From the Selangor Times 27 July 2012. Ask Lord Bobo is a weekly column by LoyarBurok where all your profound, abstruse, erudite, hermetic, recondite, sagacious, and other thesaurus-described queries are answered!
Dear Lord Bobo, last week you said Parliament would automatically dissolve five years from the date of its first meeting, an election would have to be held 60 days after that, and Parliament must reconvene within 120 days of dissolution. But who would be the government of the country during that time? And who is supposed to conduct the election? What if the EC does not do its job? (Indelible Human, via email)
You’ve been paying attention! We are most gratified!
Hopefully it is not your intention to take over Malaysia in the event of any of the uncertainties you raised in your question coming into being.
Firstly, because our response is based on romantic concepts like “law” and “proper procedure” which can sometimes be ignored in reality.
And secondly, if any third party is going to take over Malaysia, it should surely be His Supreme Eminenceness.
Article 43 of Malaysia’s Federal Constitution says that the Yang DiPertuan Agong (“YDPA”) shall appoint a “Jemaah Menteri” or cabinet “to advise him on the exercise of his functions”.
This is because the Executive power of the Malaysian Federation is vested in the YDPA, although Article 40 provides that in most matters the YDPA must act on advice.
Article 43(2)(a) says that the YDPA shall first appoint a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House as the prime minister, who is to preside over the cabinet. Other members of that cabinet are then appointed on the advice of the prime minister.
How long that appointment lasts is not stated in the Federal Constitution, although it is stated that members of the cabinet other than the prime minister shall hold office during the pleasure of the YDPA, unless the appointment of any minister shall have been revoked by the YDPA on the advice of the prime minister, or the minister resigns.
So just because Parliament is dissolved, the cabinet is not necessarily dissolved. They are still meant to govern the country. That is one view.
There is another view which says that because cabinet members can only be chosen from either House of Parliament, once Parliament is dissolved, then logically cabinet automatically melts. But the YDPA must expressly appoint a “caretaker government” until the new Parliament is constituted as implied by the proviso to Article 43(2).
A caretaker government does not refer to the gardeners and night watchmen of Parliament taking over – it is supposed to be slightly more sophisticated than that.
We have not seen any official documents showing any appointments by the YDPA of caretaker governments, and arguably, we have had no such governments at every general election.
Lim Kit Siang has for years been filing cases in court to have caretaker governments properly appointed to be in charge of our affairs, but has failed.
Notwithstanding, constitutional conventions the world over dictate that during the time Parliament is dissolved until a new one is constituted, any caretaker government must not carry out any major policy changes or decisions that would have a lasting impact on the country’s foreign policy, domestic relations, or economic status.
There was once a case where a minister, after Parliament was dissolved, exercised powers to detain a person under the Emergency Ordinance, and some smart lawyers (obviously LoyarBurokkers, now housed at PusatRakyatLB) argued that the detention was unlawful.
The Federal Court however dismissed the argument, and was urged to write reasons for its decision but, unsurprisingly and completely out of character, did not. Hence, there is no clear judgment on the issue.
As to the EC “not doing its job” – how dare you question the EC’s integrity? They are working very hard to implement the Parliamentary Select Committee’s recommendations, mind you!
Of course they will do their duty. Just as they have done in all our elections, progressively giving shorter and shorter campaigning periods, creating constituencies that vary in size from the 7,000 or so in Putrajaya to the 77,000 or so in Seputeh, finally approving indelible ink to avoid voter fraud (after previously approving it and then unapproving it at the last minute) and most importantly, correcting the voter roll so that voters on Jalan 16/2, Section 16, Petaling Jaya, Selangor are registered in the Lembah Pantai constituency, Federal Territory of Kuala Lumpur.
Anyway, the judges ought to be the ones who make sure that the EC does its job.
And who ensures that the judges do their job? Well, no one, really. We suppose all of you will have to perform that unenviable task.
Good luck with that!
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