Elections belong to the people; it’s their decision.
– Abraham Lincoln, 16th US President
An interesting question was raised concerning the principal issue of the applicability and application of federal law in the matter of “State elections”, and whether States in the Federation of Malaysia are bound by Article 113 Federal Constitution (FC) (Conduct of elections).
To compound the pivotal issue of regional (not State) sovereignty, supremacy and autonomy, we need to grapple with whether Sarawak is bound by federal law given the fact that Article VIII of the IGCR as incorporated into the Malaysia Act 1963 (MA63) grants Sarawak a defined and definite measure of non-interference in its affairs by federal fiat.
If the jury is still out with this unsettled issue, then it is fair to say that Article 113 FC is premature in its effort to bind Sarawak to federal law given the effect of Article 76 (1)(a) FC which appears to support Sarawak‘s autonomy given the latitude of Article VIII MA63.
Article 76(1)(a) FC unambiguously and unerringly states that Parliament (Dewan Rakyat) may make laws for Sarawak for the purpose of implementing any treaty agreement (read: MA63) or convention under international law affecting Malaysia.
But, what law has Parliament enacted to grant Sarawak the power to conduct its own elections? Conversely, what law has the DUN of Sarawak passed with the support of various FC provisions to conduct its elections without the intercession of the Election Commission?
The issue is broad, varied, seemingly confusing, somewhat ambiguous and fraught with constitutional blind spots. Most pundits, gurus and experts of constitutional law, some local, some regional, and some sitting in faraway lands pontificating away as to what’s right, wrong, expedient, practical, legal, or political offer, predictably, no clues, answers or solutions.
Article 113(4) is clear as to “State law” authorising the Election Commission to conduct elections. The immediate question is whether Sarawak has enacted a “State law” authorising elections in Sarawak to be conducted divorced from federal law? After all, the FC clears a path.
To find clarity to this question we need to examine Article 51(2)(d) of the Constitution of the State of Sarawak concerning indirect elections seen together with Article 94 of MA63 which unequivocally ousts the jurisdiction of Part VIII FC (Elections — Articles 113 to 120).
Section 17 of List IIIA (Supplement to Concurrent List for States of Sabah and Sarawak) stipulates “State law” supremacy concerning elections to the State Legislative Assembly. This may suggest that federal law should be consulted since it is in the Concurrent List, but how much federal intercession is necessary especially if it is an inconvenience?
To add confusion and scepticism to constitutional insult and injury, we have this pandemic to contend with as reports claim there were spikes in Covid-19 cases in Sabah during its recent state elections. Wisely, and courageously, Sarawak’s leaders took this issue head on to seek answers and solutions.
If Sarawak decides to delay its elections owing to a delay in providing a suitable vaccine to combat the virus, will the people of Sarawak suffer from the continuous presence of the present government? The answer is obvious.
Secondly, by delaying the state elections, what specific law has the present government breached given the unusual circumstances created by this pandemic? Public safety is a priority vis-à-vis any election.
Thirdly, Sarawak’s DUN has unbridled constitutional power to pass a law to extend the date of conducting elections in the event of a real danger posed to the public by threats to security or public health.
Fourthly, Sarawak has the inherent power to enact necessary laws to prevent defections and political amphibian activity if it is in the best interests of the voters given the doublespeak and fork-tongue interpretation of Article 19(1)(c) FC to justify party hopping as “freedom to form associations”.
Ultimately, the question is whether or not our leaders are courageous enough to remain behind the protections of existing laws which ought to protect them from unnecessary criticisms.
Obedience to just or unjust laws depend on the will of the government and the governed. Teddy Roosevelt in the early 1900s said: “No man is above the law and no man is below it: nor do we ask any man’s permission when we ask him to obey it.”
Henry David Thoreau in the late 1880s believed that “disobedience is the true foundations of liberty. The obedient must be slaves”.
Consequently, leadership is not about the next election, it’s about the next generation.The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
