Should Budget 2021 fail, is a govt shutdown inevitable? Not quite, say constitutional experts

19-Nov-2020 Intellasia | Malay Mail | 10:04 AM Print This Post

Following the tabling of Perikatan Nasional’s (PN) Budget 2021, the administration’s first major Bill, mixed reactions from both its allies and the Opposition have fuelled talks of a myriad of possible outcomes should the Budget fail to gain the approval of Parliament.

Among these whispers are strong claims of an inevitable government shutdown triggered by a failed Budget, with state news agency Bernama even comparing it to the 35-day shutdown imposed by Donald Trump’s United States government in December 2018.

A shutting down of the government would ostensibly stall funding to all civil operations and block desperately needed allocations and aid meant for those hard hit by the economic downturn, especially frontliners battling the Covid-19 pandemic.

With Finance Minister Datuk Seri Tengku Zafrul Abdul Aziz issuing a veiled warning to lawmakers that a failed Budget would lead to unpaid salaries for public servants, it is no surprise Malaysians believe such an outcome might actually come to pass.

So is a government shutdown inevitable if Budget 2021 fails in Parliament?

According to constitutional experts, the short answer is: yes, it’s a potential outcome, but, no, not a foregone conclusion.

Advance Tertiary College senior law lecturer and academic director Daniel Abishegam explained to Malay Mail that unlike in the US where Trump does not need to command the majority support of the Congress to administer or impose a shutdown, the situation here is very much different.

“This won’t happen in Malaysia because of our constitutional arrangements. Or at least it should not happen,” he said when contacted.

Abishegam then agreed that by convention, a sitting prime minister like Tan Sri Muhyiddin Yassin should resign if a Budget tabled by his administration fails to pass through Parliament; his other option is to advise the Yang di-Pertuan Agong to dissolve the Dewan Rakyat paving the way for general elections.

The senior lawyer cited Article 43(4) of the Federal Constitution as provisions that require the Agong’s intervention, which states how the prime minister shall tender his resignation and subsequently his Cabinet, effectively shelving the administration, if he ceases to command the majority support of MPs.

“If the Budget in Malaysia is not passed, [it would] be regarded as the prime minister no longer has the confidence of the majority in the house.

“So with an election, a new government with a clear majority will be elected and they will then pass the Budget,” he added.

Meanwhile, lawyer Fahri Azzat, who despite conceding that a shutdown is a potential outcome, felt that such drastic measures being imposed by the shaky government would not go unchallenged.

He said despite the absence of clear constitutional provisions to limit how long the shutdown can be imposed, an indefinite shutdown, if enforced by PN to press lawmakers into supporting their Budget, would essentially be against the law.

“It is a principle of law, not a constitutional provision. That’s where the courts will have to come in to resolve these differences of opinion.

“If they do it, I am pretty certain there will be a legal challenge against it,” he said, referring to the shutdown.

Constitutional lawyer Lim Wei Jiet who also felt a shutdown would be unlikely, then suggested the lack of clear constitutional provisions providing perimeters for a shutdown could see the government holding out for an extended period while it negotiates the support with others to hold on to power.

Lim, who is also one of the pioneer members of the Malaysian United Democratic Alliance (Muda) party, then simply answered ”no” when asked if there were any legal provisions that spell out conditions of how a shutdown can and should be imposed.

“It’s up to the government on when they want to call for a vote on the Budget,” he said.

All three lawyers agreed that by practice if Budget 2021 fails, besides Muhyiddin resigning or advising the Agong for the dissolution of the Lower House to trigger elections, he could also decide to stall and negotiate terms with fellow lawmakers to gain their support before tabling a new Budget.

“Prime minister stays on to power, tables the new Budget. It’s a constitutional convention to resign if [they] lose the Budget vote, but no legal obligation,” said Lim.

The final option would see the Agong’s intervention, as the constitutional monarch, to decide who best can command the majority support of the Parliament to then form a new government and table their own Budget.

This option does not require a general election to be called and instead depends on the King’s prerogative and opinion.

For Fahri, going by past events, he believed the government would most likely consider declaring a state of emergency as it has done before if it opts against imposing a shutdown.

“Well, shutting down indefinitely is illegal. That’s why they keep going by way of declaring an emergency.

“It is the ‘legal’ course of action,” he responded when questioned on the probable reasons behind Perikatan’s eagerness to call for an emergency.

Failed Budget 2021 = no salaries for civil servants?

As for the question if civil servants, and more importantly, frontliners, would lose their wages if the Budget is not passed, again the legal experts expressed how such scenarios are possible but again, remained unlikely.

Abishegam and Fahri both agreed that by default, it is true that a government would not be able to honour the wages of civil servants if its Budget is not passed.

However, Abishegam pointed out how a special motion, allowed for under Article 102 of the Federal Constitution, can be tabled in Parliament to approve funding for the wages of the public sector.

“Kind of like a partial budget in a situation of unusual urgency,” he explained.

Lim also cited the same Article 102, saying it allows for expenditure for 2021 to be approved by Parliament, while the sitting government negotiates terms of its Budget with other MPs.

“This means, while Parliament irons out disagreements on Budget, they can agree to say, ‘hey, salaries of civil servants are non-negotiable. Let’s approve that first, while we fight out on the Budget’.

“So, [it’s] not a given that there is a ‘government shutdown’ if Budget 2021 is not passed,” Lim said.

PN’s Budget 2021 that was tabled on November 6 has received criticism from both sides of the political divide, who alluded that next year’s allocation plan was not inclusive as claimed by the government.

Among the demands that have surfaced are those from PN’s allies Umno, who have demanded an RM10,000 one-off withdrawal be allowed for EPF contributors, as opposed to the 12 withdrawals of RM500 each mentioned under Budget 2021.

The Opposition, on the other hand, has consistently called for a blanket bank loan moratorium that was imposed from March to September to be enforced for yet another six months, citing the sluggish recovery rate of the economy as a reason for the aid.

One allocation from the Budget that received criticism from both sides is the RM85.5 million that was allocated to the Department of Special Affairs (Jasa), which has long been earmarked as a government propaganda unit from when it was formed under the Barisan Nasional regime.

Budget 2021 tabled by Tengku Zafrul is said to be worth RM322.5 billion, the largest ever tabled in Parliament, and will be put to the vote of Parliamentarians on Nov 26.

https://www.malaymail.com/news/malaysia/2020/11/19/should-budget-2021-fail-is-a-govt-shutdown-inevitable-not-quite-say-constit/1923995

 

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