Wednesday, November 4, 2015

Negotiating a vote of no confidence


Reflecting On The Law

Published: Thursday October 29, 2015 MYT 12:00:00 AM 

Shad Saleem Faruqi

Despite the Westminster systems’ role in enforcing responsibility, there is also uncertainty surrounding it.
THE nation is abuzz with news that the Opposition in Parliament is readying itself to introduce a motion of no confidence against the Prime Minister.
The principle that the Prime Minister must maintain the confidence of the lower House is a central feature of the British style of parliamentary democracy that we inherited in 1957.
Article 43(4): Our Constitution does not explicitly refer to a motion of no confidence. However, it embraces the principle of answerability and accountability of the political executive to the legislature through Article 43(4), which provides that, “If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.”
How “confidence” can be lost and what amounts to “majority” are nowhere explicated.
Loss of confidence: In the United Kingdom till 2011, there were four parliamentary techniques to express loss of confidence.
First, an explicit vote of no confidence in the Prime Minister.
Second, rejection of the motion of thanks after the Royal Address.
Third, defeat of a supply bill. This was what happened to Canadian PM Trudeau in 1974, Australian PM Alfred Deakin in 1904 and Arthur Fadden in 1941.
Fourth, defeat on any crucial piece of legislation or Policy Paper.
Presently, under Britain’s Fixed Term Parliament Act 2011, a motion explicitly resolving “that this House has no confidence in Her Majesty’s Government” is the only way to indicate loss of confidence.
Majority: This term can mean three things: a simple majority of those present and voting; an absolute majority of the total membership of the Dewan Rakyat i.e. 112 out of 222 MPs; special two-thirds of the total membership, that is 148 out of 222 MPs.
It is submitted that for the purpose of Article 43(4), the term “majority” means an absolute majority of the total membership of the lower House.
In case of a tie, the Speaker will have a casting vote but not if he is a non-elected member of the House: Article 57(1A).
Collective responsibility: A vote of no confidence operates not only against the Prime Minister but also the entire Cabinet.
All its members must resign from office. But there is no bar to their reappointment in the next government.
Instances: In the UK from 1782 till today, there have been 11 successful votes of no confidence against Prime Ministers: Lord North (1782), John Russell (1866), Benjamin Disraeli (1968), Gladstone (1885, 1886), Robert Gascoyne-Cecil (1886, 1892), Archibald Primrose (1895), Baldwin (1924), MacDonald (1924) and Callaghan (1979).
In India, three Prime Ministers have fallen due to such votes: Vishwanath Pratap (1991), Deve Gowda (1997) and Atal Bihari Vajpayee (1999).
In Malaysia, no federal Prime Minister has ever been forced out of office on such a motion but three such instances at the State level illustrate the vitality of the doctrine. These involved Stephen Kalong Ningkan (Sarawak, 1966); Datuk Harun Idris (Selangor, 1976); and Datuk Mohammad Nasir (Kelantan, 1977).
PM’s choices: A Prime Minister confronted by a vote of no confidence has a number of fighting chances. First, he may counter the Opposition motion by initiating his own motion of confidence to prove his support!
Second, he may advise the King to prorogue the House for the maximum period of six months allowed by Article 55(1). In the interim, he can use the carrot and the stick to bolster his support.
In 2008, Canadian PM Stephen Harper took this recourse to delay a vote of no confidence.
Third, the PM could threaten the MPs that if he loses the vote he will not resign but will advise dissolution. This may curb rebellion within the ranks as MPs do not wish their term to end prematurely.
Fourth, the PM may request the King to dissolve the Dewan Rakyat. If the Monarch agrees, then under a constitutional convention the PM will remain at the helm of a caretaker government till the new Cabinet is constituted after the election.
Role of the King: Under Article 40(20(b), the Monarch is not bound to accede to the advice of the PM to dissolve the lower House prematurely.
His Majesty may, instead, explore the possibility of appointing a new PM who can command the confidence of the House.
In such a situation, the PM must submit the resignation of his entire government.
Procedure: In most democracies, time limits exist for proposing motions of no confidence with a vote allowed only once every three, four or six months.
The introduction of the motion requires prescribed support. In India, it is 50 members; in Italy one-tenth of the members; in Australia 76.
In the UK, by convention a no-confidence vote takes precedence over normal parliamentary business. In Malaysia, however, Standing Order 15(1) of the Dewan Rakyat provides that government business shall have priority.
Despite the Constitution’s Article 43(4), the Dewan Rakyat has no specific procedure for a vote of no confidence. However, use could be made of Standing Orders 26-27 which permit Motions after a notice of 14 days.
Efficacy: Introducing a vote of no confidence has its limitations. In two-party states, such motions rarely succeed because party discipline is sufficient to allow a majority party or coalition to defeat the motion.
However, if the government consists of a coalition and a faction defects, that faction can break the government without having the means to make a new government. Such instability is written into Westminster systems.
A government defeated on an issue of confidence may not resign but may put the issue before the House a second time. In the 70s, British Prime Minister John Major lost the vote on the Maastricht Treaty but after a threat to dissolve the House, put the matter to vote again and won.
In 1986, Thatcher was defeated over the Shops Bill 1986. She accepted the vote and remained in power.
So despite its role in enforcing responsibility in government, there is much uncertainty that surrounds the Westminster technique of a vote of no confidence.
Shad Saleem Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.
~ The Star

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