Saturday, March 23, 2013

Legal issues on GE13 by Shad Saleem Faruqi - The STAR

Debate about the date of the impending general election continues to generate interesting issues of constitutional law.
THE public debate about the impending general election continues to elicit interesting issues of constitutional law.
Delay: Many who had predicted an early general election are exasperated at the “delay” and are critical of it. Constitutionally speaking, there is no delay. The Parliament elected on March 8, 2008 had its first meeting on April 28, 2008.
According to Article 55(3) of the Constitution, Parliament’s life expires five years after its first meeting. The five years will end on April 27.
A full-term parliament is rare but is perfectly legal and politically fairer than a premature, surprise dissolution.
A government that allows the elected assembly to live out its full five years must be commended and not condemned.
In some countries like the UK, the law has moved in the direction of fixed term parliaments.
Caretaker mode: As GE12 was held on March 8, 2008, some commentators are making the startling suggestion that on March 8, 2013, the Government exhausted its five-year political mandate and went into “caretaker mode” with diminished powers. This is a clever but legally incorrect view for four reasons.
First, under Article 55(3), the tenure of Parliament (and of the newly appointed government) commences from the date of Parliament’s first meeting and not from the date of the election.
Second, Article 55(4) allows a delay of 60 days between a parliamentary dissolution and an election, and 120 days between dissolution and the summoning of the new parliament.
This means that the maximum period between one election and the next and one parliament and the next is not five years but five years plus 120 days.
Third, a caretaker government is a government holding the fort in the interim period between the dissolution of Parliament and the appointment by the Yang di-Pertuan Agong of a Prime Minister and his Cabinet after a general election.

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