LETTERS: Questions are being asked about whether, despite the emergency, Sarawak can walk alone to hold its State election?
The answer is that it can but only if the Yang di-Pertuan Agong so permits.
Under Article 4(1), the Federal Constitution is the supreme law of the Federation. Though all States have their own Constitutions, all State Constitutions are subordinate to the Federal Constitution in a state of emergency.
During a state of emergency under Article 150(1), most provisions of the Federal Constitution and the State Constitutions can be suspended if an emergency law so declares.
However, the suspension is not automatic and must be explicitly provided for in an emergency law.
On January 11, 2021 the Yang di-Pertuan Agong proclaimed a national emergency. Subsequently, on January 14, 2021 His Majesty promulgated the Emergency (Essential Powers) Ordinance 2021 (E.0. 2021).
This Ordinance has many significant consequences effects for the Sarawak State Government, the Sarawak State Assembly and the 5-yearly State elections due under the Sarawak State Constitution and the Eighth Schedule of the Federal Constitution.
Under section 11(b) of the E.O. 2021, the Ketua Menteri and the State Cabinet existing immediately prior to the issuance of the proclamation of emergency shall remain in office and continue to exercise their executive authority.
Under the Sarawak State Constitution the five-year term of the State Assembly is coming to an end and state elections must therefore be called within 60 days of the dissolution of the State Assembly.
However, due to the E.O. 2021, these provisions of the Sarawak State Constitution are suspended.
Under section 15(2) of the E.O. 2021, for so long as the emergency is in force, the State Assembly is suspended. Under section 15(1) of the E.O. 2021, the provisions relating to the summoning, prorogation and dissolution of the State Assembly shall not have any effect.
This means that during the emergency the suspended State Assembly cannot be dissolved except in accordance with the E.O. 2021.
Under section 15(1)(b), the power to summon, prorogue or dissolve the State Assembly is transferred from the State Governor to the Yang di-Pertuan Agong who acts on the advice of the PM.
The five-year time limit in the Sarawak Constitution is not applicable during the emergency.
Under section 13 of the Emergency Ordinance 2021, it is provided that for so long as the emergency is in force the provisions relating to an election in the States shall have no effect.
This means that the 5-year rule for the Assembly and the 60-day rule for the election after the Assembly is dissolved do not apply.
However, section 13(b) provides an exception: any election to the State Legislative Assembly shall be held on such date as the Yang di-Pertuan Agong thinks appropriate after consultation with the State Governor.
It is noteworthy that 'consultation' does not mean 'consent' and the advice of the State Government is not binding on His Majesty, the King.
If under section 13(b) of the E.O. the Yang di-Pertuan Agong dissolves the State Assembly and fixes the date of the election, what is the effect of thedissolution on the State Government?
The E.O. is not clear on the point. One view is that during the election period, the CM remains at the helm in a caretaker capacity. This is also in line with section 11(b) of the E.O. 2021 which says that the CM stays in office "for as long as the emergency is in force.
The other view is that once elections are called by the King under section 13 of the E.O., sections 11(b) and section 15 of the E.O. cease to apply.
The Sarawak Constitution takes over. The Governor reassumes the constitutional power to appoint a new MB and Cabinet after the elections results are announced and to summon the new Assembly back to session.
A third view is that once elections are called by the King under section 13 of the E.O., the King has to promulgate a new Ordinance to suspend sections 11(b) and 15 of the E.O. of Jan 14, 2021 in order to authorise the Governor to appoint a new CM and Cabinet and to summon the newly elected Assembly.
In sum, the existing national emergency has the following consequences:
The State Chief Minister and cabinet continue to remain in office as long as there is an emergency.
The State Assembly is suspended but remains in existence even after the 5-year time limit.
Rules about dissolution after five years do not apply. A State election cannot be called unless the Yang di-Pertuan Agong permits it.
The State CM can make such a request to the King but the King is not bound by his advice. In accordance with Articles 40(1) and 40(1A), the Yang di-Pertuan Agong acts on the advice of the federal Prime Minister.
Amendments will be needed to the E.O. of Jan 14, 2021 to facilitate the appointment of a new Government after the election and to summon the new Assembly.
Prof Emeritus Datuk Dr Shad Saleem Faruqi
University of Malaya
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times