Thursday, 9 August 2012

Malaysian Constitutional posers for G. Election 13

Once Parliament is dissolved, a general election need not be held immediately. The Constitution permits a delay of 60 days from the date of dissolution.

A GENERAL election may be around the corner. So we need to brush up on our knowledge of the constitutional principles relating to elections.

No fixed term: Under Article 55(3) of our Constitution, the life of Parliament is stated to be five years from the date of its first meeting. As that date was April 28, 2008, the existing Parliament will automatically dissolve when the sun rises on April 28, 2013.

However, it is constitutionally permissible for the Prime Minister to advise the Yang di-Pertuan Agong to dissolve Parliament before the expiry of its term and thereby to give himself the advantage of choosing the most favourable time for the electoral contest.

This is in contrast with many Commonwealth countries including Britain which have enacted laws to have fixed term legislatures. Malaysia may wish to emulate this wholesome practice.

Early dissolution: Though the King is a constitutional monarch required to act on advice, in the matter of early dissolution, he has been explicitly vested by Article 40(2)(b) with a discretion to accept or reject his PM’s counsel. Conventionally, however, he always obliges though in exceptional circumstances he may not do so.

Elections: Once Parliament is dissolved, a general election need not be held immediately. Article 55(4) of the Constitution permits a delay of 60 days from the date of dissolution. This means that contrary to popular expectations of early polls, the next election can be held as late as the last part of June 2013!

One must note, however, that the timing is not for the PM to determine. The nomination date, the date of polling and the campaign period are in the hands of the Election Commission, which must act with independence and impartiality. The present law permits a campaign period of no less than seven days though news has it that for the next election, the EC will permit 10 days.

Interim period: Between the dissolution of one Parliament and the convening of the next, who steers the ship of state? The Constitution is gloriously silent on this important issue. For this reason, the British constitutional convention is adopted that the incumbent PM who called the election continues to remain in office in a caretaker capacity.

Powers of the caretaker PM: Leadership during interim periods poses problems of democratic legitimacy for the caretaker government. This is due to the fact that once Parliament is dissolved, the PM ceases to satisfy the twin requirements of Article 43(2).

These requirements are that the PM must belong to the House of Representatives and he must in the judgment of the King command the confidence of the majority of the members of the House. As the House ceases to exist, the legitimacy rug is pulled from under the PM’s feet.

For this reason there is worldwide debate about the need to impose clear curbs on the powers of interim governments.

In Australia, a Caretaker Conven­tion has been drafted to outline that the proper role of such a government is to be a night watchman, to hold the fort, not to initiate radical policies, not to dismiss or appoint new judges or undertake significant economic initiatives.

In India, the President has on several occasions vetoed caretaker governments’ measures because exercise of such powers may embarrass the government to be formed.

In the Malaysian case of PP v Mohd Amin Mohd Razali (2002) the court held that Article 40(1), which requires the monarch to act on advice, is not applicable if the advice is rendered by a caretaker government during the dissolution of Parliament.

Hung Parliament: If no single party or coalition emerges with an absolute (50% + 1) parliamentary majority, the new legislature will be referred to as a hung Parliament.

Such parliaments exist and function throughout the world but have never made an appearance in Malaysia at the federal level. Commentators are deeply divided about their demerits or merits.

Appointment of PM: Whatever one’s views on hung parliaments may be, it has to be conceded that they create massive problems for the Head of State on a number of issues, among them the critical one of who is to be trusted with the mantle of leadership. Several competing considerations are available.
First is the incumbency rule. If no one secures an absolute majority, the caretaker PM must be given the first chance to form the government.

Second, in Nepal there is a constitutional rule that in a hung Parliament, the first bite of the cherry must be offered to the leader of the largest party.

Third, if a viable coalition or a unity government can be hammered out, it should get the chance to lead the nation.

Fourth, if no coalition can be cobbled together, the Head of State should appoint a “minority government” that is capable of obtaining ad hoc support to pass the budget and other critical measures.

If the defeated PM asks the King for an immediate “double dissolution”, should His Majesty consent? It is submitted that Article 55(4) requires that after one dissolution the new parliament must be convened within 120 days.

The proper course of action would be for Parliament to meet, a vote of no-confidence to be taken and then only the House dissolved for a new election unless an alternative government can be put in place.

Caretaker’s tenure: If the ruling party fails at the general election, must the caretaker PM who took the country to the poll resign immediately? In England Gordon Brown refused to step down till he had (unsuccessfully) exhausted efforts to form the government.

If the caretaker PM refuses to step down, can the King dismiss him?

If the formation of a unity or coalition government takes a long time, must the defeated Prime Minster re-main in office till a new PM is appointed? Most amazingly, Belgium went 535 days with a caretaker government because the new government took time to be pieced together.

The permutations of politics are many and more than any other aspect of a nation’s political life, general elections throw up issues that test our wisdom to the fullest.

> Dr Shad Faruqi is Emeritus Professor of Law at UiTM

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