No need to amend Federal Constitution to delay Sarawak polls

James Masing – Picture from IPHRD.Net

AMID calls for Sarawak’s 12th state election due next year to be postponed by changing the Federal Constitution due to Malaysia’s continued battle with the Covid-19 pandemic, one of Sarawak’s deputy chief ministers and PKR MPs expressed their disagreement to such proposals.

For Sarawak, the five-year term of office expires in June 2021 with the Sarawak legislative assembly to be automatically dissolved by then, and with the existing law requiring the Sarawak state elections to be held by August 2021 following the dissolution. The Sarawak state election can also be called earlier.

When contacted, Sarawak deputy chief minister Tan Sri James Masing dismissed the need to postpone the Sarawak state election in the first place, saying that it could be held without repeating the “disaster” of the Sabah state election.

“There is no need to amend our Federal Constitution and state constitution, because there is no necessity to postpone PRN12 for Sarawak.

“We can have our PRN12 provided we follow strictly the SOPs provided by MoH and SDMC (Sarawak state disaster management committee). Enforcement must be very strictly adhered to. No exemption is allowed to anybody who breaches the CMCO SOP.

“Singapore, South Korea, New Zealand did it with no deadly consequences. Sabah election was a disaster! Why should we use political disaster as our example?” he told Malay Mail, referring to the upcoming 12th Sarawak state election by its Malay initials PRN12.

The Sabah state election in September has previously been cited by the federal government as one of the reasons contributing to the third wave of Covid-19 cases in the country, while the Health Ministry in a December 3 written parliamentary reply has also cited other reasons such as the entry of illegal immigrants, crowded detention facilities, pandemic fatigue, as well as mass screening in enhanced movement control order (EMCO) areas that contribute indirectly to higher number of cases recorded.

Masing, who is also the acting chairman of SDMC, provided examples of measures that can be put in place to ensure the Sarawak state election is carried out safely, including strict protection of residents in rural areas from outside visitors during the election campaign period.

“I suggest we empower community leaders, Tuai Rumah, village chiefs and Kapitan Cina to prevent visitors from visiting their longhouses, villages, settlements during the period between nomination and polling. During nomination and so-called campaign period, SDMC will ban gatherings of more than 10 people.

“The longhouses, villages and rural settlements have no medical equipment to do swab tests to find out that visitors are free of Covid-19. The best way is to ban visitors from coming in and no one allowed to go out during the period of campaign. Complete closure except for emergencies,” he said.

Masing, who is Baleh state assemblyman and also president of Parti Rakyat Sarawak (PRS), also addressed the question of visitors or politicians from other states during the Sarawak state elections, including Sarawakians living in Peninsular Malaysia and Sabah and who return home to campaign or vote.

“Yes. All travellers coming from outside of Sarawak will be quarantined not less than 14 days,” he said, confirming that Sarawakians, Sabahans and Peninsular Malaysians would all have to face such quarantine measures of 14 days or more if necessary if they enter Sarawak for the state election.

When Masing spoke to Malay Mail, the Sarawak state government already had a strict policy requiring both Sarawakians and non-Sarawakians entering the state to make a compulsory application for permission to enter the state with identification and supporting documents required, as well as a mandatory 14-day quarantine upon arrival at designated quarantine centres, along with Covid-19 testing twice on the second and 10th day.

The Health Ministry on December 13 announced that it would revise the mandatory quarantine period from 14 days to 10 days from December 14 onwards in line with current clinical scientific reports and similar moves by other countries, and also before the SDMC’s decision yesterday to similarly revise its mandatory quarantine period for those entering Sarawak in line with the Health Ministry’s decision.

In SDMC’s updated rules applicable from December 14 onwards, it is compulsory both Sarawakians and non-Sarawakians entering Sarawak to apply for permission of entry with related supporting documents, but with the mandatory quarantine to be 10 days at designated quarantine centres with swab tests on the second and eighth day, and with home quarantine after the 10th day until the 14th day to be imposed along with wristband-wearing.

PKR Julau MP Larry Sng (The Star Pic)

Emergency Declaration Available

Sarawak PKR chief Larry Sng said he does not support the proposal to make constitutional amendments to postpone the Sarawak state election, highlighting the available option of declaring a localised emergency.

“There are sufficient measures in place to delay an election without having to amend the constitution,” the Julau MP said.

With the current term of the Sarawak government expiring in June 2021 and state election due latest by August 2021, Sng said an emergency can be declared for Sarawak if the level of Covid-19 infections is still high by June 2021.

“If the pandemic is still a concern then, an emergency can be declared by the Agong for Sarawak to suspend elections until the situation improves,” he said.

However he said an emergency declaration for Sarawak should be made only if it is “absolutely necessary”, noting: “If medical experts determine then that the state can proceed with elections, then I don’t see why we should further delay the state elections.”

“Now that a vaccine is available by year end, I don’t foresee the state election being delayed past June 2021,” he also said.

Asked about the scenario of early Sarawak polls, Sng said it would be “highly irresponsible” for the Sarawak state government to dissolve the state legislative assembly before the term of office expires if the Covid-19 case numbers are still high, but at the same time said he does not think the Sarawak chief minister would make an “irrational decision to call an election prematurely” if the Covid-19 risks are still high.

