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THE anonymous pamphlet distributed mysteriously in Parliament at the end of last week's Dewan Rakyat sitting was certainly more than just an unsolicited lesson in constitutional law.

Given the timing, its message could be simply paraphrased in casual language thus: "Hey, it's not that easy and straightforward to change the government just by having some members of parliament switch sides."

Darn right. Whoever came up with the single-page circular, covertly shoved into pigeonholes and left in stacks in quiet corners, must have been thinking that it was the perfect moment to issue the reminder in the wake of wild anticipation that a seismic shift was to occur last Wednesday, with regard to the representation of the 140-member Barisan Nasional side vis-a-vis the 82 on the opposition benches.

In different circumstances perhaps the contents would be a little academic, but when they emerged amid all the talk of defections from the ruling party to the opposition -- hence the prospect of a collapse of the BN government -- a fresh but clear perspective was put in place.

And the way it was put forward was certainly thought-provoking.
Since a change of government would inevitably mean a change of prime minister, the flyer dives straight into the issue from the first line.

"Dismissal of PM: The Yang Di-Pertuan Agong has no power to dismiss the PM [Article 43(5)]. But if the PM ceases to command the confidence of the Dewan Rakyat then the PM must exercise one of the two choices -- a) submit the resignation of his entire government [Article 43(4)] or b) advise the king to dissolve the Dewan Rakyat and call a new election [Article 43(4)]."

What the above means is that the government does not straight away change hands even with enough crossovers because the prime minister still has the option of exercising an exit strategy by advising the king to dissolve Parliament.

Although under Article 40(2)(b), the king has the discretion to refuse this advice, such a situation of the king not heeding the advice of the prime minister for the dissolution of Parliament has never been tested.

So, crossovers could backfire as they could lead to a dissolution of Parliament and the calling of snap elections.

Snap elections? Now? After the gruelling times before and after March 8, would we want to go through the whole painful process again?

As if dealing deeper with the issues at hand, the pamphlet also argues on the demerit of crossovers and the circumstances in which an anti-defection law to cover elected representatives could be enacted even though it is seen to be unconstitutional.

It says that in a 1994 case involving Kelantan's Sungai Pinang assemblyman Nordin Salleh who, together with Wan Najib Mohd (Limbongan), joined Umno shortly after being elected on a Semangat 46 ticket in the 1990 general election, the Supreme Court held that the Kelantan anti-hopping law was a breach of freedom of association as guaranteed by Article 10 (1)(c) of the Constitution.

Overcoming this judicial decision is possible in two ways, the pamphlet adds. One is a constitutional amendment to forbid party-hopping, which may not be possible given that BN does not control a two-thirds majority in the Dewan Rakyat.

The second is to promulgate an Emergency Ordinance under Article 150(2B) to provide that: i) anyone who is expelled or resigns from the party on whose ticket he was elected must vacate his seat and return to the electorate at a by-election; ii) alternatively, provide that the "hopper" is disqualified to contest for five years.

This will be similar to Article 48(6) which deals with MPs who resign from the Dewan Rakyat.

An Emergency Ordinance, as the name suggests, is a law passed by the executive with the consent of the king in an emergency situation (the pamphlet argues that party-hopping, if it gets worse, can be deemed an "emergency situation").

This, I think, is going a little too extreme and is open to challenge as it could be constitutionally questionable.

On top of that, such a law is like a double-edged sword to any party. It is useful only when it serves a particular purpose at a particular time.

The arguments are very academic still.

In the meantime, all the talk about defections has not abated though most people don't really know how serious the whole thing is.

As a foreign diplomat who is closely watching developments puts it: "It could just be a rattle of the cage."

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