“No need for two thirds to govern”

As at 3.25am, it has been declared that Barisan Nasional had won 133 out of 222 seats parliamentary seats contested in this 13th General Election.

Congratulations to all winners and congratulations indeed to Barisan Nasional and Dato’ Sri Najib Tun Razak for leading the victory.

I was alerted by SatD’s update in Facebook about this really good article regarding  our constitution and the effects of election results and the various subsequent scenarios that may happen. It is a Q & A session by a renown constitutional expert, Prof. Dr Shad Saleem Faruqi; the real deal. Unlike several other newbie lawyers in the Bar Council. They may be strong in twitter, but really need to learn more on what they claim to be good at.

I have posted the article in full for your reading benefit. Thank you.

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Constitutional law expert Prof Dr Shad Saleem Faruqi thinks a two-thirds majority in parliament is a thing of the past and that it is fine to win with a simple majority. He shares his view on what happens if the tightly-fought contest ends in a hung parliament.

Q: Some say this election is too close to call, so what happens if it’s a simple majority of, say, only five seats? How stable would such a government be?

A: In democracies, majorities are small. The idea of having 80%, 90%, 70% majority is most unusual and abnormal.

The bigger the majority, the less likely there was integrity in the electoral process. It is abnormal in politics if 90% of the people agree with one side. This is impossible even in your own home with your wife and children.

You are always divided on simple issues like where you want to go for dinner or what colour your carpet should be. If two people agree on everything, that means only one is doing the thinking.

If 90% or 94% of the people vote a leader in, you can be assured there was no free thought permitted. I would be embarrassed not worried if a particular party or coalition wins a massive, unnatural support because that is not normal at all. Normal in politics is you are split down the line. If it’s a vibrant democracy and there is a high level of political awareness and legal literacy, differences are to be expected. It is a sign of a feudal society if there is too high a level of conformity.

The issue you are raising is something other countries are not so worried about. Their political morality is a bit better so they don’t worry about party hoppers so much.

Look at Australia no one got a majority but Australian Prime Minister Julia Gillard managed to negotiate with independents and formed a government with a majority of two to three seats. And she’s surviving.

And in the UK, the Conservative and Liberal Democrats coalition (of David Cameron and Nick Clegg) is surviving.

There was no massive sale and purchase of MPs. You put your finger on how depraved our morality has become in the area of political ethics that we are worried some people will bolt. Ultimately, it is the issue of political ethics, of people’s commitment to a party or to principles rather than to “make hay while the sun shines”. Besides political ethics, there’s also the issue of leadership. Leaders can work with a small majority and are able to survive, as is the case in other countries.

> Malaysia has always had a two-thirds majority in parliament up until the 2008 general election and Malaysians have been very comfortable with this. Doesn’t a two-thirds majority make the running of the government smoother because everything will get through easier?

Democracy is a good form of government but it is not the most efficient because it requires discussion before a decision and allows competition of ideas in the market place. The more evenly balanced the two parties are, the more of a gridlock and deadlock there will be.

A two-thirds majority facilitates quick decisions, the quick passing of laws, the pushing aside of differences in views, but as our democratic culture grows, we have to learn to accommodate these things. Democracy is not an easy form of government. If we want democracy, we have to learn to accommodate delays in the passing of legislation, delays in the passing of the budget, and I think we will still survive without a two-thirds.

(Former Prime Minister Tun) Abdullah (Ahmad) Badawi’s and (Datuk Seri) Najib (Tun Razak’s) governments survived without a two-thirds majority.

And Najib repealed the ISA, repealed section 27 of the Police Act, repealed the Restricted Residence Act, lifted the Emergency, amended AUKU (the Universities and University Colleges Act) without a two-thirds majority. So what’s the problem?

Actually, even without a two-thirds majority you can indirectly amend the constitution by passing a law as an ordinary law. Abdullah passed the Judicial Appointments Commissions Act as an ordinary law when he didn’t have a two-thirds majority. That was actually a constitutional amendment but any law is valid until it is challenged and declared invalid by the court.

So I don’t see a problem without the two-thirds majority. Most laws and the budget require only a simple majority to pass in parliament. As for constitutional amendments, some resolutions involving Malay reserve land and re-delineations of constituencies, you would need two-thirds.

> Are Malaysians mature enough to handle a simple majority government from now on? People are saying that if Najib wins, say, 126 seats, he shouldn’t be Prime Minister because that would be worse than the 2008 general election led by Pak Lah.

