Election and Democracy; 20161007
Published by Best Brains Asia Publications
Relationship between Government and Political Parties in the Exercise of Democratic Elections under the Constitutional Framework in Malaysia Muhammad Fathi Yusof1 Research Fellow (Law and Constitution) Centre for Research of Fiqh Science and Technology (CFiRST) University of Technology Malaysia, Kuala Lumpur Malaysia [email protected] Before assessing the exercise of democratic elections, one must not forget the fundamental purpose of elections i.e. to form government which is derived from the will of people. The elections are a mechanism to channel the voice of people in a systematic and reliable way. On the whole, under the modern democratic election, the people vote in elections to choose government, either by electing their representatives to Parliament or by electing the executive head in a direct presidential election. Besides the need to have genuine electoral process in a healthy democratic atmosphere, the actual purpose of democratic elections can only be achieved if the elected person or body essentially has power on the state policy or on the formation of government the country. Therefore it is absolutely useless to examine the quality of a hollow election which offers no genuine choice in authoritarian systems. Formation of Government The elections in Malaysia is basically conducted to form parliamentary government led by the Prime Minister, who in the judgment of the Yang di-­‐
Pertuan Agong is likely to command the confidence of the majority of the members of the House of Representatives. Being a Westminster-­‐style legislature, the Malaysian Parliament consists of the lower house or the House of Representatives, the upper house or the Senate and the Constitutional Head of State i.e. Yang Di-­‐Pertuan Agong. The actual power to govern the state is in the hands of the Prime Minster and the Cabinet, which is collectively responsible to the government. The Yang Di-­‐Pertuan Agong, as well as the Rulers in the nine Malay states, has limited role as he generally must act on government’s advice and may not refuse assent to bills passed by Parliament. In spite of that, the constitutional monarchy including the constitutional special royal meeting 1
Centre for Research of Fiqh Science and Technology (CFiRST), University of Technology Malaysia,
Kuala Lumpur
1
Election and Democracy; 20161007
Published by Best Brains Asia Publications
known as the Conference of Rulers is significant not only as a unique traditional institution but also a functional body to assume ‘check and balance’ functions in the government. Though there are provisions in the Federal Constitution on the appointment of the Prime Minister,2 the process of forming the government as well as the basic framework of the exercise of executive power is also relied on the unwritten sources in the form of constitutional conventions, royal prerogative, discretionary and residual powers. The discretion of the Yang Di-­‐
Pertuan Agong in appointing the Prime Minister must be based on the requirement of art. 43(2) of the Federal Constitution. Since the Merdeka, the formation of the Federal government was conducted smoothly and immediately after all general elections. The Yang Di-­‐Pertuan Agong has never been confronted with any problem in appointing the Prime Minister, as he had to simply appoint the victorious coalition chairman to the post immediately after the result of general elections was announced. This is because the ruling coalition namely Perikatan or Barisan Nasional (BN) has always had a clear majority in the Parliament. In order to ensure that the government is derived from the will of people, the formation of the government must be adequately connected with the outcome of the elections. Under the Westminster model, the election is held to elect legislative members and it does not directly determine the head of executive, though the people generally cast their vote to choose the government. In exercising his discretion, the Yang Di-­‐Pertuan Agong is bound to wait for the official result of the general elections.3 Based on the convention, the EC is obliged to submit official result of the general elections to the Yang Di-­‐Pertuan Agong. Moreover, under the Regulations the EC is required to declare a political party as a winner when it acquired a majority which exceeds fifty percent of the total seats in the House of Representative.4 However, the Yang Di-­‐Pertuan Agong should not totally relies on the composition of political parties in the House of Representatives as stated in the official result declared by the EC. This is because it may not necessarily reflect the actual fact about the command of confidence in the House due to possible defections or formation of new coalition subsequent to the general elections. In some countries, there are requirement that necessitates House of Representative to convene for its first session after the general elections to conduct ‘a vote of confidence’. In other words, the confidence of the majority of the members must be formally signified by popular vote in the House, and not it depends on the wide discretion or prerogative of the Ruler. This process seems to be desirable in order to adequately relate the electoral process with the formation of the government and to offer more reliable solution in doubtful situation such as when there is hung Parliament or when the victorious party or coalition encounters internal crisis. 2 See art. 43 3 See Tun Datu Haji Mustapha Bin Datu Harun v Tun Datuk Haji Mohamed Adnan Robert, Yang Di-­‐
Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan (No 2) [1986] 2 MLJ 420 4 Regulation 25F of the Elections (Conduct of Elections) Regulations 1981. 2
Election and Democracy; 20161007
Published by Best Brains Asia Publications
It is plain that the fundamental requirement in determining the appointment of the Prime Minister is that the candidate must be a member of the House of Representative who in the judgment of the Yang Di-­‐Pertuan Agong is ‘likely to command the confidence of the majority of the members of that House’. As has been mentioned earlier, with the absence of a specific procedure in the appointment of the Prime Minister, the Yang Di-­‐Pertuan Agong is entitle to exercise his extensive and subjective discretion and his royal prerogative in order ascertain who command the confidence. Based on several precedents in the appointment of Menteri Besar or Chief Ministers at the state level, the Yang Di-­‐Pertuan Agong may request for pledge of loyalty, verbally or in writing, from the elected members5 particularly in the case when there are doubts on the actual support of members of the House. He also can conduct interviews and enquiries of the legislative members.6 In exercising this discretion the Yang Di-­‐Pertuan Agong shall not bound by representations made by any individuals or bodies, even the ones made by the victorious party leader. There is a case when the palace ignored the name proposed by the winning coalition chairman, as he believed that other member of the House of Representatives commands the confidence of the majority of its members.7 It is important to note that the Yang Di-­‐Pertuan Agong must exercise his discretion and prerogative judiciously for the interest of the public. The discretion and prerogative can only be invoked in certain situation as provided under the constitution.8 Moreover, it has been decided that the Yang Di-­‐Pertuan Agong must make judgment freely and independently, without any pressure or threat, and the court may declare the appointment made under duress as invalid.9 Furthermore, the discretion and prerogative of the Yang Di-­‐Pertuan Agong and Rulers are not absolute as they must strictly comply with the fundamental pre-­‐requisite stated in the respective constitutions and the appointment of unqualified leader shall be subject to a motion of no-­‐confidence in the Parliament or the State Legislative Assembly (SLA). The power of the legislative bodies to pass the motion of no-­‐confidence is very essential in democratic process in order to ensure that the wide discretion of the Yang Di-­‐
Pertuan Agong is always subject to ‘check and balance’. Obviously, when the Parliament or the SLA passes a motion of confidence or a motion of no-­‐
5 Such request has been made by the Yang di-­‐Pertuan Negeri of Sabah after the State Legislative Assembly general elections in 1994, and by the Sultan of Perak after the 2008 general elections. 6 See decision in Dato' Dr Zambry bin Abd Kadir v Dato' Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia, intervener) [2009] 5 MLJ 464 per Zainun Ali CJA at 514 7 For example, after the 2008 election the Sultan of Perlis had ignored the endorsement letter written by the Barisan Nasional Chairman and appointed other member who apparently commands the confidence of majority members of the State Legislative Assembly. 8 See Dato' Dr Zambry bin Abd Kadir v Dato' Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia, intervener) [2009] 5 MLJ 517; See also Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 at page 113 9 See Tun Datu Haji Mustapha Bin Datu Harun v Tun Datuk Haji Mohamed Adnan Robert, Yang Di-­‐
Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan (No 2) [1986] 2 MLJ 420 3
Election and Democracy; 20161007
Published by Best Brains Asia Publications
confidence, the resolution shall prevail over the ‘judgment’ made by the Yang Di-­‐
Pertuan Agong or Ruler.10 But there was a case after the 2008 general elections when the victorious party in the SLA of Terengganu refused to conduct a motion of no-­‐confidence against the Menteri Besar appointed by the palace although the party initially had proposed the former Menteri Besar who obviously commanded the confidence of the SLA members, to be appointed to the post. The refusal was probably prompted by the attempt to end confrontation with the palace and to avoid general elections at the state level. Be that as it may, one must not deny the fact that denying the right of the victorious party to form government is a violation to the fundamental principle of democracy and contrary to the very basic purpose of holding elections. Election and Responsible Government Apart from the purpose of establishing executive body, one must not neglect the fundamental role of election to elect the members of the