The General Election has brought up many engaging and intractable issues from the dissolution of Parliament, to the legality and legitimacy of a caretaker government, to the role of Sultans in the appointment of Mentris Besar. It may be time to relearn our constitutional law.
THE unexpected result of the recent General Election has brought to our consciousness a large number of constitutional issues that require deep reflection.
The Prime Minister’s power to advise early dissolution of the Dewan Rakyat under Article 55(3) and to choose the timing of the electoral contest has been criticised and compared to the American system where the date of election is fixed by law.
The Yang di-Pertuan Agong’s discretion under Article 40(2)(b) to refuse the PM’s request for dissolution is being noted in the context of his conventional duty to accept the PM’s advice on this matter.
The legality and legitimacy of the government to continue in a caretaker capacity pending the election and summoning of the new Parliament has been criticised as a contrast to the Bangladesh system where a neutral government assumes the reins of power during the election period.
Some Opposition leaders have argued that despite the convention in Britain, in Malaysia the previous PM and Cabinet have no automatic right to assume caretaker capacity unless there is a formal appointment by the King under Article 43(2).
Questions have been asked as to why the PM was able to dissolve not only the Dewan Rakyat but also all state assemblies except the one in Sarawak. In particular, why did the Opposition-controlled Kelantan government go along with the PM to hold elections prematurely?
The legal position is that in our federal system the PM has no legal control over any state assembly or over the Sultans' or Governors' discretion to permit or refuse a premature dissolution. The PM was able to combine federal and state elections due to the Barisan Nasional’s near-monopoly of power at both federal and state levels. However, Kelantan could have said “no” to early elections.
Many aspects of the electoral system have come under scrutiny. Among them are the high voting age of 21; the wide disparities in the constituencies' population size (and its implications for an equal right to vote); the suspicions surrounding the system of postal balloting; and the last minute decision to cancel the use of indelible ink to mark those who have voted.
What is the role of the Sultans in the appointment of Mentris Besar? Do the Sultans have a margin of discretion or is this a purely ceremonial role? In particular, are the Sultans bound by the advice of the Prime Minister?
Within what time frame must the appointment of the PM, the Cabinet, the Mentris Besar and state exco members be accomplished? It is noted that unlike upper time limits for the convening of assemblies after an election, there are no time limits for the appointment of the executive.
Due to the phenomenon of “hung assemblies” i.e. assemblies in which no single party or coalition achieved a majority, the choice of Mentri Besar became a bone of contention in the states of Perak, Selangor and Kedah.
Perak faced the biggest dilemma. The loose opposition coalition has a clear majority of 31/59 but the component parties – DAP (18), PKR (7) and PAS (6) – appear severely disunited. Barisan, with 18, has the largest number of seats but does not have a majority in the 59-member state assembly.
In Nepal, the Constitution provides that if no party attains a majority, the faction with the largest number of seats should be given first bite of the cherry. We have no such rule. Nevertheless, could the Sultan of Perak have appointed the Barisan to form a “minority government”?
Such governments are not unknown. James Callaghan headed one in Britain in the 70s. India has had many. In Italy they are a norm. Their main problem is that they are vulnerable to a vote of no confidence and may lead to repeated elections.
In Perlis, internecine conflicts within the Barisan majority resulted in high drama. The former Mentri Besar sought to use the Barisan Nasional leader’s letter as conclusive proof of his “appointment”. It is a reflection of the poor state of constitutional literacy that such a baseless argument was given wide consideration.
Constitutionally speaking, the Ruler must be above politics. In turn, the Barisan leader is perfectly justified in recommending an assemblyman to the Ruler as the party’s anointed nominee. But in our system of federal-state division of powers, a federal Prime Minister cannot take over the functions of the state Ruler or Governor whose controlled discretion in the matter of appointment is explicitly mentioned in Article 39(2) of the Perlis Constitution.
The fact that a majority of the members of the Perlis Assembly expressed no support for the former Mentri Besar was sufficient reason for the Raja of Perlis to use his undoubted discretion under Article 39(2) to appoint someone else who had such a majority.
Questions have also arisen whether in the nine Malay States a non-Malay can assume the post of MB. The legal position is that all Constitutions in the nine Malay States require that the MB must be a Malay-Muslim. However all nine State Constitutions also grant the Sultan a residual discretion to waive this rule if it is expedient to do so.
Critics are questioning whether these ethnic provisions can stand in the face of the Federal Constitution’s rule of equality before the law in Article 8(1) and the general ban in Article 8(2) of religious and racial discrimination. It is noteworthy that there is absence of any ethnically restrictive rule in relation to the federal Prime Minister.
Interesting though these arguments are, they may not succeed in the courts on the grounds firstly, that in Malaysia racial and religious differentiations permeate the constitutional fabric. Secondly, in our federal system, states have some autonomy to retain their historical, indigenous elements.
Thirdly, state Constitutions are not permitted to violate the “essential provisions” of the Eighth Schedule. Other than for violation of the Eighth Schedule, courts should be slow to invalidate any provision of state Constitutions.
If the Mentri Besar must be a Malay-Muslim, then must the Deputy Mentri Besar who acts on behalf of the Mentri Besar on occasion, also be a Malay-Muslim? How many Deputy MBs can a state have?
At the federal level, what are the constitutional implications of the Barisan’s loss of a two-third majority? Will the enactment of legislation and of the annual Budget become difficult? Are easy constitutional amendments a matter of the past?
Does the loss of the two-third-majority mean that Article 153, Malay privileges and the NEP (now the NDP) are going to be repealed? It must be pointed out that Article 153 is one of the best-protected provisions and is impossible to amend without a two-third majority and the consent of the Conference of Rulers.
Who has power over local authority elections? Can local government elections, abolished by the federal government in the 60s, be revived? Sadly, there are hostile federal laws validly enacted under Article 76 clauses (1)(b) and (4). There are also Emergency Regulations dispensing with local authority elections.
The Election has washed up against our shores these and many other engaging and intractable issues.
We now need to relearn our constitutional law.
Dr Shad Faruqi is Professor of Law at UiTM