That’s ridiculous! It is very unfair indeed in a democracy that a person who leads his party to power with a clear cut absolute majority must resign just because he doesn’t have two-thirds.

As to whether Malaysians are mature enough, I am not worried about whether the guy who sells nasi lemak or makes roti canai has a sophisticated understanding of issues. The point is this: within our society, there is a sufficient number of mature people who know what’s going on, understand laws and what the nation needs. We must always aspire for a standard higher than the market place. We can’t peg our ideals or practices to the mean average. It has always to be pegged above the timberline of the ordinary. We have enough mature people.

For example, we have always been told you can’t amend the Police Act and allow freedom of assembly because there will be chaos. But we have proven to the world and ourselves in Bersih 1, 2 and 3 except for one where there was some disorder primarily due to police action that we can have massive rallies without any untoward incident. Every Friday for prayers, we double and triple park our cars and don’t get into fights. There is enough maturity to wait for the guy to come out.

On Sunday mornings (because of church), the four-lane Jalan Gasing becomes a one-lane road but we tolerate all this chaos and give and take for each other. During Chinese New Year, there are firecrackers at midnight and early morning and we tolerate all this but we are not given the credit that is due. Malaysian society is far ahead in terms of inter-communal living than many other societies that are more economically and educational developed than us.

Somehow, the culture of sharing power, of permitting massive diversity, comes easily to the Malays. We have the largest pig farms in this country, which is a Muslim country, despite the fact that all Muslims have a sense of revulsion towards the pig. We allow gambling. We close an eye over very liberal forms of dressing which you find everywhere here even though it’s a Muslim majority country.

I think there is a great deal of tolerance here.

Look at the communal riots in India, Pakistan, Sri Lanka, southern Philippines, Lebanon, and Turkish and Greek Cyprus where they can’t live with each other.

Here in Malaysia, there are not many people who are prepared to go beyond the point where a conflagration is inevitable.

Look at the cow-head protest in Shah Alam or the firebomb (Molotov cocktail) thrown into a church. It didn’t lead to a racial riot. In India, that would have led to a communal riot right away.

What else do we have to prove? We have had 57 years of peace 55 after independence, two years before that.

> But some would argue that as a country, Malaysia has not really been pushed or tested. We have not had a change in government so people would argue that if it comes to that, people would not be able to take it.

Maybe so. But we had 57 years of political co-operation. We have the world’s longest surviving coalition (Barisan Nasional). Some credit must be given for that widely disparate groups coming together and acknowledging that there is a lot that they don’t agree on but they are prepared to be friends in sports and agree on some fundamental issues.

The Malays conceded a great deal. They conceded citizenship to the non-Malays. That is very generous. I went to the Maldives to draft their constitution. There, unless you are a Muslim you can’t get citizenship.

Malays also conceded cultural and linguistic diversity. We allow people to have their own names according to their culture. In Indonesia you can’t. In Thailand, Japan, and South Korea, there’s a great deal of emphasis on monoculture.

The fact that you have in this country Chinese and Tamil schools too is remarkable. The Chinese and Tamil schools are actually not protected under the constitution. The constitution only permits the right to learn the language but doesn’t give you the right to learn in the language. There’s a difference. Non-Malays conceded an electoral system with the rural weightage, they conceded the fact that there would be Islam, Malay language, Malay special position and that the royalty is all Malay.

There is a great deal of give and take. In Malaysia, we have proven that even if we don’t learn together, we can live together.

The thing is to find our commonality. We do that with our children. We find common grounds. Because of love, we ignore the rest. We have done that at a national level now. The most important that the Malays conceded is economic power sharing. There was no compulsory expropriation of property as in Kenya or in Uganda where Jomo Kenyatta and Idi Amin (respectively) seized the property of Asians, or in Zimbabwe where the property of the whites are being seized. Instead, Article 153 (Federal Constitution) was used for social engineering. It was an evolutionary rather than a revolutionary process which combats identification of race with function.

In many areas, it didn’t work and in many areas it didn’t produce the result it intended. But the point is this: nobody’s home or business was seized.

Social engineering was resorted to, to try and bring about the change. That’s why I think the economy is so vibrant. Malaysia used the economy to tell the people that riots, killing and hatred will not produce good results.

