Some opposition MPs open to essential spending-only bill
Editor's Note: This article earlier stated that Article 102 of the Federal Constitution had never been applied. This is erroneous and has been corrected.
Finance Minister Tengku Zafrul Abdul Aziz has issued dire warnings on the implications should Budget 2021 not be passed but several opposition MPs have pointed out that this outlook was disingenuous.
The MPs told Malaysiakini that in the event Budget 2021 was not passed, Article 102 of the Federal Constitution could be invoked to table a separate bill to authorise essential spending.
Essential spending could include civil servant emoluments and healthcare expenses needed to battle the Covid-19 pandemic.
Speaking to Malaysiakini, lawmakers from Amanah, PKR, and DAP indicated they would back such a bill if it omitted controversial Budget 2021 proposals such as the RM85.5 million budget for the resurrection of the Special Affairs Department (Jasa).
The Perikatan Nasional (PN) government's first budget could not have arrived at a more precarious time for politics, the economy, and public health.
The economic shocks caused by the Covid-19 pandemic have called for increased fiscal intervention but PN's razor-thin majority in the Dewan Rakyat means the passage of a supply bill is at risk for the first time in Malaysian history.
Zafrul recently voiced concern that civil servants and Covid-19 frontliners risked losing their salaries should Budget 2021 be defeated.
The country's Covid-19 response efforts would also be hamstrung, according to budget director Johan Mahmood Merican.
However, Pakatan Harapan MPs have rubbished such concerns given the existence of Article 102 in the Federal Constitution:
Power to authorise expenditure on account or for unspecified purposes
102. Parliament shall have the power in respect of any financial year -
a) Before the passing of the Supply Bill, to authorise by law expenditure for part of the year;
b) To authorise by law expenditure for the whole or part of the year otherwise than in accordance with Articles 99 to 101, if owing to the magnitude or indefinite character of any service or to circumstances of unusual urgency it appears to Parliament to be desirable to do so.
What Article 102 means
Article 102(a) was last used in December 1999 by then finance minister Daim Zainuddin to table a RM18.4 billion temporary budget for the first few months of 2000.
No situation in Malaysia's history has thus far warranted the use of section (b), but Bar Council Constitutional Law Committee co-chairperson Karen Cheah opined that it would be fair to regard the Covid-19 pandemic as a matter of unusual urgency.
"Due to the urgency of this issue, Parliament could utilise its special powers under Article 102 to authorise an extraordinary expenditure of such nature for our civil servants.
"Either at this sitting or at the next Parliamentary sitting in May 2021," she told Malaysiakini.
Cheah's reading of the section said it allows the government to table only federal expenditure under the Supply Bill for either the whole year or a part of it.
PN could alternatively table a supplementary budget as provided for in Article 101 of the Federal Constitution.
Either way, MPs will need to vote on it. "Parliament's authorisation is still needed at every step of the way," Cheah said.
Constitutional law expert Abdul Aziz Bari, meanwhile, held a different view.
Author of the book Malaysian Constitution: A Critical Introduction as well as the Perak opposition leader, Aziz he opined that Article 102 was meant for situations where the government ran out of funds mid-term after a budget had been passed.
"If we have an economic problem like Covid-19 or a flood, and suddenly we have a situation whereby the (earlier) estimate was basically wrong or inaccurate, then it is only fair to give leeway to the government to ask for additional provisions.
"But now it is time for the budget (not mid-term). This is different from what the constitution envisaged," he said.
Should Budget 2021 be defeated, the DAP Tebing Tinggi assemblyperson insisted that the only option was for Prime Minister Muhyiddin Yassin to resign, in accordance with Article 43(4) of the Federal Constitution.
"You have to look at the constitution as a whole, you can't just look at Article 102 in isolation.
"The government must have its support and majority to sustain its survival or else they have to go and make way for a new government to table a new budget," Aziz said.
Article 43(4) states that if a prime minister ceases to command the support of the majority of MPs, the prime minister can ask the Yang di-Pertuan Agong to consider dissolving Parliament. If the Agong refuses, the prime minister has to resign.
Harapan MPs onboard
As the Nov 26 budget voting date nears, most opposition and even some government MPs have indicated only conditional support for Budget 2021. Debates ended yesterday and the finance minister will have to start replying to them next week.
Should the government be forced to utilise Article 102, Amanah Sepang MP Hanipa Maidin foresees few reasons to oppose it.
"I don't see Amanah having any problem in supporting such a move. Being in Harapan, it goes without saying that any decision by Amanah will be subject to the Harapan consensus," he said when contacted.
The former deputy law minister chastised Zafrul for sowing "unfounded fear" about the perils of a failed Budget 2021.
"The threat by the finance minister, which was probably for the purpose of creating unnecessary fear among the rakyat especially the frontliners and the civil servants, is clearly unfounded and uncalled for.
"Just because the budget is rejected, there is still another constitutional way of disbursing the money via Article 102," he added.
PKR's Sivarasa Rasiah also criticised the finance minister and said Harapan was prepared to pass a "limited budget".
"Although Harapan may or may not reject Budget 2021 because of the controversial aspects, I'm sure Harapan will definitely support a limited budget together with the government to make sure that civil servants are paid and all the necessary operating expenditure, including Covid-19 expenditure, is covered," said the Sungai Buloh MP who is also a lawyer.
DAP Beruas MP and former Perak legislative assembly speaker Ngeh Koo Ham concurred.
"Opposition MPs have indicated that we will support payment of the salaries of civil servants," the lawyer told Malaysiakini.
'Fresh budget better'
While not against the use of Article 102, PKR's Willam Leong and Nik Nazmi Nik Ahmad shared Aziz's view that a failed budget meant the PN government must fall.
Setiawangsa MP Nik Nazmi opined that the right move in such a situation was to assess if another MP commanded a majority to be the next prime minister, form a new government, and table a fresh budget.
"It (using Article 102) is possible, but if someone else can command a majority then it is moot," he remarked.
Selayang lawmaker and lawyer Leong was also in favour of a fresh budget.
"I believe that for practical purposes, if there is a majority of MPs who vote against the budget, it will also mean that the same majority can vote in favour of a fresh budget," he said.
