Wong Chin Huat | Jan 9, 08 12:36pm
In Utusan Malaysia yesterday, Umno Youth deputy chief Khairy
Jamaluddin reportedly told Election Commission (EC) chairperson Abdul
Rashid Abdul Rahman, who had speculated on the date of the next
general election, to shut up.
Khairy, the premier's son-in-law, said: "No one including political
leaders should issue statements on the question (when general
elections will be held) because it is (within) the absolute power of
the prime minister. So, even I don't understand why the EC Chairman
could issue statements as such, as it's not (within) his power."
The son-in-law should shut up too because he was dead wrong. Setting
the election date is not within the power of prime minister. There
are three steps in calling a general election in a constitutional
monarchy like ours.
Step 1: PM's request to dissolve Parliament
Article 43(4) of the constitution stipulates that "If the prime
minister ceases to command the confidence of the majority of the
members of the House of Representatives, then, unless at his request
the Yang di-Pertuan Agong dissolves Parliament, the prime minister
shall tender the resignation of the cabinet."
This is commonly wrongly perceived as the premier's power to call for
elections. It is indeed a constitutional norm in parliamentary
systems to grant the chief of the Executive the power to dissolve the
legislature.
Such prerogative is necessary because there is actually a 'fusion of
power', rather than full 'separation of power'. The Executive (the
government) is indirectly elected in the legislative (parliamentary)
elections.
The Legislative and Executive branches therefore have an
interdependent lifespan. The Parliament can in any time pass a vote
of no-confidence to topple the government, as stipulated in Article 43
(4).
In such a scenario, the prime minister and the cabinet may resign for
other parliamentary blocs/parties to form the next government.
Alternatively, it may choose to reciprocally terminate the life of
Parliament by dissolving it so that the electorate may decide who
represents the current majority voice - the outgoing government which
loses the confidence of Parliament or the new majority in Parliament
who votes against the outgoing government.
In practice, the Executive can choose the best time to dissolve the
Parliament even if there is no threat of parliamentary revolt. If the
Executive chooses not to dissolve Parliament, it will stand dissolved
when its expiry date arrives - in Malaysia, that's "five years from
the date of its first meeting" under Article 55(3).
This means the current Parliament will stand dissolved only in May
2009 and the elections can be held latest in July 2009, not what is
commonly misunderstood as March 2007.
This flexibility allows a more coherent and more representative
government in a parliamentary system.
Step 2: Seeking Royal assent
Khairy is dead wrong - it is the King, not the prime minister, who
holds the absolute power to dissolve the Parliament.
Article 40A(2) of the constitution stipulates: "The Yang di-Pertuan
Agong may act in his discretion in the performance of the following
functions, that is to say -
(a) the appointment of a prime minister;
(b) the withholding of consent to a request for the dissolution of
Parliament;
(c) the requisition of a meeting of the Conference of Rulers
concerned solely with the privileges, position, honours and dignities
of Their Royal Highnesses, and any action at such a meeting and in
any other case mentioned in this constitution."
This very clause explains why 50,000 Malaysians took it to the
streets on Nov 10 last year to submit their demand for electoral
reform to the King. He has discretionary power not to dissolve
Parliament if the electoral process is dirty.
Step 3: Conducting the election
Even if Royal assent is given to the premier's request for
parliamentary dissolution, it's still not within the latter's powers
to determine the date of elections. Constitutionally, conducting an
election including setting the date, and this is the EC's job.
Article 113(1) stipulates: "There shall be an Election Commission, to
be constituted in accordance with Article 114, which, subject to the
provisions of federal law, shall conduct elections to the House of
Representatives and the Legislative Assemblies of the States and
prepare and revise electoral rolls for such elections."
Section 12(1) of Election Act 1958 further stipulates: "For the
purpose of every general election and of any by-election, the
Election Commission shall issue writs addressed to the returning
officer of each constituency for which a member is to be elected."
There is no mention of the prime minister's role in either provision,
so does he determine the election date? Technically speaking, only
partially.
Article 55(4) of the Federal Constitution stipulates: "Whenever
Parliament is dissolved a general election shall be held within 60
days from the date of the dissolution and Parliament shall be
summoned to meet on a date not later than 120 days from that date."
Regulation 3(1) of Elections (Conduct of Elections) Regulations 1981
further rules: "On the issue of a writ in accordance with the
provisions of Section 12 of the Elections Act 1958, the Election
Commission shall publish a notice thereof in the Gazette and such
notice shall specify the date on which the candidates for election
are to be nominated, which in these Regulations is referred to as the
"day of nomination", not being less than four days after the date of
the publication of such notice, and the date or dates on which the
poll will be taken in the event of a contest (referred to in these
Regulations as the "polling day"), not being less than seven days
after the day of nomination."
If the writ is to be issued immediately the next day after the
dissolution, then the whole election process could complete within a
minimum 14 days out of 60 days permissible, namely one day for the
writ, four days in between, one day for nomination, seven days in
between, one day for polling.
In this sense, if the PM can determine the dissolution date, then he
can indeed determine the range of dates for nomination (6th-52nd day
after dissolution) and polling (14th-60th day after dissolution).
Khairy's mistakes
The son-in-law should read the constitution before lecturing the EC
chief. While we may not have confidence in Abdul Rashid's integrity
and competence, Malaysians must still defend the dignity of his
office from the son-in-law's attacks.
Khairy is wrong in two aspects.
Firstly, he must not take Royal assent for granted. If Khairy were
the son-in-law in Thailand, he could have faced c charge of lese
majeste. He should apologise to the King, the premier and Malaysians
for misleading the public with misinterpretation, ignorance or
contempt of the constitution.
Secondly, he is in no position to lecture the EC chief.
Constitutionally, after the King decides on the date of dissolution,
the EC will decide the date of nomination and polling.
Even if the prime minister enjoys the King's confidence, he can only
determine the range of dates, while the EC head will determine the
exact date.
If the premier has already informed the EC chief of his preferred
date of dissolution, wouldn't Abdul Rashid know when the election
will be called?
Rashid must defend the stature and dignity of his high office and
whatever reputation he has left. He must tell Umno and Barisan
Nasional politicians that he is the one who calls the shots, not the
premier - and certainly not the son-in-law who has not checked the laws.
WONG CHIN HUAT is chairperson of the Writers Alliance for Media
Independence.
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