©The Malaysian Insider (Used by permission)
Reflecting On The Law by SHAD SALEEM FARUQI
A CITIZEN elected to the Dewan Rakyat is expected to serve Parliament for its full five–year term. But like the life it mirrors, politics is full of uncertainties. Vacancies may often occur as with the tragic death of the MPs from Sungai Besar and Kuala Kangsar in the helicopter crash in Sarawak.
By–elections: Sixty–nine times since the first meeting of Parliament in 1959, “casual vacancies” in the lower House have arisen and 66 of these necessitated by–elections.
Under Article 54(1) of the Federal Constitution, if a casual vacancy arises in the Dewan Rakyat it shall be filled within 60 days from the date on which it is established by the Election Commission that there is a vacancy.
To this rule there are two qualifications: first, if a casual vacancy arises at a date which is less than two years from the date on which Parliament’s five–year mandate is expiring under Article 55(3), no by–election needs to be held.
Previously, this period was six months but regrettably the Constitution was amended. The result is that an orphaned constituency can be without representation for up to two years!
A second qualification is that even if there is less than two years to go before a general election, but the Speaker of the Dewan Rakyat notifies the Election Commission that the numerical strength of the ruling party or coalition is being affected due to the vacancy in the Dewan Rakyat, then an election shall be held within 60 days.
A by–election is subject to all the electoral laws that apply to a general election. The main grounds that lead to a by–election are: death, resignation, disqualification, nullification of election result by the court and expulsion of an MP from the House.
Death: From the first Parliament (1959–64) to the thirteenth (2013 to present), 45 MPs have died in office. A look at the data indicates that 34 succumbed to illness; six died in road accidents, four died in plane or helicopter crashes; one was murdered.
Resignation: Under Article 51 a member may resign by writing to the Speaker. Since 1959, 17 MPs have vacated their posts due to personal reasons or scandals (for example Abdul Rahman Talib losing a civil case involving allegation of corruption against him). In Permatang Pauh in 2008, the incumbent resigned to make way for his spouse and party leader.
In the late 1980s dissidents within Umno resigned their seats to orchestrate by–elections to embarrass the party leader. The sequel was a constitutional amendment in 1990 to Article 48(6) that an MP resigning his seat is disqualified from contesting for the House for five years.
Forced resignations: Around the world, political parties have been quite ingenious in trying to manufacture resignations. In several Indian states, an Assemblyman who defects from his party or crosses the floor is required to vacate his seat and go back to the electorate in a forced by–election.
Kelantan and Sabah incorporated such a law into their Constitutions. But in Noordin Salleh v State Assembly of Kelantan (1993), the anti–hopping law was declared unconstitutional because it infringed a representative’s freedom of association under Article 10(1)(c).
In the past there was a nefarious political practice of requiring candidates selected on the party ticket to sign undated letters of resignation. In the event that the elected MP crosses the floor or falls foul of his party, the party leader may insert a date and submit the resignation letter to the Speaker!
In Datuk Ong Kee Hui v Sinyium Anak Mutit (1983) the Supreme Court declared that such a contractual arrangement was illegal and contrary to the constitutional scheme.
Disqualification: Under Articles 48, 49 and 52 a person is disqualified from contesting or can become disqualified after his election if he suffers from a number of disabilities: he is of unsound mind, is an undischarged bankrupt, holds an office of profit (a paid position in the public service) or has failed to lodge the statutory election expense return.
He is also disqualified if he has been convicted of a criminal offence and sentenced to one year’s imprisonment or a fine of RM2000 or more. Citizenship of another country, absence from the House from every sitting for six months, failing to take his seat within three months of the convening of Parliament and double membership of both the Dewan Rakyat and the Dewan Negara are the other grounds for disqualification.
In relation to disqualification, a contentious issue is whether a disqualification is automatic or whether a resolution of the House is needed. In Fan Yew Teng v Setiausaha Dewan Rakyat (1975) an MP had been convicted of sedition.
An order for a by–election was issued. The court held that the order was illegal. The disqualification was not automatic. Under Article 53, the decision of the House shall be taken and the decision shall be final.
This ruling was modified by a constitutional amendment to Article 48(4) that a disqualification on ground of criminal conviction takes effect automatically upon the expiry of 14 days from the date the appeal is disposed of or, if there is a petition of pardon, then after the petition is disposed of.
Judicial nullification: The declaration of results in a constituency is challengeable before the High Court. Such challenges rarely succeed but one can recall the Gua Musang result in favour of Semangat 46’s Tengku Razaleigh Hamzah being declared null and void on the ground of unauthorised voters.
Expulsion of MP: The House of Commons, as part of its parliamentary privilege, has the power to expel duly elected MPs. The power is undemocratic and is rarely exercised. In the last century there were three expulsions causing by elections to be held. In one case the expelled MP contested again and won!
In Malaysia sections 9 and 29 of the Houses of Parliament (Privileges and Powers) Act 1952 and the Standing Orders of each House empower Parliament to punish members or outsiders for contempt. Penalties include a reprimand, imprisonment not exceeding 60 days, fine not exceeding RM 1,000 and suspension. There is no mention of expulsion.
However, section 32 provides that the Houses of Parliament in Malaysia hold the same powers and privileges as are held by the House of Commons in the United Kingdom. There is therefore a possibility of expulsion and a forced by–election. MPs must take note!
Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.