Making Sense Of The Perak Controversy

Before embarking on an analysis of the state of play in Perak, it would be of value to consider the objective facts:

• two assemblymen signed undated resignation letters as a condition to their being nominated by their political party for a state election. For this, the party also gave them full support, financial and otherwise. They won their respective seats;

• the undated resignation letters were submitted to the Speaker of the Legislative Assembly. The Perak Constitution allows members of the Assembly the option of resigning their membership “by writing under his hand addressed to the Speaker”;

• the party opted to submit the resignations of the two assemblymen. It is not apparent what prompted this;

• the Speaker has accepted the resignations and communicated the fact of the resignations to the Election Commission. The Speaker has taken the position and ruled for the purposes of the Assembly that the resignations have taken effect and by-elections be held. He will treat the assemblymen as no longer being members of the Assembly for the purposes of proceedings in the Assembly;

• the two assemblymen dispute the validity of the resignation. They do not contend that the resignations letters were not under their hand. They contend that the resignations were procured through duress; and

• the Election Commission has decided that the resignations are doubtful and as such not true resignations.
  

From the above, it could be said that the following questions arose when the controversy first erupted:

• the legal value or validity of the resignations. There is no authoritative decision of the courts on this point. A 1982 decision of the then Federal Court (Datuk Ong Kee Hui) observed that such resignations could be viewed as being contrary to public policy in view of elections at both the State and Federal level being of individuals as opposed to political parties. A question of honoring the wishes of the electorate, that is the electing of the individual as opposed to the party, arises. The Federal Court did not decide on the point as the Member of Parliament concerned did not seek to invalidate the resignation nor had the Speaker been joined as a party. The point is as such open to argument; and
  

• whether the resignation letters were procured under duress,

However, these questions have been overtaken by events, in particular the decision of the Speaker to accept the resignations and give effect to them. The Speaker may be wrong but until he is shown to be wrong through valid process – either in the Assembly (to the extent that such process is available) or through the courts – the Speakers decision must stand.

In this regard, the Election Commission is charged with the conduct of elections. It could be argued that in order to do so, the Election Commission must have the power to determine whether an Election is needed in the first place. Where State and Federal Elections are concerned, this is established by the dissolution of the Assemblies and Parliament respectively. However, where casual vacancies (through death, resignations or disqualifications) arise, the situation is more nuanced.

The Perak Constitution (Article 36(5)) provides that a casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy. Vacancies caused by death and disqualifications are easily established. Where the latter is concerned, the matter is decided by the Assembly itself, which in law is taken to have final say (save where there is a matter of legal interpretation).

In the ordinary course resignations are similarly uncomplicated; the Speaker receives the letter of resignation and communicates the fact to the Election Commission which establishes the vacancy based on the Speaker’s declaration. From this, it is apparent that the vacancy is established by reference to the position taken by the Speaker. This is consistent with the basic principle of parliamentary democracy that it is the Speaker that regulates the assembly.

The question that arises is therefore whether this process is derailed by a dispute as to the validity of the resignation. In my view, it should not be, and the Election Commission must act accordingly. I say this for two main reasons. First, the scheme explained above.

Secondly, it is not for the Election Commission to embark on a fact-finding or adjudicative process as, amongst other things, it does not have the power to do so. In denying the position the Speaker has taken, the Election Commission is in effect asserting that that the Speaker is wrong. The Election Commission cannot do so. If there is a question as to the correctness of the Speaker’s position, then it must be challenged through proper channels.

Seen from this perspective, this unprecedented and very curious action of the Election Commission regrettably raises questions as to its motives. It must be taken to appreciate the precarious position it has left Perak in, one which looked upon objectively appears to have been made more accommodating to the machinations of the Barisan Nasional. I note that by-elections would be inconvenient for UMNO which is scheduled to have its assembly in March. It is as such open to question as to whether the Election Commission has conducted itself in the independent manner the Federal Constitution requires of it.

Where this leaves the Perak Government is an open question. It could seek a ruling of the Court as to the correctness of the decision made by the Election Commission and an order to compel the latter to conduct the by-election. This would be a time-consuming affair and occasion a delay that can only work against the interests of the State. The razor thin margin is undermining of stability and it is more probable than not the attention of those who make up the State government would be focused more on preserving their government than the affairs of the State.