An American once asked me how come people here don’t kill each other. The reason for that is everyone has some stake in the country. Indians don’t want to go back to India, the Chinese don’t want to go to China, the Malays from Indonesian islands don’t want to go back to Indonesia. I think all have a place under the Malaysian sun. God has been so kind to arrange sunshine, fertile soil; we have minerals, we have rubber, palm oil, we have gas and there are no serious earthquakes or tsunamis or cyclone. It’s a very lovely country.

> Do you have confidence in the legislation for the police to keep the country together if there is a change of government?

The legislation arms the police with sufficient power, there’s no doubt about that. I don’t share the view that the repeal of the ISA, the amendment of the Police Act, or the repeal of the Emergency Law has crippled the police.

The police have plenty of preventive powers in the sense that they don’t need proof. They can arrest someone based on suspicion. And after arresting, they have to follow some post-arrest procedures such as producing him in front of a magistrate, allowing him a lawyer or under the Securities Offences (Special Measures) Act, 28 days of preventive detention is allowed. There are many laws.

The Penal Code is a fantastic law; it has almost everything under the sun. Besides that, there is the Criminal Procedure Code, laws on gun control and laws against drugs.

Don’t forget too that the constitution has a provision for more laws. Article 149 of the Federal Constitution gives the power to pass laws to combat subversion, and to pass these laws you don’t need a declaration of emergency.

Today there is no emergency but a parliament sitting could pass a subversion law.

> What constitutes a hung parliament?

In simple terms, it means a parliament that no party or grouping has an absolute majority. We have 222 seats in the Dewan Rakyat so the absolute majority is 112 seats. If no grouping gets 112 seats, that’s a hung parliament.

Theoretically, it’s possible for both sides (Barisan and Pakatan Rakyat) to have 111 seats each but it will never be like that. Normally, it’s, say, one side has 100 seats, the other side has 95 seats and the rest of the seats are won by Independents or other smaller parties (which are not aligned to either coalition). So no one can form the government because none has 112 seats. That’s a hung parliament.

> What happens if the election ends in a hung parliament and no one is in charge?

Someone must be in charge. If there is a hung parliament, there are four or five possibilities.

1. Under the British convention, the caretaker prime minister continues and gets the first bite of the cherry to try and form the government. In the United Kingdom, there was a hung parliament after the 2010 general election. The incumbent Prime Minister Gordon Brown was the losing prime minister but he remained in the saddle for a few days trying to form a government. When he failed, he stepped down, allowing the opposition leader (David Cameron) to take over to form the coalition government (between the Conservatives and the Liberal Democrats).

Look at what happened in Australia when the lady Prime Minister Julia Gillard did not win and there was a hung parliament. She negotiated and worked out a deal with independents and remained in the saddle.

2. The second possibility is the Nepal rule. In Nepal, the law says when no one wins a clear majority, then the party of the coalition with the largest number must get the first bite of the cherry. So if no one wins a clear majority, it won’t be with the incumbent but whichever group that has the largest number of supporters in the elected house that gets the chance to try to form the government.

Let’s say one side gets 100, the other 90, and 32 are independents or from some mosquito party. That is a hung parliament. So the side with the 100 seats will try to bring some MPs from here and some from there to get that magic 112 number. The MPs don’t have to hop or change parties or coalitions. They just have to say I will support you on a day- to-day basis. I will support your budget, your essential legislation.’

3. A coalition government with the help of the head of the state. Parliament must meet within 120 days from the date of the dissolution of parliament so you have to find a workable arrangement within 120 days.

Let’s say the incumbent can’t do anything to form the government and fails despite being given the time, and the leader of the largest faction doesn’t succeed either. The King can’t rule the country so he can play a statesman’s role to bring people together to get them to forge a coalition or unity government. That is unusual and is not contemplated by our constitution but he would have to play the role because of the incidental situation.

And in this case, the Prime Minister of a coalition government doesn’t necessarily have to come from the party with the biggest number of elected representatives. Look at what happened to Perak in 2008. DAP won 18 seats, PKR seven seats, PAS won six seats and Datuk Nizar Jamaluddin from PAS became the Mentri Besar because he was the compromise candidate (until the Pakatan state government fell due to a series of defections). So the King can appoint a member of the Dewan Rakyat who, in his opinion, commands the confidence. It doesn’t say he must come from a party with the most number. Confidence just means that he has the support to pass laws. So a leader of a small faction may well become PM on an ad hoc basis for a short term because he is the compromise candidate, as in “I don’t want you, you don’t want me so we pick him”.

