Abdul Aziz Bari | Feb 11, 08
The Federal Constitution clearly stipulates that under Article 40(2)(b), the King has the discretion to withhold consent to dissolve Parliament.
Similar provisions are also found in the state constitutions: the rulers and the Yang diPertua Negeri have similar power under Section 1(2)(b) of the Eighth Schedule of the Federal Constitution.
Legally speaking, these provisions operate independently of each other: what happens at the federal level has no bearing on the states although realpolitik may dictate otherwise.
It was clear that the provisions were conceived in the light of experience from the Commonwealth. According to the Reid Commission Report, it is unwise to allow the government of the day unrestricted right to dissolve the House.
Generally speaking the country should not go continue to go on the so-called ‘dissolution diet’. It goes without saying that dissolution would pave the way for the general election, which will use the country’s resources, time and money and thus is not always good for the nation.
Before we go further it should be made clear that:
* the term ‘to dissolve Parliament’ should be understood as dissolving the Dewan Rakyat;
* the King is only given the power to refuse assent to dissolve the House and does not have the power to dissolve the House at will;
* dissolution here refers to premature dissolution, namely before the House attains the five-year period at which it will dissolve automatically as stated by Article 55(3); and
* dissolution may have to be seen in conjunction with the formation of a government as the constitution prescribes that the King must have a government to advise him.
Although the constitution uses the term ‘discretion’ one ought not to understand this in administrative law way; namely that it is something that may allow personal choice.
The constitution, as elsewhere in the world, is a democratic document which expects the King to act as part of the checks and balances mechanism in the constitutional structure. As such he needs also to take into account whether the course of action he chooses would be in line with that democratic ideal.
As it stands, there has never been any occasion when the King has refused the request to dissolve the Dewan Rakyat since 1957. This is not surprising as most of the requests were made after the House has gone beyond four years and less than a year was left before automatic dissolution. At the state level, there have been several occasions when heads of state had rejected requests to dissolve the state assemblies made by the head of government.
In the Commonwealth, there have been several occasions when the head of state was justified in refusing requests to dissolve the House. Generally, however, these occasions underlined what was not in the best interest of the nation.
Included are situations when the government asks for a motion of confidence: it is not advisable for the head of state to grant a dissolution for it is essentially a strategy taken by a besieged government and the head of state should instead allow the motion to take place. The head of state is also justified is refusing the request when there is a possibility of forming a government without going for fresh elections.
A head of state in a Westminster system may also refuse the request when it is not good for the entire nation. One particular governor-general refused to grant dissolution early in the last century as at the time most of the fishermen were still out in the sea. The list of situations may also include the attempts by the sitting government to call a snap election when the opponents were not ready.
Apparently, as the constitution is silent, we could go back to the recommendation made by the Reid Commission which left the final decision to the King. But what has taken place from the Commonwealth is certainly a good guide.
On top of that the King, despite being a constitutional monarch, is also the guardian of the constitution. Like other state functionaries such as members of Parliament and the judges the King has the responsibility to uphold the constitution.
If one looks at occasions when our heads of state have refused such requests, these would resemble the Commonwealth experiences.
The first occasion took place in Terengganu in 1962, involving the possibility of forming a government without calling an election. What happened here was the culmination of manoeuvres engineered by Umno which, after losing the elections, went to woo PAS representatives to join its ranks. The PAS-led state government began to collapse. As Umno gained strength, the sultan refused the PAS request to dissolve the assembly.
The second refusal took place in Kelantan in 1977. As in Terengganu it was part of the Umno-PAS rivalry. Although PAS held the majority, it had to give way to an Umno-preferred man, as the party wanted to keep the newly-formed Barisan Nasional (BN) alive and well. But it became too much to bear and PAS elected representatives passed a vote of no confidence against the mentri besar. He refused to resign and instead asked the Regent – the sultan was in Kuala Lumpur serving as the Yang di Pertuan Agong – to dissolve the state assembly.
The request was turned down and the state was thrown into crisis. The federal government – led by Umno – declared an emergency in Kelantan. This later paved the way for state elections in early 1978. PAS cabinet members resigned en bloc in protest and subsequently the party was sacked from the BN coalition.
What took place in Sabah in 1994 was not too different from the Terengganu incident. Interestingly enough it happened after Umno entered Sabah and led the state BN. It appears that as the PBS-led government was collapsing due to floor-crossing, the Yang diPertua Negeri was in a position to refuse a dissolution of the state assembly. As in Terengganu there was a possibility to form a government without fresh elections.
Given the nature of politics and bargaining among coalition members, what has happened at the state level may be repeated at the federal level. However, whether or not the King is strong enough to do what has been done by the rulers is another matter.
This is raised as unlike the rulers who essentially reign for life and thus quite in a commanding position the King is only in office for five years: he may not be strong enough to reject the request submitted by the prime minister who may have been in office longer than him!
In any case the argument put forward by the electoral reform coalition Bersih was persuasive enough. Indeed it is very much within the constitutional scheme.
This coalition of NGOs and political parties argued last November that given the problems in the electoral rolls, the King ought to refuse a dissolution, using his constitutional power under Article 40(2)(b).
A clean and credible electoral roll is vital for free and fair elections. Furthermore the country can wait and is in no hurry to go to polls. In any case it is constitutionally correct just to allow the House to continue until it dissolves by itself in May next year.
Dr ABDUL AZIZ BARI is a professor of law at the International Islamic University Malaysia.
The King and the Dewan Rakyat