Parliament specifically House of Representative. Although, it can be argued that the legislative body under Westminster model is less significant for it generally dominated by the same party that governs the state, the fundamental role of the Parliament as enshrined in the Constitution cannot be denied. The Malaysian Parliament is indeed the most important legislative institution in the country, although it is not supreme like the British Parliament.11 The legislative power of the Parliament is limited by the Constitution, but it generally may amend the Constitution by several different methods, with most of the provisions require the support of votes of not less than two-­‐third of the total number of Members of each House of Parliament. For the above reason, the outcome of the general elections has significant influence in giving practical and legal effect to the concept of constitutional supremacy, against the alleged practice of parliamentary supremacy in Malaysian. Being the supreme law of the Federation which embodies the basic framework of the government including the separation of power, protection of fundamental rights, federal arrangement etc, the Federal Constitution should have not been easily amended at the will of a ruling party or coalition. Therefore, if the ruling party or coalition failed to obtain the two-­‐third majority in the House of Representative, the government’s power will be subject to more powerful scrutiny as the government will not be able to amend most of the constitutional provisions except with cooperation from the opposition. 10 See for example Tun Datuk Haji Mohamed Adnan Robert v Tun Datu Haji Mustapha Bin Datu Harun; Datuk Joseph Pairin Kitingan v Tun Datu Haji Mustapha Bin Datu Harun [1987] 1 MLJ 471. The court commented that “It is true that, ultimately, it is the LA who has the power to decide who commands its confidence and hence who should continue to be Chief Minister…” per Tan Chiaw Thong J at 478. See also the significant of no-­‐confidence vote in legislature in Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sili [1966] 2 MLJ 187. However, see also Dato' Seri Ir Hj Mohammad Nizar bin Jamaluddin v Dato' Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener) [2010] 2 MLJ 285 in which the court distinguished that case from Stephen Kalong Ningkan. 11 See Ah Thian v Government of Malaysia [1976] 2 MLJ 112 4
Election and Democracy; 20161007
Published by Best Brains Asia Publications
Given the Parliament’s prominent function in debating the policy of government, controlling the government expenditure, and providing an effective forum for the ventilation of grievances or questioning mismanagement, one must not forget the role of opposition to secure responsible government and to promote democratic freedom of expression through the available democratic space. The Parliament gives important role for the opposition to check on the government actions for the public interest. Under the concept of ‘responsible government’, the role of opposition must be legally recognized and must be given priority in debating the government proposals.12 The opposition also must have adequate opportunity to obtain relevant information on the administration of the country. The member of legislature from opposition parties must also be appointed to important parliamentary committee including the audit committee to hold the Government accountable. In this respect, the electoral system in Malaysia does not ostensibly deprive the right of the citizens to have a stronger opposition and to be governed by a more accountable and responsible government. In the 2008 general elections, the people had in fact denied two-­‐third majority for the BN, for the first time after 50 years domination in the Parliament and government. However it is important to note that the probability to have a strong opposition in Malaysia electoral system which is based on the first-­‐past-­‐the-­‐post system is relatively small, as, by and large, it only possibly occurs when the ruling party wins the election by a very narrow margin of popular vote.13 Despite that, the first-­‐past-­‐the-­‐post design in the Malaysian electoral system is a remarkable factor in imposing direct accountability of legislators to those who elect them. The practice which greatly improves the degree of representativeness in democratic process can be also attributed to the absence of elections for the local government councils and to the fierce competition among political parties in Malaysia, which commonly have strong grass-­‐root organization. It has been even argued that the representative system had given too much emphasis on the representativeness at the expense of the basic role of the legislators as lawmakers. Be that as it may, the elections, on the whole, have fulfilled the important function of providing reliable and effective mechanism to elect representatives who may speak on behalf of the local citizens. 12 Among formal recognition of the opposition’s role is the statutory provision on the appointment of the Leader of Opposition. See Members of Parliament (Remuneration) Act 1980 (No. 237) 13 In the 2008 general elections, the BN got only 51.4% of the total vote, but it managed to win approximately 62% of the total seat in the House of Representatives. See Suruhanjaya Pilihanraya Malaysia, “Statistik Prilihanraya Umum Ke-­‐12, <http://www.spr.gov.my/index_files/galeri_infromasi/statistik/STATISTIKPRU12.pdf> 5
