Reflecting on the law by Shad Saleem Faruqi
What is the legal basis for a government that dissolves Parliament to remain in power during the run-up to the election? A convention has developed that the previous prime minister remains at the helm during the election period.
WHEN the Dewan Rakyat is dissolved to call our 12th general election, an interesting constitutional issue will wash up at our shores. The issue is: what is the legal basis for a government that dissolves parliament to remain in power during the run-up to the election?
Under Article 55(4) of the Constitution, the period between dissolution and the re-convening of the next Parliament can be up to 120 days.
Parliamentary government: In our system of parliamentary government as provided in Article 43(2), the Cabinet must be constituted from within Parliament. The Prime Minister must belong to the Dewan Rakyat.
Other ministers may come from either House. Under Article 43(3) the Cabinet is required to be collectively responsible to Parliament. Under Article 43(4) the premier must maintain the confidence of the elected chamber.
Obviously, these sterling rules of parliamentary government become inapplicable when the Dewan Rakyat goes into dissolution under Article 55(2). The outgoing government loses its parliamentary basis and, therefore, its democratic legitimacy to remain in power.
Except for a fleeting and indirect reference in Article 43(2) to the appointment of a Prime Minister from the last House of Representatives, the Constitution’s glittering generalities provide no clear guidance on the following issues:
> Once the Dewan Rakyat is dissolved, is the Yang di-Pertuan Agong required to make a formal appointment of a caretaker Prime Minister and Cabinet by virtue of Article 43(2)?
> Or is the outgoing Prime Minister entitled to continue in office? The law in Article 43(2) is sufficiently open-ended. One can envisage exceptional circumstances in which the Yang di-Pertuan Agong may appoint a new interim or provisional government to steer the ship of state during the electoral interlude. For example in Australia in 1975, on the dismissal of PM Gough Whitlam, Governor Sir John Kerr appointed Malcolm Fraser to hold the fort pending the electoral contest.
> What is the proper role of and what are the constraints upon the powers of the caretaker government?
> Is the Yang di-Petuan Agong bound by the advice of the caretaker Prime Minister during the interim between the dissolution of one Parliament and the convening of the next?
To my knowledge in most other parliamentary democracies (except Bangladesh) a convention has developed that the previous Prime Minister remains at the helm during the election period even if he is a contestant at the forthcoming election. He need not resign. A new cabinet need not be sworn in. The existing government assumes a caretaker’s mantle.
Innovation in Bangladesh : An exception is Bangladesh. In order to improve the fairness of the electoral process, the Constitution was amended in 1996 to insert a new Article 58 Clauses (B) to (E) to provide for an 11-member non-party caretaker government during the dissolution of Parliament.
A Chief Advisor with the status of a Prime Minister and ten other advisors appointed by the President on the advice of the Chief Advisor head the interim government. Besides attending to day to day administration, the government assists the Election Commission to hold polls impartially, fairly and peacefully.
During the 1996 and 2001 elections, commendable choices were made to appoint former Chief Justices as chief advisors of the interim government.
Constitutional conventions: A survey of constitutions in Britain, Australia, Canada, New Zealand, India, Ireland, Norway, Sweden, Netherlands and Germany indicates that the basic law is gloriously silent on who has the right to rule and subject to what constraints during the dissolution of Parliament.
Though no explicit legal restraints are imposed on an interim, caretaker government’s executive authority, some conventional restraints have evolved in most democratic societies. The nature of the restraints depends on whether the country has first past the post system or proportional representation.
In countries with proportional representation, tabulation of electoral results is painfully slow and it takes up to six months to swear-in the new government. In such countries an incumbent administration retains full legal authority to provide effective leadership until a new government is sworn in. But it is expected to show some restraints.
In Australia the Prime Minister’s Department has issued some clear guidelines.
A caretaker government should not take drastic initiatives. It should not implement unlegislated policy that may burden an incoming government. It should not enter into major contracts or undertakings. It should not make significant appointments.
It should not use the public services in a politically partisan way. It should refrain from using public funds, government positions, machinery and resources for partisan activities or publicity. If major decisions are needed it should adopt a bipartisan approach and consult the opposition.
It can make electoral promises; announce projects but cannot begin the process of creating the project until after it is elected.
Role of the Monarch: What if these unwritten, conventional and moral restraints are flouted? Can the Yang di-Pertuan Agong, the courts and the Election Commission Chairman apply some checks?
In Public Prosecutor v Mohd Amin Mohd Razali [2002], the High Court attributed wide discretion to the Yang Di-Pertuan Agong during the Dewan Rakyat’s dissolution. The learned judge opined that Article 40(1) that requires the Monarch to act on advice is not applicable if a caretaker government renders the advice during the dissolution of Parliament.
Most respectfully, the learned judge overstates the discretionary leeway of a constitutional monarch during times of dissolution. A constitutional monarch should normally act on advice unless the caretaker premier abuses his powers e.g. by trying to dismiss judges, making critical constitutional appointments, framing Emergency Ordinances or dissolving the Dewan Rakyat a second time because he has lost the election. In such circumstances the Monarch will be entitled to turn down the advice.
Role of the courts: If a caretaker government violates its conventional duty to act with restraint, can the courts issue the appropriate orders? Unfortunately, conventions do not have the status of laws. They are not hard and fast rules. They are the non-legal practices of the Constitution that are politically binding but are not judicially enforceable.
There is a definitive judgment on this issue in Government of Kelantan v Government of Malaya (1963) where it was argued that the federal government had a conventional duty to consult all states of the federation before converting Malaya into Malaysia. Thomson CJ held that the conventional duty, if any, was not enforceable in the courts.
However, the courts can and should play a more vigorous role than they have up to now when corrupt electoral practices are committed and a challenge is filed in the courts.
Likewise, the Election Commission can and should monitor practices that amount to election offences and assist the courts with evidence.
Ultimately, however, the Yang di-Pertuan Agong, the courts and the Election Commission cannot do much. It is the electorate that must make wise choices guided not by utility but by fidelity to the ideals that animated our document of destiny.
Dr Shad Saleem Faruqi is Professor of Law at the Faculty of Law, Universiti Teknologi Mara, Shah Alam
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