DUN’S tenure and elections: are we in quandary?

Shankar Ram Asnani

From a strictly Constitutional standpoint,
the powers of His Majesty were
exercised with great wisdom and foresight.

BY SHANKAR RAM ASNANI

Amidst the global turmoil caused by the Covid-19 pandemic, we the people of Sarawak face yet another interesting situation and that is of the tenure of the current Sarawak Legislative Assembly which ends on the 6th June 2021. The people are curious to know when the Sarawak elections can be carried out. However, unfortunately, certain quarters have caused confusion.

Sarawakians have heard of this new Emergency (Essential Powers) Ordinance 2021 that came into operation with a Proclamation of Emergency issued by the King under Article 150 of the Federal Constitution.

To be precise, the Emergency (Essential Powers) Ordinance 2021 was passed pursuant to Clause (2B) of Article 150 of the Federal Constitution which is well within the powers of His Majesty.

To assist one who is keen to understand this unique Constitutional position, we quote Article 150 (1) and (2B) of the Federal Constitution that reads:

  • “150. (1) If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.
  • (2B) If at any time while a Proclamation of Emergency is in operation, except when both Houses of Parliament are sitting concurrently, the Yang di-Pertuan Agong is satisfied that certain circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as circumstances appear to him to require.”

The Emergency (Essential Powers) Ordinance 2021 was (properly) passed in accordance with Article 150 (1) and (2B) and therefore derives its legality or validity from the Supreme Law of the land, the Federal Constitution.

For your consideration, here are Sections 13, 15, 17 and 18 of the 2021 Ordinance that reads:

Election of State Legislative Assembly

13. For so long as the emergency is in force:

  • the provisions relating to an election for the election to a State Legislative Assembly in the Eighth Schedule to the Federal Constitution, Constitution of any State and any State Law shall have no effect; and
  • an election for the election to the State Legislative Assembly shall be held on a date as the Yang di-Pertuan Agong thinks appropriate after consultation with the respective Ruler or the Yang di-Pertua Negeri.”

Sitting of State Legislative Assembly

15. (1) For so long as the emergency is in force:

  • the provisions relating to the summoning, proroguing and dissolution of a State Legislative Assembly in the Eighth Schedule to the Federal Constitution, Constitution of any State and any State law shall not have effect; and
  • a State Legislative Assembly shall be summoned, prorogued and dissolved on a date as the Yang di-Pertuan Agong thinks appropriate after consultation with the respective Ruler or the Yang di-Pertua Negeri.

(2) Any meeting of a State Legislative Assembly which has been summoned before the coming into operation of this Ordinance but has not been held is cancelled.

Powers under the Ordinance shall be in addition to the powers under other written laws

17. For so long as the emergency is in force, the powers given under this Ordinance shall be in addition to, and not in derogation of, the powers given by or under any other written law for the time being in force.

Prevailing law

18. In the event of any conflict or inconsistency between the provisions of this Ordinance and any other written law, the provisions of this Ordinance shall prevail and the conflicting or inconsistent provisions of such other written law shall be deemed to be superseded to the extent of the conflict or inconsistency.

The power of His Majesty is clearly laid out in Sections 13 and 15 above. Those who do not read the above important provisions will unnecessarily cause confusion.

What had happened is apparently on May 25, 2021, Chief Minister Datuk Patinggi Abang Johari Tun Openg and other leaders of Gabungan Parti Sarawak (GPS) had rightly sought audience with the Yang di-Pertuan Agong to consult regarding the end of the tenure of DUN on June 6, 2021 and Sarawak elections which must be held soon, at some stage.

In accordance with the Sarawak Constitution, DUN has to be dissolved and the 12th Sarawak election has to be held within the strict Constitutional timelines under Article 21(4) that reads as follows:

*21 (4) Whenever the Dewan Undangan Negeri is dissolved, a general election shall be held within sixty days from the date of the dissolution and the new Dewan Undangan Negeri shall be summoned to meet on a date not later than one hundred and twenty days from that date.

In exercising the powers under the Emergency (Essential Powers) Ordinance 2021, His Majesty on May 25, 2021 advised the Sarawak government to function as normal after June 6, 2021 due to the current situation. Such decision by the King was made due to the grave emergency created by the Covid-19 pandemic (a matter of public knowledge) that has hit every corner of our country.

As at the end of May 2021, the spike in people getting infected in Malaysia is comparable to that of India and this is not a joke because if the matter gets out of control, our healthcare system is not able to cope and people will die.

The aim of the Sarawak GPS government is not to delay but the leadership is very much ‘people centric’, concerned about the welfare, life and wellbeing of the people that cannot be risked.

