There should be consent of the governed for legitimacy and sovereignty!
By Joe Fernandez
(https://www.channelnewsasia.com/asia/johor-elections-bersama-muda-pakatan-harapan-vote-splitting-urban-youth-6237796 )
Commentary And Analysis . . . The media will bring in the votes for those who remain in the public eye.
(https://jesseltontimes.com/2026/06/29/malaysia-neglects-english-language-foundation-in-law/)
So be it.
That’s fact in democracy.
The law cannot command that the media remain impartial, but it can build an electoral architecture that’s resilient for the gales of sentiment, whether manufactured or otherwise.
A runoff, imposed, adds room for house otherwise built on sand.
A constitutional amendment, demanded by a people whose memory stretches across five-year cycles and whose demand for closure was satisfied duscretion, if not by law, fortifies the foundation.
The two-week memory was the surface; the submerging democratic endurance was the truth that reform has taken years.
The EC should, in good faith, do what it lawfully can: study, recommend, and report.
Parliament should, in good faith, debate.
The people should, in good faith, remember.
Veritas will not arrive in fortnight.
It will arrive when the law and the spirit are aligned through the only instrument that legitimacy knows: the constitutional will of a sovereign people, exercised not in a moment of media-driven fervour but in the patient, irreversible closure of reformed nation-state.t
The Election Commission has power under existing statute, under the imploration of good faith, for runoff election.
It’s true that the First Past the Post System was lex lata (law), but any change on the method of election does not require constitutional amendment under Article 159.
The consent of the governed was foundational political principle and justiciable test of governmental legitimacy.
However, government formed in accordance with the procedure laid down in the Constitution was legitimate, notwithstanding that it may suffer from political legitimacy deficit.
The cognitive model of a two-week public memory, media-driven agenda-setting, and the craving for closure rescues the runoff proposal; it reveals that the same media dynamics would operate in the inter-round period, converting the runoff into a closure device rather than an instrument of consent.
The demand for runoff was cry for democratic depth.
That cry was legitimate. It’s directed at a genuine wound. The medicine isn’t misprescribed although the lawful path was recommendation by the EC for Parliament, followed by constitutional amendment.
The people demand that the EC exercise discretion on runoff, form movements that refuse the two-week memory, that force the controversy of the electoral system into sustained public consciousness, and that demand closure before legislative action.
The streets, lawfully occupied under the Peaceful Assembly Act 2012, are the site of that demand; the courts, under Order 53, are the site where administrative inaction can be tested; Parliament, under Article 159, is the site where the law can be changed, but only if necessary.
Seen: EC, hold runoff. We demand consent. Our memory was short; give us closure.
Beneath: Articles 113, 116, 159, and the Thirteenth Schedule; the ultra vires doctrine; the distinction between political legitimacy and legal validity; the media sociology of agenda-setting, recency bias, and manufactured closure; the lawful pathways of EC recommendation, judicial review of irrationality, and constitutional amendment.
PARTIES IN DISPUTE
Whether the Election Commission possesses, under existing statute and the residual principle of good faith, power for conducting runoff election in constituencies where no candidate secures majority of the votes cast on a specified turnout threshold;
Whether the principle of the “consent of the governed,” as an unwritten constitutional norm or political ideal, can be given direct effect through the EC;
Whether it requires a formal constitutional amendment under Article 159 of the Federal Constitution;
Whether there are consequences if the EC held runoff without parliamentary authorisation,;
Whether the ultra vires doctrine, voidness ab initio, and the remedy of certiorari under Order 53 of the Rules of Court 2012;
Whether, even if possible, runoff election would cure the democratic deficit given the proposition’s model that (a) the media brings in votes for those remaining in the public eye, (b) human memory lapses after two weeks, (c) recall reduces for faces and names, and (d) closure, rather than informed deliberation, extinguishes controversy;
Whether the EC, acting bona fide and within its lawful powers, may instead discharge its duty by studying, recommending, and reporting on electoral reform for Parliament;
Whether failure do so was susceptible for judicial review for irrationality;
Whether the pathway for restore consent of the governed lies in constitutional amendment;
Whether there should be public movement that overcomes the two-week memory cycle; and
Whether there should be administrative re-engineering of the electoral system by the EC.
CHRONOLOGY
1957: Federal Constitution of Malaya adopted; the First Past the Post System prescribed by the Thirteenth Schedule, read with Article 116.
1958: Elections Act 1958 enacted, providing the procedural machinery for plurality elections.
1965: Local government elections suspended (a separate but related democratic deficit).
2020–2022: Multiple state elections produce governments that command a legislative majority on less than 51 per cent of the popular vote—most notably the Johor State Election of March 2022, where Barisan Nasional won 40 of 56 seats with approximately 43 per cent of the popular vote.
2026: The composite statement and linked article are published, asserting that the EC should hold a runoff under existing law and that governments formed without an absolute popular majority lack the consent of the governed; this jurist analysis follows.
