DURING the last fortnight, a number of contentious issues washed up on our constitutional shores. The first is whether the Prime Minister can fix the date of the parliamentary dissolution and an early general election. The second concerns the legal effects of a royal pardon. The third relates to the abolition of mandatory death penalties.
Only the first two will be accommodated in this column.
Early election: There are many voices from both sides of the political fence urging the PM to act with decisiveness and determine the date for the next general election (GE15).
The belief that the PM can set the dates of the dissolution and the next election is not based on law but on populist perceptions of his powers. Legally speaking, we need to distinguish between three separate dates:
1. Date of dissolution. Under Article 55(3), the life of Parliament is five years from the date of its first meeting. If the PM wishes for an earlier dissolution, he can make such a request to the Yang di-Pertuan Agong (YDPA). Conventionally, the King generally accepts this advice, but under Article 40(2)(b), His Majesty has an undoubted personal discretion to say “no”. The reasons for the royal refusal are unchallengeable in a court of law.
2. The second date is the date of nomination. This is the function of the Election Commission (EC) and not of the PM. The relevant law is Section 3 of the Election (Conduct of Elections) Regulations 1981.
3. The third date is the date of polling. This too is the function of the EC and not of the PM.
Two rules apply: (i) Under Article 55(4), whenever Parliament is dissolved, a general election shall be held within 60 days from the date of the dissolution. (ii) Under the Regulations of 1981, the campaign period is fixed by the EC and should not be lesser than the minimum period of 11 days.
This means that the PM can request a dissolution but cannot usurp the powers of the King and the EC. One must also note that conventionally, the power to advise the monarch has shifted from the Cabinet to the PM. The PM can be guided by his Cabinet, his party or his coalition but cannot be dictated to by them.
Whether GE15 should be held soon is ultimately a matter of political judgment. The five-year life of Parliament expires on July 15, 2023. Elections must be held within 60 days of the dissolution i.e. by Sept 16, 2023 or earlier.
In favour of an early election, the following factors appear to be relevant:
> The Memorandum of Agreement (MOU) on Confidence and Supply between the government and Pakatan Harapan expires on July 31, 2022. Umno has served notice that it will not extend the MOU with the Opposition after this date.
> Umno’s withdrawal from the MOU may produce political uncertainty or another despicable round of party hopping or an attempt at a vote of no-confidence. There is danger of another minority government situation. It is argued by some that to abort these dangers, a GE is necessary.
> From Umno’s perspective, the momentum of triumphs in Johor and Melaka should be utilised. The dismal performance of PH in these states must be exploited.
> The “court cluster” MPs’ wish for an early poll before possible disqualification under Article 48(5) applies in relation to nomination, election or appointment to either House.
On the other hand, there is much merit to going full term for the following reasons:
> The demand for an early GE is not coming from the rakyat but from Umno. The rakyat are struggling with bread and butter issues.
> This is not the right time for an election due to the weak state of the economy, rising inflation, unemployment, the scandal-haunted reputation of some political parties and their leaders, and the continuing effect of the devastation caused by Covid-19.
> The major political parties have not worked out a realistic, united and inclusive plan for national revival. Identity politics, racial, religious and regional polarisation still hold sway. Sabah and Sarawak’s discontents are nowhere near resolution. “The big tent” approach has not found much acceptance.
> Due to the deep inter and intra rivalries within the major political parties, the next election may not produce a strong and stable government. We may have a repeat of 2020’s party hopping and the rise and fall of governments. This is despite thumping victories in Sarawak, Melaka and Johor. State elections are not always a good barometer of national results.
> We should, therefore, have an anti-hopping law in place before we go into GE15.
Effect of royal pardon: A number of prominent politicians are facing trials for grave criminal offences. If convicted, they may apply for a royal pardon before or after the GE. If the pardon is granted, what is its effect on their desire to re-assume leadership positions? This riveting issue is on many minds.
Under Article 48(1)(e), a conviction with an imprisonment for one year or a fine of RM2,000 disqualifies a person from being a member of either House. However, under Article 48(4)(b), the disqualification is suspended if, within 14 days, the convicted MP files an appeal. There is a similar suspension under Article 48(4)(c) if the MP files a petition for pardon. This means that MPs convicted of crimes can continue to enjoy the perks of office till their appeal or petition is disposed off.
However, if Parliament is dissolved and elections are called, then Article 48(4)’s questionable provision does not apply for the purpose of nomination, election or appointment of any person to either House. Anyone with a conviction is disbarred for five years from contesting unless he/she is pardoned by the King, ruler or governor.
What is the effect of a pardon under Article 42? Is the convict merely released from the penalty or is his conviction wiped off the slate? Prominent lawyers are in disagreement about this issue.
One view is that a royal pardon does not obliterate the conviction but only frees the convict of the sentence. This was the situation of Mokhtar Hashim in 1982 whose death sentence was commuted to life imprisonment. He was later pardoned and released. The pardon was for the punishment, not the conviction. If this view is correct, which I submit it is not, then those convicted are totally disbarred for five years even with a pardon.
The other view, which I support, is that much depends on the nature of the pardon. Under Article 42, the Head of State has a bundle of powers: to grant pardon, reprieve, respite, remission, suspension, and commutation. If it is a full pardon, then according to the US Supreme Court case of Ex parte Garland, “a pardon reaches both the punishment prescribed for the offence and the guilt of the offender so that in the eye of the law the offender is as innocent as if he had never committed the offence”.
In the United Kingdom, it is well settled that a pardon by the monarch removes not only the punishment that flowed from the offence but also “all the legal disabilities consequent on the crime”.
In Malaysia in the late 60s, Lim Kit Siang was pardoned for an election offence by his election agent and retained his MP seat.
In 2018, (Datuk Seri) Anwar Ibrahim was pardoned and went on to contest and triumph in the Port Dickson constituency.
The Anwar Ibrahim pardon, however, raised an interesting question. A voter challenged his eligibility on the ground that he had only received a “full pardon” whereas Article 48(1)(e) of the Federal Constitution requires a person to receive a “free pardon”. Unfortunately, the matter was not litigated.
Unlike reprieve, a pardon wipes the criminal law slate clean. However, civil wrongs accompanying the crime can still be pursued. A person who receives a pardon for murder may still be subject to a lawsuit for wrongful death. Pardons also do not affect administrative consequences, such as licence suspensions.
Emeritus Prof Dr Shad Faruqi is Holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are the writer’s own.
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