Election and Democracy; 20161007
Published by Best Brains Asia Publications
Party System Despite the significant role of political party in democratic electoral process, the constitutional and legal framework of election in Malaysia does not adequately support its development and the rights. Basically the election law in Malaysia is designed to support ‘the choice of candidate’ over ‘the choice of party’. This can be seen in the provisions of election statutes and regulations. In fact the Federal Constitution also does not grant specific right to form and join political party for the involvement in the political parties apparently merely rely on the general right to form associations.14 Moreover, the laws regarding the notification of election result15 and the use of symbol in ballot papers16 make reference to the candidate, and not to political party. The mode of appointment of the Prime Minister17 and the apportionment of the House of Representative18 also has no reference to the political party. The role of political party in electoral process can only be found in new provisions regarding the establishment of enforcement team.19 Moreover, the vital part of the involvement of political parties in the electoral contest i.e. their role as political platform for candidates can only be found in regulations made by the ECs.20 In spite of that, the role and involvement of the political parties in democratic process particularly through electoral competition is undeniably crucial and dynamic. The political parties not only have authority to choose candidates of election, but also determine appointment to the government political hierarchy in almost all level of authority, from federal ministers and state councilors to the village development committee. The parties in power also normally have strong influence in the appointment head of statutory bodies and government link companies. The political parties in Malaysia had a long historical setting in championing political struggle in early days. They therefore have strong footing in social structure and gains loyal support from relatively large number of people. Currently most of political parties have wide party network with strong and well-­‐organized grassroots. Their programmes are not confined to the matters relating to elections of politics, but cover various aspects of public interest such as community welfare, entrepreneurship and education. Therefore, it is crucial to have constitutional and legal recognition of the role of political parties. The basic rights of individuals to form and join political party and the right of political parties to participate in the election should be guaranteed by the constitution. The matters relating to the registration and 14 art. 10(1)(c) 15 Section 13 and of Election Act 1958 16 Section 16 (2)(bb) 17 art. 43(2) 18 art.s 45-­‐54 19 Part IVA of the Election Offences Act 1954.—Section 27F 20 The regulation allows candidate using party symbol in the election. See Regulation 11 (2). Other provision on political party is about declaration of a party that acquire majority to the Dewan Rakyat or State Legislative Assembly in the general elections (Regulation 25F of the Elections (Conduct of Elections) Regulations 1981) 6
Election and Democracy; 20161007
Published by Best Brains Asia Publications
supervision of political parties, as well as the control of party fund, donations and election expenditure must become under jurisdiction of the EC. Moreover, since the electors are arguably more influenced by party factors than candidate factors, it is necessary to review the election law to provide that the seat of a member of the House of Representatives or the State Legislative Assemblies belongs to his party if he contested using party platform. This move will rightly appreciate the role of political parties and may curb the practice of ‘floor-­‐
crossing’, which generally violates the will of the voters.21 With the enhanced role of the political parties, one must not neglect the importance of democratic process in the parties. The questions of party elections, membership qualifications, internal disciplinary rules and procedure, method of choosing candidates for general elections and so on, though seem to be internal in nature, have significant influence in the democratic process in the country. If the power to supervise the affairs of political parties is vested in the EC, the possibility of abuse of democratic process within the parties may be reduces, if not totally avoided. Undeniably, party system and party organisation is not only shaped by the social demographic setting and historical background, but also considerably influenced the constitutional and legal design as well as electoral system. The births of racial-­‐based parties is contributed mainly by the British’s ‘divide and rule’ policy, and the idea of forming coalition was derived from the need to win election by a winnable