Legal issues on GE13


  • Letters
  • Thursday, 21 Mar 2013

Debate about the date of the impending general election continues to generate interesting issues of constitutional law.

THE public debate about the impending general election continues to elicit interesting issues of constitutional law.

Delay: Many who had predicted an early general election are exasperated at the “delay” and are critical of it. Constitutionally speaking, there is no delay. The Parliament elected on March 8, 2008 had its first meeting on April 28, 2008.

According to Article 55(3) of the Constitution, Parliament’s life expires five years after its first meeting. The five years will end on April 27.

A full-term parliament is rare but is perfectly legal and politically fairer than a premature, surprise dissolution.

A government that allows the elected assembly to live out its full five years must be commended and not condemned.

In some countries like the UK, the law has moved in the direction of fixed term parliaments.

Caretaker mode: As GE12 was held on March 8, 2008, some commentators are making the startling suggestion that on March 8, 2013, the Government exhausted its five-year political mandate and went into “caretaker mode” with diminished powers. This is a clever but legally incorrect view for four reasons.

First, under Article 55(3), the tenure of Parliament (and of the newly appointed government) commences from the date of Parliament’s first meeting and not from the date of the election.

Second, Article 55(4) allows a delay of 60 days between a parliamentary dissolution and an election, and 120 days between dissolution and the summoning of the new parliament.

This means that the maximum period between one election and the next and one parliament and the next is not five years but five years plus 120 days.

Third, a caretaker government is a government holding the fort in the interim period between the dissolution of Parliament and the appointment by the Yang di-Pertuan Agong of a Prime Minister and his Cabinet after a general election.

This means that the Najib Government will go into caretaker mode only on the date the Dewan Rakyat is dissolved.

Fourth, there is a difference between prorogation and dissolution. Right now, the Dewan Rakyat is in prorogation under Article 55(2) and not under dissolution under Article 55(4).

Federal-state tie-up: It has been argued that the date of dissolution of the Johor state assembly on March 21 ties the hands of the Prime Minister who must, in order to synchronise federal and state elections, advise the King to dissolve Dewan Rakyat on or before March 21.

Indeed there are compelling political, administrative and financial reasons for holding federal and state elections concurrently.

Each election since 1959 has seen such federal-state simultaneity.

However, in our federal system, no law imposes this requirement. Both federal and state governments can choose their own timing for going to the polls.

In practice, however, the states toe the federal line on the date of their assembly dissolution to save the huge cost of holding separate polls.

In turn, the Prime Minister is legally justified in selecting the timing for parliamentary dissolution.

He may let the Dewan Rakyat run its full course till the pale dusk of the impending night of April 27/28, irrespective of the dissolution dates for state assemblies.

These dates are: Johor, March 21; Negri Sembilan, March 26; Pahang, April 7; Selangor, April 22; Perak, April 24; Malacca, April 26; Perlis, April 28; Kelantan, April 28; Sabah, April 29; Penang, May 2; Kedah, May 2; and Terengganu, May 5. The Sarawak assembly, elected in 2011, ends its term only on June 20, 2016.

As to the federal-state tie-up for joint elections, two points need to be made.

First, such synchronisation is highly desirable but not mandated.

Our Prime Minister’s hands are not entirely tied down by the Johor assembly’s mandatory dissolution on March 21 and state elections in Johor within 60 days, i.e. before May 19.

Second, if such a federal-state tie-up is sought, as is likely, the calendar permits it to be achieved. Presuming the Dewan Rakyat goes the distance and dissolves on April 28, there are still 22 days till May 19, which is the last date for Johor state elections.

This 22-day period, though rather tight, is sufficient for the fixing of a nomination date, the period of campaigning and the holding of the polls before May 19.

However, the Election Commission has the last word on these matters.

Emergency: It is to the great credit of the Prime Minister that despite the armed incursion and the bloodshed in Sabah, a proclamation under Article 150 was not issued to declare emergency nationally or in Sabah.

In the past, emergencies have been declared for much lesser reasons e.g. in Sarawak on Sept 14, 1966 and in Kelantan on Nov 8, 1977.

If the Prime Minister had invoked the powers under Article 150, what would have been the effect on general elections?

Contrary to what is believed, an emergency proclamation does not automatically suspend elections.

We were under a continuing state of emergency from 1964 till 2011. Yet, elections were held regularly in 1969, 1974, 1978, 1982, 1986, 1990, 1995, 1999, 2004 and 2008.

What an emergency proclamation does is that it enables Parliament or the King (if the two Houses are not sitting concurrently) to pass crisis legislation and suspend most parts of the Constitution.

The suspension is not automatic and must be explicitly provided for.

As things stand, the Government is using the Security Offences (Special Measures) Act 2012 and the Penal Code to deal with threats to security and public order.

If, due to the military operations in Lahad Datu, constituents in any federal or state constituency are dislocated, the Election Commission has powers under Regulation 3(5) of the Election (Conduct of Elections) Regulations 1981 to relocate polling centres, or to suspend the poll in any centre.

That may delay some results but the rest of the electoral exercise can proceed normally.

It is heartening to note that despite the crisis in Lahad Datu, our general election has not been derailed. In a few weeks’ time, the sound of guns in Sabah will be drowned out by the voice of the people.

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM

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