In Utusan Malaysia yesterday, Khairy Jamaluddin has reportedly asked Election Commission chairman Abdul Rashid Abdul Rahman who speculated the date of general elections to shut up. The 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 (Ab. Rashid) 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. Election date is not within the power of Prime Minister.
There are three steps to general elections in a constitutional monarchy like ours.
Step 1: PM’s Request for Parliamentary Dissolution.
Article 43(4) 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 what commonly misperceived as the power of the PM to call for elections. It is indeed a constitutional norm in parliamentarian systems to grant the chief of the executive branch the power to dissolve the legislature.
Such prerogative is necessary because there is actually a “fusion of power”, rather than a full “separation of power” in parliamentarian systems. The Executive (what we normally call Government) are indirectly elected in the legislative (Parliamentary) elections.
The Legislative and Executive branches therefore have interdependent lifespan. The Parliament can in anytime pass a vote of no-confidence (with the defeat of a major legislation piece having the same effect) to topple the government, as stipulated in Article 43(4) mentioned above.
In such scenario, the Prime Minister and his/her Cabinet may resign for other parliamentary blocs/parties to form the next government. Alternatively, it may also choose to reciprocally terminate the life of the Parliament by dissolving it so that the electorate may decide who represents the current majority voice, the out-going government which looses the confidence of the parliament or the new majority in the Parliament who votes against the outgoing government.
In practice, the Executive can choose the best time to dissolve the parliament even there is no threat of parliamentary revolt. If the Executive choose not to dissolve the parliament, it will stand dissolved when its expiry date comes – in Malaysia, that’s ” five years from the date of its first meeting” (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 commonly misunderstood as March 2007.]
This flexibility allows more coherent and more representative governments in parliamentary systems.
In presidential systems like America where the legislature (Congress) and executive (Presidency) are elected separately and independently and likely with different life spans, the two branches may be controlled by rival parties, resulting in “divided governments”. A likely consequence of such complete “separation of power” is political deadlocks.
Taiwan, which practices a semi-presidential system, faces the similar problem where the President’s party which also controls the Cabinet (Executive Yuan) has a very bad relation with the opposition-dominated parliament (Legislative Yuan).
This logic behind the constitutional design is why a parliamentary system like Malaysia cannot have fixed terms for governments, a fact which many Malaysians (including some political commentators) like to lament. You need to first have a presidential system, which first requires the abolition of monarchy, which is in turn currently prohibited by the Sedition Act.
Step 2: The King’s Royal Consent
What Khairy is dead wrong is that HM the King, not the R. Hon. Prime Minister, holds the absolute power to dissolve the Parliament.
Article 40A (2) of the Federal Constitution stipulates that
“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 is the very clause that explains why 50,000 Malaysians took it to the street on November 10 to submit their demand for electoral reform to the King. HM indeed has the discretionary power not to dissolve Parliament if the electoral process remains dirty.
Step 3: EC Conducting Elections
Even if the King has given his royal consent to the PM’s request for parliamentary dissolution, it’s still not the PM’s power to determine the date of elections.
Constitutionally, conducting elections including setting the date for elections is the job of Election Commissions.
Article 113 (1) stipulates that
“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.”
As even school children know, the PM is not a member of the EC.
Section 12(1) of Election Act 1958 further stipulates that
“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.”
Again, there is no mention of the PM’s role in the law.
Does PM determine the election date?
Technically, PM does partially determine the election date.
Article 55(4) of the Federal Constitution stipulates that
“Whenever Parliament is dissolved a general election shall be held within sixty days from the date of the dissolution and Parliament shall be summoned to meet on a date not later than one hundred and twenty days from that date.”
Regulation 3(1) of Elections (Conduct of Elections) Regulations 1981 further rules that:
“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).
[Note: the gaps (between the writ and nomination and between nomination and polling) are interpreted as exclusive of the nomination and polling day itself, so they are one day longer than what I wrote originally. Sorry for any confusion. I thank Sivarasa and Chang Kim for clarifying this.]
The Son-In-Law Should Read Constitution Before Lecturing EC Chief
While we may not have confidence in Tan Sri Rashid’s integrity and competence as the EC Chief, Malaysians must still come to defend the dignity of his office from the attacks of the son-in-law.
Khairy is wrong in two aspects.
Firstly, he must not take the royal consent for parliamentary dissolution for granted. If Khairy were the son-in-law in Thailand, he could have been facing a “les majesty” charge. While one’s freedom of expression must be protected, the son-in-law should apologize to HM The King, the PM and Malaysians for misleading the public with his misinterpretation, ignorance or contempt of the Constitution, which results in re-assigning the royal power to the PM.
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. So, even if the PM enjoys the confidence of the King, he can only determine the range of dates, while the EC chairman will determine the exact date. If the PM has informed the EC Chief his preferred date of dissolution, will Rashid not know when to call elections?
Rashid must defend the stature and dignity of his high office. He must tell UMNO/BN politicians that he is the one who calls the shot. Not the PM. Certainly not the son-in-law who does not bother even to check the Constitution, laws and by-laws before asking others to shut up. Rashid must defend whatever reputation he is still left with.