From a strictly Constitutional standpoint, the powers of His Majesty were exercised with great wisdom, foresight and all were done within the framework of both the Sarawak and Federal Constitutions.

The people of Sarawak are intelligent enough, can understand and give due respect that the decision of the Yang di-Pertuan Agong was meant to protect its people.

Further, it is unique that the Constitutional power of the King, is at the Apex of the Federal Constitution, is final and conclusive and shall not be challenged or called in question in any court on any ground. This is because His Majesty would have been satisficed after due consideration of the grave emergency that exist and whereby the security or the economic life (or public order) of the Federation or any part thereof is threatened in promulgating the new Emergency (Essential Powers) Ordinance 2021.

The pertinent provision of Article 150 (8) of the Federal Constitution reads as follows:

(8) Notwithstanding anything in this Constitution:

  • the  satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and Clause (2B) shall be final and conclusive and shall not be challenged or called in question in any court on any ground; and
  • no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of:
  • a Proclamation under Clause (1) or of a declaration made in such Proclamation to the effect stated in Clause (1);
  • the continued operation of such Proclamation;
  • any ordinance promulgated under Clause (2b); or
  • the continuation in force of any such ordinance.

From the above, it is clear that so long as the Yang di-Pertuan Agong is satisfied that a “grave emergency” exist or still exist, having issued a Proclamation of Emergency, the constitutional powers is vested in His Majesty and under the Emergency (Essential Powers) Ordinance 2021 to advise the Sarawak Government to function and continue as usual until August 1, 2021.

It is therefore, having considered the safety of all the people in Sarawak that His Majesty exercised his powers to suspend the Sarawak elections until August 1, 2021 and allow for DUN to continue until then.

My understanding is that though the word “superseded” is specifically used in Section 18 but the preamble of the 2021 Ordinance that reads “Whereas by reason of the existence of a grave emergency …”, Section 17 thereof that reads “For so long as the emergency is in force, the powers given under this Ordinance shall be in addition to, and not in derogation of …” and other parts of the Ordinance that expressly stated that “For so long as the emergency is in force” (Sections 3, 4, 6, 7, 11, 12, 13, 14, 15, 16 and 17 thereof) show that after the period of emergency, the provisions of the Sarawak Constitution will be given full effect and there is no cancellation or amendment of any Articles to our detriment or disadvantage.

In Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin v Dato’ Seri Dr Zambry Abdul Kadir [2010] 2 CLJ 925, the Federal Court held at Page 927:

  • In all cases, the decision whether or not to dissolve the LA is at the absolute discretion of HRH. HRH does not act on the advice of the Executive Council in the matter of dissolution of the LA, as clearly stated in art. XVIII(2)(6) of the State Constitution. (para 34)

At Pages 944 to 945:

“[34] In this regard we would, however, add that the power to dissolve the LA is vested in HRH by art. XXXVI(2) no matter in what circumstances it was made. This is clear from our reading of the said article which provides:

  • His Royal Highness may prorogue or dissolve the Legislative Assembly.

This is the only provision touching on the dissolution of the LA. Article XVI(6), in our view, does not provide for the dissolution of the LA as such, but merely provides that the MB may in the circumstances stated in art. XVI(6) request HRH for the dissolution of the LA. It does not confer the power on HRH to dissolve the LA. So in the event HRH accedes to the request for the dissolution of the LA, it has to be done under XXXVI(2) not under art. XVI(6). As we see it art. XXXVI(2) is a general power to dissolve the LA, but the circumstances under which the LA may be dissolved are varied, and one such circumstance is when there is a request by the MB to do so under art. XVI(6) and HRH agrees to such a request. Other instances that we can think of is where the government of the day may request for the dissolution of the LA prior to expiry of the five-year term in order to get a fresh mandate from the electorate. It is important to note that in all cases, the decision whether or not to dissolve the LA is in the absolute discretion of HRH. HRH does not act on advice of the Executive Council in the matter of dissolution of the LA. This is clearly stated in art. XVIII(2)(6).”

The Covid-19 pandemic has far reaching impact beyond anything the world has ever seen, with our lives deeply affected and the world economy crippled. For many who have suffered the tragic loss of loved ones, life will never be the same again. Yet, our woes are far from over. This is a battle which we Sarawakians must unite and face together as a whole.

This is not the time to politicise matters for personal gains, but to stand in line against the common enemy of Covid-19. This is not the time to criticise one another in the meaningless hope of scorekeeping on who is doing better for the rakyat, but to strive honestly and sincerely towards helping those who are less fortunate.

In these troubled times, let us all fight on the same front for a better tomorrow.

The above are my personal views of the recent issues in the Media.