Past midnight, NS will have a caretaker gov't

COMMENT In our federal system of government, the general election has to be held every five years for Parliament and the 13 state legislative assemblies. There is no constitutional reason why the general election for the 14 legislatures must be held at the same time.

Indeed, since Merdeka, there have been instances when national and state elections were held at different times. Even in 2013, no state election needs to be held in Sarawak because that state had its last one in 2011, which would take the term of its legislature to 2016.

However, because of the centralisation of power in Putrajaya and its control over the Election Commission (EC), the political reality is that the BN federal government decides when the national election will be held this year.

The EC, as the BN government's mouthpiece, has already announced that elections to Parliament and all state assemblies (except Sarawak) would be held on the same day. For practical purposes, this means the four Pakatan governments of Kelantan, Kedah, Penang and Selangor have absolutely no say on the fixing of the dates of their state elections.

It does not follow from the fact that the 12 states that have to go to the election in the coming weeks are powerless under the federal constitution because they cannot decide on the date of their elections.

The fixing of the date must be contrasted with the earlier or prior decision of the menteri besar/chief minister of each of the 12 states to advise his Malay ruler or governor (Yang di-Pertua Negeri) to dissolve the state assembly before the expiry of its five-year term.

This is a decision of great constitutional significance, and it is disappointing, from the perspective of the constitution, that the Negri Sembilan menteri besar did not advise the Yang di-Pertuan Besar to dissolve the state legislature.

Instead, Article 56(4) of the Second Part of the Negri Sembilan constitution goes into effect today, and the assembly will automatically be dissolved at midnight. Historians would have to advise whether this is the first occasion that this has happened in Malaysia.

Our parliamentary democracy is established on the basis that a government elected at the general election is a government responsible to the legislature, and one of the prerogatives of the leader of such a government is to advise his constitutional monarch to dissolve the legislature before the automatic dissolution clause is triggered.

One hopes that the other 11 state governments will not follow the Negeri Sembilan precedent and allow automatic dissolution to occur. Rather, each of them should exercise their privilege and immediately advise on dissolution.
The significance is this: a conscious and deliberate decision of the state executive, as contemplated in the Westminister system, is far more preferable than automatic dissolution, which sends the unmistakable signal that the government is frightened to meet the electorate on a date of its choosing.

A gov't with minimum powers

The EC has already announced that general election for all the legislatures (save Sarawak) must be held before May 27, 2013. It has also declared that past midnight today, the Negri Sembilan government will be a caretaker government.

The binding effect of decisions and contracts made by a caretaker government in the Westminister system must be contrasted with that of a normal government.

Much learning on the nature of caretaker governments is freely available online: a sample can be found at the end of this article. The EC should publicly announce at once the do's and don'ts of what the Negri Sembilan government can do in the next 60 days.

Some plain and basic illustrations will help. The Negri government can continue to pay its civil servants and honour contracts entered into before March 27, 2013. Thus, if the Negri government had entered into a tenancy agreement in 2012 with a private sector party to rent the latter's office block in Seremban, that agreement is valid and the state must pay the rentals to the landlord for the next two months.

However what the Negeri government cannot do is to enter into new contracts, transactions or deals in the next 60 days. If a third party is reckless to execute such a contract, it does so at its peril. And if the people of Negri elect a Pakatan state government, it is entitled, in the public interest, to terminate such a contract.

This is the public law that is equivalent to the inability of an agent to bind its principal in certain circumstances that one finds in private law, such as that of directors committing their company to a contract when the company is facing winding-up.

As the name suggests, a caretaker government is just taking care of the state by virtue of the doctrine of necessity. Every state must at all times have a government, and the Negri government becomes a government with minimum powers.

The essence of the concept of a caretaker government is to equalise the positions of the ruling party and the opposition in the lead-up to the election. The objective is to have a level-playing field in order to promote fair elections. It will always be temporary in nature, that is, only until May 27, 2013.

When campaigning for votes, the Negri state government (and all the other governments in the coming weeks) should not be using public property, such as helicopters, motor vehicles and government halls, which belong to the people because they are paid for with taxpayers' funds.

Because the opposition cannot use such public property, neither can the ruling government. A clear demarcation between government work and party work must be applied.
Likewise, access to the mass media. Equal time and access must be given to both coalitions since the mass media (state-owned TV and radio) are funded with taxpayers' money.

The BN has been treating Angkasapuri as its private property: it is not, and must be shared with the opposition coalition in the next two months. One need not multiply examples to make this point.

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TOMMY THOMAS specialises in constitutional law.
UNITED KINGDOM

General Election Guidance (2010) Cabinet Office, United Kingdom.

The Cabinet Manual - Draft (2010) Cabinet Office, United Kingdom.

AUSTRALIA

Guidance on the Caretaker Conventions (2010) Department of the Prime Minister and Cabinet, Australia.

Guidelines on the Caretaker Conventions, Premier and Cabinet, State Government of Victoria, Australia.

'Caretaker' Conventions and other Pre-Election Practices (2010) Premier and Cabinet, Government of New South Wales, Australia.

Guidance on Caretaker Conventions (2012) Government of Australian Capital Territory, Australia.

CANADA
Guidelines on the conduct of Ministers, Secretaries of State, Exempt Staff and Public Servants during an Election (2008) Privy Council Office, Canada.