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Sabah need not hold State polls until Oct 2025
Published on: Sunday, September 25, 2022
By: Shad Saleem Faruqi
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THE grapevine is filled with news that Parliament may be dissolved during or after the impending Budget session. The law in Article 55(4) of the Federal Constitution says that whenever Parliament is dissolved, a general election shall be held within 60 days and the new Parliament shall be summoned within 120 days of the dissolution. Will all state assemblies also go to the polls if a federal election is called? There is no such constitutional requirement and the decision to hold a state election prematurely will be guided by political imperatives at the state level, especially in Opposition-controlled states. 

The Federal Government cannot impose its views on state Rulers, governors, premier and chief ministers. It is noteworthy that due to recent snap elections in four states, the five-year term of their assemblies ends much later than that of the Parliament, which is July 16, 2023. 

For Sabah, it is Oct 9, 2025; Melaka Dec 27, 2026; Sarawak Feb 14, 2027; and Johor April 21, 2027.

Another contentious issue in some minds is whether the prime minister’s advice to dissolve the Dewan Rakyat prematurely is binding on the Yang di-Pertuan Agong. One view is that on a matter as political as the timing of a general election, our constitutional monarch is conventionally bound by the advice of the PM. 

This convention of the Westminster system of parliamentary government has been consistently observed in our country. It is noteworthy that of the 14 electoral exercises up to now, almost all were premature and the ones in 1978, 1982, 1986, 1990, 1999 and 2008 were around the four-year mark. 

In opposition to the view that in the matter of dissolution, the Yang di-Pertuan Agong is absolutely bound by the advice of the PM, a number of convincing arguments can be made. 

First, constitutional conventions (or customs) are not laws. They are the “political morality” of the day and are political practices regarded as binding by those to whom they apply but are not enforceable in a court of law.

Second, unlike Britain which has no written constitution, we have a written and supreme charter as our basic law. Though its overall scheme is to create a constitutional as opposed to an absolute monarchy, it nevertheless confers on His Majesty discretionary functions in some critical areas of law and politics. All in all, the Yang di-Pertuan Agong performs two categories of functions:

- Non-discretionary functions exercisable on advice under Articles 40(1), 40(1A) and 39; and

- A small number of critical, discretionary functions in relation to which the King may consult with anyone, but is empowered to act on his own. Dissolution of Parliament is one such power.

The relevant provision is Article 40(2), which states that the Yang di-Pertuan Agong may act in his discretion in the performance of the following four categories of functions:

- The appointment of the prime minister; 

- The withholding of consent to a request for the dissolution of Parliament;

- The requisition of a meeting of the Conference of Rulers; and 

- In any other case mentioned in this Constitution. In relation to these discretionary powers, a few observations are in order.

First, though discretion is undoubted, it is not absolute. It may be guided by other provisions of the Constitution. 

For example, though the appointment of the PM is a discretionary power, Article 43(2)(a) prescribes that the PM must come from the lower House and must be likely to command the confidence of the majority in that House. 

Second, the persuasive role of conventions cannot be discounted but, as has been observed above, conventions are not laws and are not enforceable in a court.

Third, under Article 40(2), the fourth category of “any other case mentioned in this Constitution” is not clearly defined or explicated. It is submitted that what is meant is that discretion exists in any other case mentioned explicitly in this Constitution or because of necessary implication. One has to scan the entire Constitution to determine these areas. 

A partial list would be: 

- Right to ask for any information from the government under Article 40(1). 

- Delaying legislation for 30 days under Article 66(4A). 

- Some constitutional appointments like to the Public Service Commission under Article 139(4); the Education Service Commission under Article 141A(2); and the Election Commission under Article 114(2). Fourth, in addition to the constitutionally conferred discretionary powers mentioned in Article 40(2), there are probably other instances in which residual, reserve, prerogative and inherent powers of the Yang di-Pertuan Agong may come into play. 

We have to remember that life is larger than the law and no Constitution is exhaustive or can anticipate every contingency. The residual power situation requires separate treatment but may be summarised as follows:

- Appointment of a caretaker PM after the previous PM’s resignation or death if the ruling party or coalition is divided on the matter. 

- Appointment of a caretaker PM if there is a “hung Parliament”. 

- Dismissal of a PM if he loses the confidence of the Dewan Rakyat, advises dissolution, fails to secure the King’s consent to dissolution and yet refuses to step down contrary to Article 43(4). This is similar to the Perak constitutional crisis in 2009. Additionally, if the caretaker PM (who called the general election) fails to obtain a majority in the lower House but refuses to step down, the King can force him to resign. 

- Grant of honours. The Federal Constitution, unlike State Constitu­tions, is silent on this matter. 

- Refusing consent to unconstitutional legislation that does not comply with procedural requirements. 

- Gravely unconstitutional conduct by the Executive. In situations of blatantly unconstitutional conduct by the political executive, the King may have to exercise his reserve power to safeguard the Constitution. 

The influence of a constitutional monarch can never be undermined though this will have to be in an exceptional or revolutionary situation where the survival of the state is at stake. 

Our learned and late Sultan Azlan Shah, writing in 1986, summed up the situation beautifully: “A King is a King, whether he is an absolute or a constitutional monarch... It is a mistake to think that the role of a King is confined to what is laid down by the Constitution. 

His role far exceeds those constitutional provisions.” 

The powers of a constitutional monarch are as much a matter of law as of politics. They are as much an issue of legality as of legitimacy. 

- The author wishes all readers the blessings of peace and unity as we commemorate 59 years of the formation of Malaysia. The views expressed here are entirely his own.



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