Elections during an emergency

A hot button issue has cropped up concerning the holding of elections, if indeed one is constitutionally mandated, when a proclamation of emergency is in effect.

There are various ways of looking at this issue for finding workable solutions.

Article 150(2B) of the Federal Constitution (FC) offers some answers which allows for the promulgation of such ordinances as may be required owing to circumstances like an impending election which must be held before a certain date under state law.

In effect, the Yang di-Pertuan Agong may make these emergency ordinances under Article 150(2C) FC which has the force of an Act of Parliament.

But Article 150(3) FC grants Parliament the power to annul these ordinances, but not the proclamation itself. But, today, whether Parliament is suspended or dissolved, Article 150 FC becomes impotent.

Article 150(4) FC now takes on a pivotal role as the executive authority of the Yang di-Pertuan Agong extends to directions given to a state’s legislative authority and to the giving of directions to the government of a state or to any officer or authority thereof. There is no evidence that the power to hold elections in Sarawak has been denied.

The State List and the Concurrent List of the FC parry and thrust until one comes to terms with Article 76A (2) FC which grants a usual power to a state to amend or repeal any federal law passed before the passing of the Act that empowered the state law.

This means the DUN of Sarawak may invoke a state law, if one is already promulgated, to hold the election during a state of emergency.

Next, we need to visit Article 80(3) FC where the executive authority of the federation can only be effectuated and effective if the State Legislative Assembly has passed a resolution.

So, now, the central issue is that since Parliament is suspended, while the DUN of Sarawak is not, therefore it should pass a resolution to hold the elections as warranted by the FC, being that it is the supreme law of the land.

The Yang d-Pertuan Agong has the constitutional power to invoke Article 80(4) FC and grant Sarawak the privilege of holding the elections.

But we must grapple with the restrictions, constraints, controls and restraints of this dastard pandemic if we are to give essence and meaning to the supreme law of the land. Life or law need not be debated. There is no negotiation on this issue.

The Latin adage casus incogitati offers another responsible response to the DUN of Sarawak to pass that resolution because “circumstances un-thought of, or un-provided for may necessitate rules on equitable grounds”, and in this case to meet the state deadline to hold the elections.

Perusing the Constitution of Sarawak (COS) for answers, remedies and solutions concerning state elections during an emergency as proclaimed, is interestingly convincing.

First Article 27 COS (“Supremacy of Constitution”) is clear that “any Ordinance passed on or after Malaysia Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”.

There is a clear and cogent mandate here when one scrutinises Article 27.

Next, we must consider Article 24 (COS) which again is unambiguous when it stipulates that the DUN shall regulate its own procedure and may make standing orders for that purpose.”

Article 24 (COS) therefore is on all fours with Article 80(3) FC and Article 76A (2) FC. There is no conflict or controversy, neither doubt, confusion or uncertainty when one looks at all these constitutional provisions in a holistic fashion and not in isolation.

The other viable argument that can be advanced is Article 5 (COS) where the executive authority is vested in Sarawak’s Yang di-Pertua Negeri enjoying similar powers of a Ruler according to Article 70 FC. This is constitutional thunder and lightning.

Another open path to holding elections before the June 2021 mandate in Sarawak could be gleaned from the Ninth Schedule List IIA expanding on Article 95B(1)(a) FC which recognises and validates native law and custom and native courts under the State List.

Absent a clear mandate, a duly convened Native Court in Sarawak has all the power and authority to invoke Article 153 FC (Sarawak natives enjoy a “special position” like the Malays in Malaya) to issue a declaration that state elections must happen before the June 2021 deadline. After all, under 145(3) FC, the Malaysian Attorney General is disempowered to disturb the findings of a Sarawak native court.

If the pandemic is not ravaging Sarawak, and if government has to be effective, and when the governed are at odds as to why this emergency also particularises Sarawak, we must necessarily look to Article VIII of the Malaysia Agreement which is, still, very much a huge, vexatious and troublesome crown of thorns adorning the headgear of Malaysia.

There is a huge popular sentiment in Malaya that the proclamation of emergency became necessary because the Muhyiddin government was being frog-threatened by Umno, and thus it became expedient to use the pandemic as a necessary evil.

The larger picture has to be taken into consideration. What price do we the people have to pay for peace, harmony, goodwill and prosperity? Is it safeguarding our unwritten health status, or safeguarding our written constitutional rights?

We the people voted for these agents of control and power, and when these agents drop the gauntlet, we the people have to steady the ship destined for unchartered waters.

Do we need a referendum to decide whether the state elections are crucial for the well-being of Sarawak?

The other side of the coin may depict another need, another want for reasons and purposes best known to the architects of our political destinies.

Ultimately, WHAT the people want should become more important that what the politicians want or what the written constitutions dictate.

When the rubber meets the road, we must remember that the power in the people is more valuable than the people in power.

The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.