Wong Chin Huat | Jan 9, 08
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).
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.
The son-in-law should shut up, too