ARTICLE 113(1) of the federal constitution entrusts the Election Commission (EC) with the conduct of elections in the country, both at state and federal level. The conduct of elections is subject to the provisions of federal law.
Accordingly, the Election Act 1958 (Act 19) was passed to provide “for elections to the Dewan Rakyat and to the Legislative Assemblies of the States”.
Article 113(5) allows the EC, so far as may be necessary for the purposes of its constitutional functions, to make rules, “but any such rules shall have effect subject to the provisions of federal law”.
Section 16 of Part VI of Act 19, accordingly, empowers the EC to make “regulations for the conduct of elections to the Dewan Rakyat and the Legislative Assemblies, and for all matters incidental thereto”.
The regulations are currently contained in the Elections (Conduct of Elections) Regulations 1981 [PU(A) 386/1981].
Section 17 of Act 19 requires all regulations made under Part VI of Act 19 to be laid before the Dewan Rakyat as soon as possible after they are made. The Dewan Rakyat is empowered to annul any regulation by passing a resolution to that effect.
Not many regulations, which are subsidiary legislation, are laid before the Dewan Rakyat and therefore subject to annulment. Regulations 1981 are rare and special.
Now, Section 12(1) of Act 19 mandates the EC to issue writs to start off the conduct of an election – general or by-election.
The writs – called writs of election – must be addressed to the returning officer of each constituency for which a member is to be elected.
A writ, in layman terms, is a written command of a legal authority that orders a person to act or perform. A writ of election is therefore a command to the returning officer of a constituency to “cause election to be made according to law” of a member to serve in the constituency.
The command can be seen in Form 1, which is a writ of election.
Section 12(4) of Act 19 requires the returning officer, upon receipt of a writ of election, to proceed to hold an election in the prescribed manner.
Upon the issuance of a writ of election, Regulations 1981 comes into play.
Regulation 3(1) requires the EC to publish a notice in the gazette, which must specify the date or dates on which candidates for election are to be nominated – called nomination day – and the date or dates on which the poll will be taken in the event of a contest – called polling day.
The notice is in Form 2 or 2A, which is a notice to hold general election or by-election, respectively.
A contest is if on nomination day in any constituency, more than one candidate stands nominated for that constituency. In such a case, the returning officer must declare that a poll will be taken in accordance with Regulations 1981 – Regulation 11(1).
Now, if a contest has been declared for a constituency, and one of the candidates nominated dies before the polling day, the returning officer must inform the Secretary to the EC by endorsing the fact of the death on the reverse of the writ of election issued to him (see above) and returning the endorsed writ without delay.
Upon receipt of the returned writ endorsed with the fact of death of a candidate, the EC must countermand the notice in Form 2 or 2A that has been published in the gazette.
Countermand simply means revoke or cancel.
So, it is the notice, which specifies the polling day, that is cancelled. The writ of election, which is a command to hold the election (see above), remains in force.
The notice having been cancelled requires the EC to “appoint by notice published in the gazette a fresh date for the election and in such case all proceedings with reference to the election shall be commenced afresh, provided that no fresh nomination shall be necessary in the case of a qualified candidate who stood nominated at the time of the countermand (cancellation) of the poll” – Regulation 11(6).
This means there will be a fresh nomination day for a new candidate and a fresh polling day for the constituency. Regulation 3(1) requires nomination day to be not less than four days after the date of the publication of a notice in the gazette while polling day to be not less than 11 days after nomination day.
I beg to differ with Datuk Seri Azalina Othman Said, head of Barisan Nasional’s task force for democracy and law.
GE15 must be completed by December 9, which is 20 days after polling day on November 19.
All ears will be on the EC when it convenes an emergency meeting on November 18 to decide on the fresh dates for the Padang Serai constituency following the death of a candidate. – The Vibes, November 17, 2022
Hafiz Hassan reads The Vibes
