From security crisis to constitutional crisis?
Writer: Wong Chin Huat
Published: Fri, 08 Mar 2013
A FRIEND who goes frequently to Sabah’s east coast for diving, told me that the Sulu intrusion was unlikely to be limited to Lahad Datu and Semporna.
Since then, Sulu intruders were reportedly sighted in Lunak.
From Sandakan in the north to Tawau in the south, the entire Sabah west coast is vulnerable to a guerilla warfare from the sea, my friend cautioned me.
Now, this cannot be blamed on Sabah’s long eastern coastline – The Gulf of Mexico coastline is longer than ours but you don’t read about on-and-off armed intrusions as what has happened in Sabah.
In 1985, 15 armed foreigners landed in Lahad Datu and randomly killed 11 persons before taking away RM200,000.
The real problem is that our authorities did not guard Sabah’s coastline sufficiently.
In fact, as the internet joke goes, “foreigners are warned to not enter Sabah illegally or they will be given an IC”.
Afghanistan’s Taliban guerillas are widely believed to be trained and aided by the Pakistani military to fight the Soviet, with backing from the Americans and the others.
Today, Taliban militants are terrorising northwest Pakistan, especially Waziristan.
In that sense, Sabah is our Waziristan and Sulu our Taliban.
This may not be the time to find fault and apportion blame but it is important to understand certain scenarios as we prepare ourselves for yet another constitutional dilemma.
If the intrusion does not stop or spread to west coast towns like Kota Kinabalu and Kudat, do we just send in more troops?
Well, as the crisis enters its 24th day (March 5) and nothing seems to be really under control, its spread is probable.
Hence, we will eventually come back to the E word – Emergency.
If Emergency is proclaimed on Sabah by the King under Article 150 of the Federal Constitution, whom Constitutional expert Datuk Dr Shad Saleem Faruqi believes has to act according to the advice of the government, holding elections become untenable.
For the very least, voters will be the obvious soft target of the intruders.
The state elections can then be delayed indefinitely.
But what about the 25 parliamentary seats in Sabah?
Under Article 55(3) and (4) of the Federal Constitution, the 12th Parliament will stand dissolved by April 27, which is “five years from the date of its first meeting” in April 28, 2008, and elections “shall be held within 60 days from the date of dissolution”, which is June 26, 2013.
If Sabah’s emergency proclamation is not lifted by June 26, 2013, are we going to have federal elections for the rest of 197 parliamentary constituencies?
Constitutionally speaking, there is no provision for a partial re-election of parliament after its dissolution.
In 1969, elections for Sabah and Sarawak which were scheduled after the Peninsular polls were suspended after the post-May 13 Emergency Proclamation. Hence, when the elections were called in May 1969, it was meant to be for the entire house. Hence it is not a precedent for a partial general elections by intention.
Beyond the question of constitutionality, having elections for 197 seats is certainly politically untenable.
First, it would likely produce a hung parliament if neither Barisan Nasional or Pakatan Rakyat wins the minimal 112 seats to constitute a simple majority.
Secondly, even if a simple majority government can be formed, it will be one that excludes Sabah, which is politically illegitimate for Sabah, Borneo and Malaysia.
What are the ways out?
The existing solution is to extend the Emergency Proclamation to cover the entire Malaysia, hence delaying the national elections until it is lifted.
This will certainly fuel conspiracy theories that the current administration’s appeasement policy towards the Sulu intruders has allowed this to take place.
It will not only be deadly for the Barisan Nasional, which could face a devastating defeat like Mrs Indira Gandhi who ended her 25-month Emergency rule of India in 1977 but it will certainly hurt the economy tremendously.
What if an Emergency Proclamation in the whole or part of Sabah is really what it takes to restore the situation? Are we therefore dismissing such need for political consideration?
A solution would be to amend Article 55 so that either elections can be delayed after the dissolution of Parliament or that the Parliamentary term can be extended under extreme circumstances, without resorting to the use of Emergency Proclamation for the entire country.
This of course will need Pakatan Rakyat’s support as Barisan Nasional no longer has a two-thirds majority in the house.
In other words, if the Lahad Datu security crisis snowballs into a constitutional crisis, then we will need a national consensus and bipartisan cooperation.
In this sense, the BN’s move of accusing Datuk Seri Anwar Ibrahim and the opposition as the culprits for this crisis is a very unwise move that paints itself into a corner.