STATUTES AND CONSTITUTION
Federal Constitution of Malaysia: Articles 4(1) (constitutional supremacy), 10(1)(b) (right to assemble peaceably), 43 (appointment of Menteri Besar/Chief Minister on confidence), 113 (conduct of elections by the EC), 114 (functions of the EC including examining and reporting), 116 (constituency representation), 159 (constitutional amendment), and the Thirteenth Schedule (the First Past the Post formula).
Elections Act 1958 (Act 19) – the principal procedural statute for the conduct of elections to the Dewan Rakyat and State Legislative Assemblies.
Election Offences Act 1954 (Act 5) – corrupt and illegal practices; election petitions.
Peaceful Assembly Act 2012 (Act 736) – regulation of public assemblies, relevant to the lawful exercise of street-level democratic pressure.
Evidence Act 1950 (Act 56): sections 60 (oral evidence must be direct), 101–103 (burden of proof, onus probandi), applied by analogy to the standard of proof required for legal and empirical assertions.
Rules of Court 2012, Order 53 – judicial review procedure, including the remedies of certiorari (to quash ultra vires decisions) and mandamus (to compel the performance of a public duty).
CASE LAWS
Attorney General v. Great Eastern Railway Co. (1880) 5 App Cas 473 – the doctrine of implied powers: a statutory body may do what is reasonably incidental to its express functions, but it cannot fundamentally alter the method prescribed by the parent statute.
Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ 187 – constitutional supremacy; the Federal Constitution is the supreme grundnorm, and any act inconsistent with it is void.
Subramaniam v. Public Prosecutor [1956] 1 WLR 965 – the rule against hearsay; unattributed assertions, however widely believed, carry no probative weight in a forensic inquiry.
PRINCIPLES AND MAXIMS
Onus probandi – the burden of proof rests on the party who asserts a fact or a legal power.
Ultra vires – beyond power; an act performed without legal authority, particularly by a public body, is void ab initio.
Ab initio – from the beginning; an ultra vires act is treated in law as if it never occurred.
Audi alteram partem – hear the other side; a procedural safeguard applicable to both judicial and administrative decision-making.
Bona fide / Mala fide – in good faith / in bad faith; good faith cannot extend the ambit of a statutory power, and bad faith may vitiate the exercise of discretion.
Certiorari – a judicial remedy to quash an unlawful decision of a public body.
Mandamus – a judicial remedy to compel the performance of a statutory duty.
Falsa demonstratio – a false description; a label that does not match legal reality.
Ipse dixit – a bare, unsupported assertion.
Correlatio non est causatio – correlation is not causation; the coincidence of minority governments and voter discontent does not, without more, prove a legal wrong.
Veritas – truth; in Hemingway’s iceberg, the submerged mass that gives the surface its weight.
Dharma – righteous duty; the constitutional and moral obligation of institutions and citizens.
Karma – the law of cause and effect operating through time; the consequences of ultra vires action or of sustained civic neglect.
Mauvaise foi – bad faith; the condition of an institution that consciously refrains from exercising its lawful duty.
AUTHORITIES
Hemingway, E. (1932). Death in the Afternoon. New York: Charles Scribner’s Sons. (The iceberg principle and the requirement that a text’s surface rest upon a hidden mass of primary fact and law.)
The composite electoral and political statement under review, together with the linked article from The Vibes.
The philosophical meditations on law, media, karma, and the GiGo principle as supplied.
Federal Constitution of Malaysia, annotated (current edition).
H.L.A. Hart, The Concept of Law, 3rd ed. (The distinction between the rule of recognition, legal validity, and moral legitimacy.)
Cross & Tapper on Evidence (13th ed., 2018) (The hearsay rule and the burden of proof.)
The Federalist Papers (selected numbers on the consent of the governed and the architecture of republics), referenced as the historical articulation of the political principle of consent that cannot be mechanically transmuted into a legal writ.
Double Claim
The proposition advances double claim:
first, that the Election Commission possesses, under existing statute and the residual well of good faith, the power for introduce runoff election whenever candidate fails on securing 51 per cent of the votes cast on 51 per cent voter turnout;
second, that the legitimacy of any government, and by extension the sovereignty it exercises, depends upon the consent of the governed measured through such an electoral threshold.
The claim was framed against backdrop of mediated public sphere in which, we are told, the media helps bring in the votes for those who remain in the public eye, human beings can forget anything after two weeks, all they can remember are names and the face that goes with it, nothing becomes an issue unless it is in the media, and where if an issue does not go away in two weeks, it becomes controversy that will not end unless there’s closure.
The jurist must therefore examine three distinct but interwoven questions.
First, can the EC hold runoff under the powers presently conferred upon it?
Second, does the political principle of the consent of the governed operate as test of legitimacy voiding government formed under the First Past the Post System?
Third, what do the cognitive dynamics of the mediated public square—the two-week memory, the tyranny of faces and names, the need for closure—tell us about the runoff demand?
The answer for each question requires the submerging of slogan into constitutional architecture, statutory construction, and the law of cause and effect. — TJT
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat, as jurist (legal scholar), on the nature of human relationships.
DISCLAIMER: The views expressed here are those of the author/contributor and do not necessarily represent the views of Jesselton Times.
