On Saturday, deputy prime minister Ahmad Zahid Hamidi called for a law to be drawn up to prevent parliamentarians from moving to oust a sitting government.
This came after reports of opposition leaders and certain government representatives meeting in the United Arab Emirates to discuss unseating Prime Minister Anwar Ibrahim’s unity government, in what has become known as the “Dubai Move”.
FMT takes a look at the proposed FTPA, the arguments put forward so far, and insights from legal experts.
What is the FTPA?
So far, no details of the proposed FTPA have been made available. However, it is understood to entail fixing a specific date for a general election, which will in turn allow the sitting government to stay in office for a predetermined fixed period until the term’s expiry.
In the UK, the now repealed Fixed-term Parliaments Act 2011 stipulated that general elections were to be held at five-year intervals.
The UK law also provided that early elections may be held in only one of two instances: if Parliament passes a motion of no confidence in the prime minister, or if a two-thirds majority votes in favour of an election.
The law came under severe criticism and was eventually repealed in 2022.
Other countries with fixed-term elections include the US, Norway, Australia, New Zealand and Sweden.
What politicians are saying about FTPA
On Sunday, law and institutional reform minister Azalina Othman Said said the legislation reflects the government’s commitment to uphold the democratic process and honour the people’s electoral mandate.
Lawmakers supporting the FTPA, such as Pontian MP Ahmad Maslan, said it would prevent the mid-term ouster of an elected government, thereby ensuring the country’s political stability.
On the other hand, critics like Kota Bharu MP Takiyuddin Hassan have called the proposed law “undemocratic” and said it would allow a government to remain in power despite losing majority support in the Dewan Rakyat.
Sarawak premier Abang Johari Openg said that the proposed law violates MPs’ freedom of choice.
‘Constitutional amendment necessary, but may fail in court’
Constitutional lawyer Bastian Pius Vendargon said the government has not disclosed the model it intends to use to frame the law.
He also said there was a need to carefully consider the constitutionality of the proposed enactment, citing Article 4(1) of the Federal Constitution which declares any law inconsistent with its provisions void.
“If it means that whoever was appointed first by the Yang di-Pertuan Agong cannot be changed during the five-year period, they will have touched the Federal Constitution,” said Vendargon.
He was referring to the King’s discretionary powers set out in Articles 40 and 43 regarding the appointment and resignation of the prime minister and members of his Cabinet, and the dissolution of Parliament.
Vendargon said a constitutional amendment would be necessary to allow the passing of any law seeking to fix a period during which no change in government or prime minister is permitted.
Meanwhile, Philip Koh, an adjunct professor at Universiti Malaya, said the Federal Constitution “does not envisage that the executive cannot lose (its) authority before the passage of the five years (between general elections)”.
“The executive of the day enjoys authority to govern but if the prime minister loses the confidence of the majority in the Dewan Rakyat, Article 43(4) provides that ‘unless at his request the Yang di-Pertuan Agong dissolves Parliament, the prime minister shall tender the resignation of the Cabinet’,” he said.
Applying the principle laid down by the Federal Court in the case of Nizar Jamaluddin v Zambry Kadir (2010), Koh said the prime minister is duty-bound to resign if the King rejects his request to dissolve Parliament, failing which his office is deemed vacated.
He also said existing constitutional provisions had a “defensible” rationale, citing Article 43(4) of the Federal Constitution that addresses the loss of confidence in the executive.
That being the case, any attempt to amend its provisions may be held by the courts to violate the constitution’s basic structure, rendering the amendment liable to be struck down as unconstitutional, Koh added.
Is it even a good idea?
Vendargon said there was a lack of clarity in the ultimate objectives of the proposed FTPA, and whether it was to prevent the dissolution of Parliament or the removal of the prime minister.
He also asked whether it would be the right approach if the aim of the law is to prevent a change of prime minister.
“Is (keeping the prime minister in office) the right thing to do if the public is totally against what he is doing, (for instance if) his policies are all wrong?”
Meanwhile Koh said whether the FTPA flouts an MP’s freedom of choice can only be answered after a draft of the text of the proposed law becomes available.
In any event, there is a need to balance that freedom with the need for a stable government, he added.