Sivarasa – The Starpix

Permanent powers to postpone elections against democratic principles

PKR’s Sungai Buloh MP Sivarasa Rasiah objected to constitutional amendments to postpone the Sarawak state election, cautioning on the serious effect of such law changes while also expressing confidence that Sarawak state elections could go on safely.

“I think the wrong question is being posed. The correct question is whether given the Covid-19 numbers in Sarawak over the last few months, can an election be run with sufficient safeguards? I believe the answer to that question is yes,” he told Malay Mail when contacted.

Sivarasa said Malaysia does not need “permanent amendments” to the Federal Constitution to postpone elections, which he said would go completely against established democratic principles.

“I am not in favour at all of having a permanent situation in the constitution of giving an incumbent government the power to extend its stay past the constitutional limit,” he said.

“We cannot be using the issue of Covid-19 to justify amendments to the Constitution which will have an impact for generations to come. Giving permanent powers to postpone elections is a very serious matter.

“A short postponement which will violate constitutional time limits can be solved with a time-bound declaration of emergency,” he said, highlighting that New Zealand had postponed its original date for elections until the number of Covid-19 cases went down to an acceptable level.

Sivarasa said certain safeguards could be put in place for elections to be held, such as by reducing the size of public gatherings, controlling the campaign methods, and open mainstream media to provide fair access.

Tourism, Arts and Culture Minister Datuk Seri Nancy Shukri 

Changing the law to prepare for future crisis and emergencies

Batang Sadong MP Nancy Shukri, who is also vice-president of Sarawak ruling party Parti Pesaka Bumiputera Bersatu (PBB), however believed that the time is right for the Federal Constitution and the Sarawak state constitution to be changed to prepare an option to postpone elections, but reserved only for use in emergency and unprecedented situations.

“It’s timely for the federal and state government to amend with regard to election. The Covid-19 pandemic is such a great lesson to learn from and there may be other incidences that require election to be postponed from the time stipulated in the law.

“We have experienced such an unprecedented incident during the Sabah state election where the situation was uncontrollable although SOPs were well-written and prepared for all parties to comply with. Excitement prevailed.

“And, the only way out was to declare emergency by the King. This does not augur well for both the palace and the government. Hence it is timely for amendment of law to suit such unprecedented crisis or situation,” she told Malay Mail when contacted.

Nancy stressed that the proposed new option to postpone elections must only be used in emergency cases and for a “very valid and legitimate reason”, while also noting that this would enable elections to be postponed without having to involve the palace and without any party being alleged to “abuse” emergency laws for political reason.

“The law has to be a strict provision that would only be applied in an emergency situation,” said Nancy, who is also the tourism, arts and culture minister.

In sharing her views, Nancy said the creation of such an option as an alternative to resorting to emergency declarations should be seen as a long-term provision: “The law should cater for the future, not specifically to the 12th state general election only. We should think of any unforeseen circumstances that require an election to be postponed for critical reasons which can be of risk to the nation. We need to have a law to turn to.”

Currently, the Federal Constitution’s Eighth Schedule which covers provisions to be inserted in state constitutions, Section 9(3) provides for the automatic dissolution of state legislative assemblies five years from the date of its first sitting unless it is dissolved earlier, while Section 9(4) says that a general election shall be held within 60 days of the dissolution of a state legislative assembly.

The Sarawak state constitution’s Article 21(3) provides for the automatic dissolution of the Sarawak state legislative assembly five years from the date of its first sitting but also allows for early dissolution, while Article 21(4) states that a general election is to be held within 60 days of the dissolution of the Sarawak state legislative assembly.

On November 30, minister in charge of Parliament and law Datuk Takiyuddin Hassan told the Dewan Rakyat that the government “can consider when the time comes” to seek an emergency declaration from the Yang di-Pertuan Agong for Sarawak if the state legislative assembly is dissolved and a state election needs to be held.

He cited the Federal Constitution’s Article 150(1), which states that the Yang di-Pertuan Agong may issue a proclamation of emergency if he is satisfied that a grave emergency exists where the security, economic life or public order in Malaysia or any part of Malaysia is threatened.

At the same time, Takiyuddin also addressed Pontian MP Datuk Seri Ahmad Maslan’s query regarding the increase in the government’s budget allocation for the Election Commission from RM71 million for 2020 to RM200 million for 2021, noting: “As explanation, I wish to state that the allocation for 2021 is as preparation for courses, the handling of the process for the conducting of the 12th state elections for Sarawak, where the term will end in June 2021”.

Previously, Layar state assemblyman Gerald Rentap Jabu, who is also PBB Youth chief, had on November 9 proposed for the amendment of the Sarawak state constitution to extend the current Sarawak state legislative assembly’s term beyond five years to wait until it is safe to hold the state election.

Constitutional law expert Prof Shad Saleem Faruqi had in his November 19 column with newspaper The Star indicated that Section 9(3) of the Federal Constitution’s Eighth Schedule would have to be amended in order for Jabu’s proposal to be viable.

On November 24, the Advocates Association of Sarawak called for the federal government to table a Bill in Parliament to temporarily amend the Federal Constitution to allow an extension of the current Sarawak state legislative assembly’s five-year term in light of the Covid-19 pandemic, and said it would approach both the federal and Sarawak Attorney General’s Chambers to ensure the necessary safeguards to preserve democracy is in place for such an amendment.

This article first appeared in The Malay Mail