parties because it is ultimately an internal thing,” he said, adding that such a coalition might have to comply with some procedures when doing so, if it is a society registered with the Registrar of Societies (RoS).

Surendra said the easiest way to determine who commanded majority support in Parliament is by looking at who leads the coalition with most seats in Parliament, before outlining two scenarios involving the Yang di-Pertuan Agong (YDPA) that can happen when the ruling coalition’s composition is changed.

“When such a coalition breaks, Parliament will not be dissolved automatically. Two things can happen. First, the PM can make a request to the YDPA to dissolve Parliament. The YDPA has the discretion to refuse. He is not bound by the PM’s advice,” he said.

“Second, where no such request is made or if the YDPA refuses such a request, the question is whether the PM still holds the majority support in Parliament, or if some other individual now does,” he added.

Surendra said the best way to find out if the prime minister still enjoys the majority vote is to take such a vote in Parliament itself, as this would ensure transparency.

“If he does not, then he must resign along with his Cabinet of ministers. The YDPA has to then determine which MP holds the majority vote and appoint that MP as the new prime minister. In my view, all this should be done in an open and accountable manner in Parliament itself, so the voters are aware of the choices made by their representatives,” he said.

The Federal Constitution’s Article 43(4) states that a prime minister is to tender the Cabinet’s resignation if the prime minister ceases to command the confidence of the majority of the Dewan Rakyat MP, unless the Yang di-Pertuan Agong dissolves Parliament at the prime minister’s request.

“Regardless, the victims at the end of all this are the voters. They voted for a united coalition that will address certain issues and work together for that end. The breaking of that coalition ultimately is a betrayal of the voters’ trust,” Surendra concluded.

Constitutional lawyer Nizam Bashir noted that the Federal Constitution does not have provisions for or against coalitions, saying that this was more of a “political question” that would not be regulated constitutionally.

“The Constitution most certainly does not deal with issues of replacement of coalition parties and leaves it to the respective parties to deal with as they see fit,” he said, noting that the Constitution instead deals with the legal aspects of a government’s formation such as its executive and legislative branches.

He noted that the changing of a coalition’s composition would to some extent depend on the “coalition agreement between the political parties”.

“Parties can legally do as they like. But it’s a whole other question if they should be doing as they like,” he also said.

He said a ruling coalition or political parties being removed from a coalition can do as they see fit, unless there are legally valid “instruments” or written agreements that prevent them from doing so, with these documents also not subject “to being impugned/challenged in some legal way”.

When asked if a change in the ruling coalition’s composition would trigger a dissolution of Parliament, Nizam said it may depend on whether the prime minister views an early dissolution as necessary.

Citing the Federal Constitution’s Article 40(2)(b) which he said provides for the Agong’s discretion to withhold consent to a request for Parliament’s dissolution, Nizam said: “This is a clear safeguard against premature dissolutions of Parliament and the Yang di-Pertuan Agong has undoubted power in that regard.

“Either way, dissolution is not necessarily the only way forward as Article 43 merely requires that the Prime Minister be someone who the Yang di-Pertuan Agong in his judgment is likely to command the confidence of the majority of the members of the House of Representatives and this can be addressed without necessarily dissolving Parliament,” he said.

Regarding voters’ right to choose the government of the day, Nizam said this matter regarding coalitions could be considered for law reform with possibly further discussions and a paper to be drawn up in due course.

“However, we may not have to reinvent the wheel as the House of Lords, Select Committee on the Constitution via its 5th Report of Session 2013-14 has looked at this issue and came up with a report entitled ‘Constitutional implications of coalition government’,” he said, referring to the UK Parliament’s own study on this.

On October 15, PH’s secretariat chief Datuk Saifuddin Abdullah and the secretary-generals of the coalition’s four parties Parti Pribumi Bersatu Malaysia (PPBM), PKR, DAP and Amanah accused Umno’s former vice-president Datuk Seri Hishammuddin Hussein of campaigning for a government without DAP and Amanah’s participation.

Hishammuddin has however denied the claim by alleging that he was being made a scapegoat by PH to hide its internal squabbles, but PKR has insisted that it has circumstantial evidence of the alleged plot to remove DAP and Amanah.