strategy in line with the first-­‐past-­‐the-­‐post system. Therefore, any reform to the electoral system and laws can only be conducted after taking account to their effect to the party organisation. At the same time the establishment healthy democratic practices such as two-­‐party system can be enhanced through constitutional and legal transformation. Hence, despite the shortcomings in the constitutional and legal structure, the role of political parties is so significant, as the mandate to govern the country is, in the main, given to the party or coalition, not to candidate individually. The role of political parties, in some cases, has extended too much until it encroaches on the function of the government. Separation Between Party and Government The need to separate between the political parties and the government which has been recognised internationally22 is very important in establishing equal opportunity to win in democratic elections. When a party wins in a general 21 There were moves to avoid ‘floor-­‐crossing’ through amendment of state constitutions in Kelantan and Sabah by providing that if a member of the State Legislative Assembly ceases to be a member of the political party for which he was elected, he vacate his seat in the Assembly. But the provision was held unconstitutional in Noordin Salleh v State Legislative Assembly, Kelantan [1993] 3 MLJ 344, as being contrary to the freedom of association. 22 See for example the United Nations Centre For Human Rights, Professional Training Series No.2 Human Rights and Elections: A Handbook on the Legal, Technical and Human Rights Aspects of Elections. UN doc HR/P/PT/2 (1994); The Inter-­‐Parliamentary Union, Inter-­‐Parliamentary Council (154th session). Declaration on Criteria for Free and Fair Elections (Paris, 26 March 1994); Conference on Security and Co-­‐operation in Europe, Document of the Copenhagen Meeting of the Conference on the Human Dimension: 29 June 1990: 29 I.L.M. 1305 (1990) 7
Election and Democracy; 20161007
Published by Best Brains Asia Publications
election, the power to govern is given to individuals who are appointed representing the party and obliged to exercise his authority within the limit set by the constitution and laws. They are prohibited from using their position for his personal or political interest. The political party generally has no right to interfere with the government authority and has no privilege of using public facilities and financial resources except through a transparent administrative process. This is because, the government has duty to fairly protect the interest of the people at large irrespective their political background. The separation of political party and government regrettably is not adequately implemented in Malaysia. The violation of this principle is apparently rampant and entrenched in the system of government, as it generally occurs in seven aspects i.e.; (a) through discriminative use of political authority by various level of authority, from the federal government to the village development committee; (b) through use of certain departments or agencies for political propaganda23 and intelligent;24 (c) through excessive use of government personnel for campaign purposes; (d) through the privilege to use the public facilities and resources as well as government statistics and intelligence findings, despite the denial of opposition’s right to use them; (e) through the misuse of government information machineries for political interest; (f) by making the appointment to certain post at local level and in government posts in the departments which have ‘political function’ subject to party approval or endorsement;25 and (g) by contravening the concept of caretaker government during general elections. These phenomena are products of long process of mixing the affairs of government with political interest of the ruling coalition which hold power in the country for considerably long period since independent. This circumstance has also strengthened the position of the ruling coalition and denies the right of opposition to contest in a level playing field. A free and fair democratic election can only be achieved if the above departments are abolished or give up serving as a political tool of the political coalition. The transparency and democracy at local level also must be introduced to replace political appointment in village committees. Besides that the law on corruption control needs to be reviewed to include precise provision on misuse of power for 23 For example Community Development Department (Kebajikan Masyarakat Malaysia-­‐KEMAS) under the Ministry of Rural and Regional Development and Special Affairs Department (Jabatan Hal Ehwal Khas-­‐ JASA), Ministry of Information, Communication and Culture, and Seranta Felda, under the Prime Minister’s Department. 24 For example National Security Council of the Prime Minister’s Department, Military Intelligent Department and Special Branch Department of Royal Police Force. 25 For example the appointment for Welfare and Development of Village Committee (JKKK), KEMAS, JASA and Seranta Felda, 8
Election and Democracy; 20161007
Published by Best Brains Asia Publications