4. A minority Government. A coalition could not be worked out and the person does not have the confidence of the Dewan Rakyat. But maybe through the striking of deals, he can get some important legislation like the budget passed or some critical appointments, for example, if the position of the Chief Justice or Suhakam commissioners are vacant, he can try to get these pushed through compromises and he can advise the King to dissolve the house and call for a fresh election.

The King can’t dissolve parliament and call for elections on his own. Somebody must advise him to, so the King appoints a minority leader to advise him. He will be a stop-gap caretaker minority Prime Minister whose job would be to do the critical things including advising for a new election. Within 120 days after parliament is dissolved, a new parliament must sit, even if it’s for one day only. Then it can be dissolved.

5) If none of this works and the nation is in turmoil and drifting, an emergency can be declared under Article 150.

Then there will be an executive government running the country. The King will acquire a significant role and not be strictly bound by the advice of a caretaker Prime Minister but, hopefully, he will be bound by convention to listen to advice. This gives the King a lot of discretion and this has never been exercised in this country. In this scenario, you are moving towards more instability, uncertainty and a crisis zone. I hope and pray that won’t happen.

> Is it healthy for democracy if all states are controlled by one party and the federal government is controlled by another?

It would make governing more difficult and challenging. But join the rest of the world. Governing was never meant to be a 100m race from day one you start and that’s it. Governing is not a motorway, it is a maze. In other countries, federal-state disputes are common. We have to learn to live with that. So in that respect, the mindset must change. We are so used to federal hegemony. We have to change our thinking.

> You sound optimistic about the country. Are you?

I think this country has in some respects been exceptional. In many areas in ethnic relations, we have regressed. Still, all in all, if we compare Malaysia to India, to Pakistan or Sri Lanka, we have a remarkable level of peace. The first human right is to live in peace.

In India, the Hindu population is 80%, the Muslim population is 10%, and Christians 6%.

But in Malaysia, the Malay population is 55% and the non-Malays are 45% and for that 45% and 55% to live together in a political coalition is not easy. If it was 90%-10%, one can understand where one side totally dominates the other.

Tunku Abdul Rahman, Tun Abdul Razak, Tun Tan Cheng Lock and Tun Sambanthan should have been nominated for a Nobel Peace Prize, not because they ended a war but because they created conditions of peace.

I am sure they quarrelled. I am sure they had frayed tempers and cursed each other, but in the end they came up with a blueprint on a basis of give-and-take.

Some of what we have today is from the incredible compromises that have been forged.

You and I can study abroad. In some countries you can’t do that and you can’t transfer funds. Here, you can fill up a form and transfer funds. Malaysia was a globalised economy long before globalisation. That actually allowed the non-Malay communities to fly to the heights of their competence. No one can deny that the Indians and Chinese generated a lot of wealth and their wealth has contributed to the nation partly because of the liberal economy.

It was a liberal economy with importing, exporting, free travel, and foreign business. In 1957, incredibly an Asian society had a global outlook. That was remarkable, and that’s why I say the leaders of the alliance from all three races deserved a Nobel Prize.

The way the Malays handled the colonial people too was remarkable. Instead of fighting and killing them, they put them on a high pedestal and then asked them to go home. It helped the global economy that we didn’t chase the foreigners out. The overall spirit of the 1957 constitution was one of moderation, and of give and take. They told each other very frankly that these are areas that I can’t give in and the others saying that area is non-negotiable and both agreeing to a number of things.

I’ve heard Chinese say that Chinese education is non-negotiable. I am fascinated by that. It’s not in the constitution. It is an ethnic compromise. It’s normal for people to take blessings for granted. So here, although people are dissatisfied with some of the internal policies, they had alternatives. Nobody was put with his back against the wall. That was important.

People had something to live for and something to plan for. I think that’s the secret of this country and we can recapture that. All that is needed is bold leadership. Leaders of substance do not follow opinion polls. In the last two years we saw the birth of leadership. We saw the repeal of the Emergency Ordinance, the repeal of section 27 of the Police Act, the repeal of the ISA, of the Police Act, and the amendment of AUKU. This was leadership. It took courage.

Najib understood that times and people have changed. The Malays want change and he wants to be (the) agent of transformation. The term “status quo” to many has become one that gives them security, but to many others it is a dirty word and Najib understood that.