ARTICLE 113(1) of the Federal Constitution entrusts the Election Commission (EC) with the conduct of elections nationwide. This conduct is subject to the provisions of federal law.

Accordingly, the Election Act 1958 was passed to provide “for elections to the Dewan Rakyat and to the state assemblies”.

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”.

Part VI, section 16 of the act, accordingly, empowers the EC to make “regulations for the conduct of elections… 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 the act requires all regulations made under part VI 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. Elections (Conduct of Elections) Regulations 1981 is rare and special.

Now, section 12(1) of the act 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 the act requires the returning officer, upon receipt of a writ, to proceed to hold an election in the prescribed manner.

Upon the issuance of a writ, Elections (Conduct of Elections) 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 is nominated for that constituency.

In such a case, the returning officer must declare that a poll will be taken in accordance with Regulations 1981, reg 11(1).

Now, if a contest has been declared for a constituency, and one of the nominees dies before 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 and returning it without delay.

Upon receipt, the EC must cancel the notice in form 2 or 2A that has been published in the Gazette.

It is the notice, which specifies the polling day, that is cancelled. The writ, which is a command to hold the election, remains in force.

The EC is required 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” – reg 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 notice in the Gazette, while polling day to be not less than 11 days after nomination day.

This general election must be completed by December 9, which is 20 days after polling day.

All eyes will be on the EC when it convenes a special meeting tomorrow to decide on the fresh dates for the Padang Serai constituency, following the death of a candidate. – November 17, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.