political interest. And, one must not overlook the importance of the implementation of caretaker government concept to promote the separation of political parties and government. Role of Care-­‐taker Government Once the parliament is dissolved, the Prime Minister and Cabinet members are considered to have given up normal executive authority. This is because they cannot be held accountable to the Parliament for their decision in the normal manner. Therefore, they have to exercise their limited power cautiously as members of a caretaker government. In addition after the dissolution of Parliament, political parties normally concentrate on political campaign to court popular support. During this critical period, it is crucial to offer a level playing field for all political parties. It is obviously unfair for the opposition if the ruling party misuse government facilities, fund and public personnel for its political advantage. There are various concept and practice of the caretaker government. For the countries which use Parliamentary system, caretaker government is normally referred to the government that operates in interim period between the dissolution of parliament and the establishment of a new government. This concept which is fundamentally derived from Westminster tradition and the logic of parliamentary government26 has been steadily enforced in parliamentary democracies, particularly Australia and New Zealand, through the constitutional conventions.27 In Bangladesh the implementation of this concept exceptionally involves the termination of authority of the Prime Minister and his cabinet. The Bangladesh constitution28 established non-­‐party caretaker government headed by a retired Chief Justice, who holds a position called the Chief Advisor and adopts the role of Prime Minister after the dissolution of the Parliament. In Malaysia, there is no definite constitutional or legal provision on the ‘caretaker government’. The government, as well as the EC29 also seems to be reluctant to admit the operation of the principle. Although there was a case when the first Prime Minister resigned temporarily during campaign period of the 1959 general elections,30 in general, the position of the Prime Minister and his 26 The concept of caretaker role has been implemented in Australia since 1951. For more insight on this concept and its origin, see Anne Tiernan and Jennifer Menzies, Caretaker conventions in Australasia: Minding the shop for government, (The Australian National University: Australia, 2007) 27 See Department of the Prime Minister and Cabinet, Australian Government, (2010) Guidance on caretaker conventions, < www.dpmc.gov.au/guidelines/docs/caretaker_conventions.pdf> 28 Chapter 11A of the Bangladesh Constitution 29 See a letter dated 17th January 2008, written by the Datuk Kamaruzaman bin Mohd Noor, Secretary of the Election Commission to Lim Kit Siang, DAP Advisor, the content of the letter was quoted in Lim Kit Siang, EC violates National Integrity Plan in rejecting "caretaker government" concept, < blog.limkitsiang.com/wp-­‐content/plugins/as-­‐pdf/generate.php?post=94> 30 Tunku Abdul Rahman resigned as the Prime Minister from 21st April to 7 August 1959, to devote his time to campaigning for the Alliance Party in the first general election after independence. See Malaysian Department of Information (1963), Tunku Abdul Rahman Putra al-­‐
Haj : Prime Minister, Federation of Malaya on the occasion of his 60th birthday. 9
Election and Democracy; 20161007
Published by Best Brains Asia Publications
Cabinet was apparently unchanged after the dissolution of the Parliament. They, instead, have extensively misuse their government position for political gain during the period. The public also missed the chance to know the court’s viewpoint on this matter after the suit filed by an opposition leader 31 was withdrawn on the ground that it became academic because it did not fit the purpose of the concluded general elections.32 Nevertheless, this development does not imply that the concept of caretaker government is not applicable in Malaysia, as the periods of caretaker government indispensably occur in all Parliamentary democracies. The constitutional provisions which clearly establish the dependence of the executive positions on the existence of the Parliament33 indicate the application of the concept in Malaysia. The constitution also clearly provides that the Cabinet is accountable to the Parliament; 34 therefore the executive actions after the dissolution of Parliament must be subject to certain limitations. The provisions on the right to equality35 may also be invoked since both ruling party and opposition are must be treated equally by government departments, particularly during the campaign period following the dissolution of the Parliament. In addition, a Cabinet member who uses the government machineries for his political advantage in the general elections can be held liable under the anti-­‐
