Friday, February 06, 2009

Constitutional crisis in Perak

A constitutional crisis caused by the sultan

K Kabilan |
Malaysiakini Feb 6, 09 2:50pm

In what appears to be a unique situation, Perak by the end of today would have two menteris besar - Pakatan Rakyat’s Mohd Nizar Jamaluddin and Barisan Nasional’s Zambry Abd Kadir.

On one side, we have Mohd Nizar who is refusing to resign as requested by Sultan Azlan Shah. And on the other we have Zambry whom the sultan approved as BN seemed to have the majority of seats in the state assembly.

On the one hand, we have a MB who represents the majority in the state assembly as elected by the people in the last general election.

And on the other side, we will have a state head who becomes one by default as a result of defections.

sultan azlan and nizar jamaluddinMohd Nizar’s reasons to stick to his ground are quite valid. He is right in disputing the sultan’s request for him to step down as the new majority held by BN could seep away if the court rules in favour of the state speaker in declaring the three state seats vacant.

Never mind the court ruling – it may take some time to materialise. The least the sultan could have suggested was for a vote of confidence taken at the assembly before he asked Mohd Nizar to resign to give power to the BN.

However, the sultan was quite adamant on what he wanted – for Mohd Nizar to step down immediately and a few hours later he agreed to the appointment of Zambry as the new menteri besar.

He totally overruled Mohd Nizar’s repeated request for the dissolution of the state assembly, which would pave the way for fresh state elections.

And by doing what he has done, the sultan who was a former lord president and an eminent reader of the law had caused a constitutional crisis in the state of Perak.

In defence of the sultan

lim kit siang 201108DAP leader Lim Kit Siang put it rightly when he said that Mohd Nizar was still the legitimate menteri besar until he has been voted out by a "no confidence" motion in the state assembly.

“Until such time, there is no vacancy in the post of Perak menteri besar,” he said in his statement today.

In the defence of the sultan, it can be said that he read the state constitution rightly and literally in asking for the resignation of Mohd Nizar.

The sultan, rightly or wrongly, must have been convinced of what state Umno/BN leader Najib Abdul Razak told him during a meeting yesterday morning – that BN enjoyed the majority support in the state assembly.

najib pc on bn takeover of perak state with 4 aduns 050209The sultan also individually questioned the four defectors – of which three are independents and one had returned to Umno – of their support for the BN government.

He also got an undertaking from them that they will continue to support the new BN government.

And with that, the sultan decided that Mohd Nizar does not have the majority support of the assembly which the BN enjoyed now, and that there was no need to dissolve the assembly as he can ask the Pakatan government to step down and hand power over to the BN.

These are all fair and right as far as the sultan’s reading of the state constitution, especially the important Article 16(6) of the constitution.

And many legal experts will also agree with the sultan’s reading of the constitution, never mind the fact that the status of the three independents are still under dispute.

However, it must be said that while the sultan had used his legal mind to the matter, he had failed in thinking as the ruler of his subjects.

There are at least three factors that the sultan seemed to have missed in making his decision to hand over power to BN.

Is this what the rakyat want?

Firstly, the people’s wishes. During the last general election, they overwhelmingly voted for Pakatan Rakyat, giving the alliance the sufficient numbers to stake a majority in the state assembly.

The sultan has now reversed that by booting out that people-elected government and handed over the power to a coalition which failed to secure the sufficient numbers.

Even the victories of at least two of the three independents – both first time state assemblypersons - can be confidently said to be due to their party and not their personalities.

Thus, the best thing the sultan could have done was to send the matter back to the rakyat so that they can decide who they want to be in the state government.

“He is the guardian of his people. He must listen to their wishes. He cannot make a decision which the majority of his subjects do no approve,” said constitutional expert professor Abdul Aziz Bari.

“If we thought a constitutional crisis was looming yesterday, well it is with us today. Perak is facing a constitutional crisis and it is caused by its own sultan,” he added.

Abdul Aziz has a valid point. The sultan just needed to look at the various blogs, SMSes or even his own official website to get a glimpse of his rakyat’s thinking on the matter. He need not have to venture far out of his palace to determine the feeling of the people.

Can he stop further defections?

Secondly, the moral issue of letting a state government be formed with the aid of defectors, especially when some of them are scandal-tainted.

najib meet with sultan perak pc 050209 02The sultan could have advised BN to seek by-elections for the seats of the four defectors from Pakatan. He could have done this at the meeting with Najib. However, it is almost certain that BN would not have agreed to this as the outcome would not have been favourable at all.

Likewise, the four defectors themselves would not have agreed, simply because they could have been barred from contesting since they had resigned to allow the by-elections.

The sultan is learnt to have grilled the four defectors on the loyalty to the BN government. He had also sought and gained oral and written undertakings from them that they would not rock the new government.

But what’s the use of these undertakings. The sultan similarly took such undertakings from all Pakatan representatives last March before they could form the government and yet there were defections.

For all it matters, such undertakings are worthless. There is nothing to stop further defections from BN to Pakatan and the sultan would have to undergo the whole process all over again.

Given such circumstances, the sultan could have taken the best option out by dissolving the state assembly to call for a fresh mandate from the people.

What about his own convictions?

And finally, the sultan seemed to have forgotten his own convictions in such matters.

Flashback to 2004 – in his book, Constitutional Monarchy, Rule of Law and Good Governance, the sultan wrote:

"Under normal circumstances, it is taken for granted that the Yang di-Pertuan Agong would not withhold his consent to a request for dissolution of parliament. His role is purely formal."

He also added that no sultan or agung had withheld consent to dissolve legislative body, except in Kelantan in 1977.

“With his decision now, it looks like what he wrote was just rhetoric...without any convictions,” added Abdul Aziz.

The decision of the sultan to deny Mohd Nizar’s request for the dissolution also indicated that the sultan had seemingly subjected himself to a higher political power play.

And coming in his 25th year as the state ruler – celebrations were held on Tuesday – the decision by the sultan in handing over powers to the BN government without his subjects having any say is very disappointing to say the least.

To put in bluntly, the decision of the sultan – who is the custodian of the people, their protector and someone who is suppose to act for the people – had just killed any semblance of democracy in the Perak.

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