The Election Commission’s stance and the underlying events would afford sufficient cause for the Menteri Besar to request that His Highness the Sultan dissolve the assembly and call for fresh elections. All things considered, this may be the best way to protect the interests of Perak. In these difficult times, governments should be focused on what needs to be done rather than politics.

(Malaysian Insider; 4th February 2009)

MIS

The Independence Of The Election Commission

The Election Commission is a constitutional body. It is established by the Constitution and given a specific mandate by the Constitution.

Article 113(1) provides 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."

Further to this, Article 113(2)(i) provides that

“..the Election Commission shall, from time to time, as they deem necessary, review the division of the Federation and the States into constituencies and recommend such changes therein as they may think necessary in order to comply with the provisions contained in the Thirteenth Schedule; and the reviews of constituencies for the purpose of elections to the Legislative Assemblies shall be undertaken at the same time as the reviews of constituencies for the purpose of elections to the House of Representatives.”

From these provisions it is manifest that the Election Commission is charged with the heavy responsibility of ensuring free and fair elections through the preparation of the Electoral Rolls and the delineation of constituencies.

That a key aspect of the Election Commission is its neutrality is, as such, self-evident. It is not answerable to the Executive nor to the Legislature. Its powers are not conferred by the Executive nor the Legislature. Its powers are conferred by the Constitution itself, there being no higher legal authority.

It is also self-evident that the effectiveness of the Election Commission is measured by the confidence of the Rakyat in the Election Commission. For the democratic process to succeed, it is vital that Malaysians believe that General Elections are free and fair. Public confidence is crucial. For this reason, the task of appointing the members of the Election Commission falls to the DYMM Yang Dipertuan Agong and the Conference of Rulers and NOT the Executive. Article 114(1) provides:

"The Election Commission shall be appointed by the Yang di-Pertuan Agong after consultation with the Conference of Rulers, and shall consist of a chairman, a deputy chairman and five other members."

It is significant that the Constitution does not require the Agong to act on, with or after considering the advice of the Executive. The only condition imposed by the Constitution is in Article 114(2) which provides that:

"In appointing members of the Election Commission the Yang di- Pertuan Agong shall have regard to the importance of securing an Election Commission which enjoys public confidence."

In further safeguarding the neutrality of the Election Commission, a Commissioner cannot be an undischarged bankrupt, cannot engage in any paid office or employment outside his/her duties of as a Commissioner, cannot be a member of either House of Parliament or of the Legislative Assembly of a State (A114(3)).

Further, under Article 114(4A), the Chairman of the Commission shall be disqualified from holding such office if after three months of his/her appointment to such office or at any time thereafter he is or becomes a member of any board of directors or board of management, or an officer of employee, or engages in the affairs or business, of any organization or body, whether corporate or otherwise, or of any commercial, industrial or other undertaking, whether or not he receives any remuneration, reward, profit or benefit from it.

These provisions are clearly aimed at ensuring impartiality towards the discharge of function by the Election Commission. These safeguards are complemented by a protection of the remuneration of Commissioners through a provision for the same by Federal Law and the charging of such payment upon the Consolidated Fund (A114(5)). Such remuneration cannot be altered to disadvantage after appointment (A114(6)).

The foregoing clearly puts paid to any suggestion that the law pertaining to the Election Commission was/is designed in a manner that made it subordinate to the Executive or the Legislature.

The only involvement of the Legislature is where terms of office other than remuneration, are concerned. These can be provided for by Federal Law (A114(5A)). Additionally, the rules that the Election Commission puts in place to discharge its function are subject to Federal Law (A113(5)). This involvement is limited and does not, and in any event cannot, justify the undermining of the independence and function of the Election Commission.

The Election Commission is intended to be as independent as the Judiciary and the other Constitutional bodies including the office of the Auditor General and the Attorney General. The constitutional scheme of safeguards is similar.

Any act on the part of the Executive to interfere with the independence of the Election Commission is an unconstitutional, and I would say an illegal, act.

MIS