corruption law,36 for using his office or position for his political and personal interest. These constitutional and legal frameworks are among the evidence that support the concept of caretaker rule in Malaysia. It is however significant to introduce a new mechanism to strengthen the concept of caretaker government in order to secure free and fair elections in Malaysia. The rampant misuse of government machineries for the advantage of the ruling coalition, and the absence of clear separation between the ruling party and government should become the major issue to be considered when outlining the regulations during caretaker period. The EC should be given the authority to govern the regulations, and a special committee at national level modelled from the enforcement committee, involving legal experts and all political parties should be established to monitor the their implementation. The special regulations on the caretaker government should include the prohibition of making major policy decision, contract and significant appointment; ban of using government functions for political campaign; equality in the right to use public premises and in the coverage by government-­‐owned media; control against involvement of government officials in all activities that have partisan impact, including publicly promoting policies during the caretaker period; and 31 The then opposition leader, Lim Kit Siang had filed a suit against the Election Commission and the Government seeking a court order for the setting up of a caretaker government after the Parliament is dissolved. .The Star Online, February 5, 2008, “Kit Siang files for caretaker government,” <http://thestar.com.my/news/story.asp?file=/2008/2/5/nation/20235378&sec=nation> 32 The Star Online, 7 May, 2008, “High Court strikes out Kit Siang’s suit,” <http://thestar.com.my/news/story.asp?file=/2008/5/7/courts/21173304&sec=courts> 33 See art. 43, 43A and 43B 34 See art. 43 (3) 35 See art. 8 36 See for example Section 15(2) of the Anti-­‐Corruption Act 1997 (Act 575) 10
Election and Democracy; 20161007
Published by Best Brains Asia Publications
prohibition of using government agencies for political interest such as to obtain intelligent information. To conclude, the guideline on caretaker government is extremely significant to ensure the government is genuinely derived from will of the people through general elections are conducted in free and fair. Apart from the general elections for the House of Representative, there are also other types of elections that need to be examined. Now, we turn to the other types of elections in democratic process in Malaysia. Conclusion The Federal Constitution clearly provides the basic structure of electoral system and the democratic organisations connected to elections. The constitutional framework plays a vital role to establish the political institutions, to protect the rights of people and to confer duties on the government. The government and political design greatly influences the success democratic process as it determine the electoral system, frequency of election, the role of political parties, the accountability of the government. Based on the previous discussion, it is obvious that some aspects of the political framework such as the separation between party and government, and the role of caretaker government need radical reform in order to avoid misuse of public positions for political interests. References: Anne Tiernan and Jennifer Menzies (2007). Caretaker conventions in Australasia: Minding the shop for government, (The Australian National University: Australia) Conference on Security and Co-­‐operation in Europe, Document of the Copenhagen Meeting of the Conference on the Human Dimension: 29 June 1990: 29 I.L.M. 1305 (1990) Department of the Prime Minister and Cabinet, Australian Government, (2010) Guidance on caretaker conventions, < www.dpmc.gov.au/guidelines/docs/caretaker_conventions.pdf> Malaysian Department of Information (1963), Tunku Abdul Rahman Putra al-­‐
Haj: Prime Minister, Federation of Malaya on the occasion of his 60th birthday. Suruhanjaya Pilihanraya Malaysia, “Statistik Prilihanraya Umum Ke-­‐12, <http://www.spr.gov.my/index_files/galeri_infromasi/statistik/STATISTIKPRU
12.pdf> The Inter-­‐Parliamentary Union, Inter-­‐Parliamentary Council (154th session). Declaration on Criteria for Free and Fair Elections (Paris, 26 March 1994) 11
Election and Democracy; 20161007
Published by Best Brains Asia Publications
United Nations Centre For Human Rights, Professional Training Series No.2 Human Rights and Elections: A Handbook on the Legal, Technical and Human Rights Aspects of Elections. UN doc HR/P/PT/2 (1994); Notes: Copyright for this article is retained by the author. This is an open-­‐access self-­‐
publication article distributed under the terms and conditions of the Best Brains Asia Publications (BBA Publications). The articles can be downloaded or viewed from http://bbap.wordpress.com. The aim of BBA Publications is to promote knowledge sharing culture especially among young researchers and students. BBA Publications cordially welcomes any suggestion, comment and criticism in order to improve the quality of published articles or the publication activities. Our e-­‐mail is [email protected]. Tag: Election and Democracy Date: 07-­‐10-­‐2016 Published in: <http://bbap.wordpress.com> Best Brains Asia Publications (BBA Publications) Kuala Lumpur, Malaysia. 12