Treading the Dark Alley of a Constitutional Crisis?

ARCHIVES 2009

By MT Webmaster On Feb 8, 2009

The EC has acted unconstitutionally and beyond her jurisdiction when refusing to recognize the decision of the Perak Speaker, V. Sivakumar on the vacancy of the Changkat Jering, Behrang and later Jelapang state assembly seats and for fresh by-elections to be held.

Dr Dzulkefly Ahmad

Is there such a thing as a constitutional crime or a constitutional scandal or plainly a constitutional error? Not trained legally, I could only surmise that there must be such a thing. Why? Well, whatever be of the reasons; a crime, scandal or error, the outcome is the regrettably the same. A constitutional crisis or impasse! Yes, it may have dire consequences too, the like of what we are now witnessing in Perak; instability and animosity, the antithesis of the spirit and objective of having the constitution in the first place.

Yes, Perak has now two Menteri Besar and comes with it, 2 state governments. Whoever is or are responsible for creating this acrimonious impasse, surely has committed an error, perhaps a genuine one. To err is only human. If it is well contrived and strategically executed, with all its evil or sinister intention, it could very well tantamount to a scandal or a crime, in layman’s term.

Be that as it may, it is totally counter-productive to be engaged in a blame-game. So it is not about apportioning blame that this piece is put together. Rather, it is an attempt at providing alternative perspectives to what really happened, that is now turning into a ‘water-shed’ in the nation political history, reminiscent of the case of the sacking of Stephen Kalong Ningkan of the state Assembly of Sarawak in 1966.

If you are thinking that I’m about to place all blame on the Sultan of Perak you clearly have misread me. Let’s first recall the act of the action of the Election Commission (EC). The EC could very well have averted and forestalled the whole episode of a looming crisis.

As rightly observed by the former EC’s, Tan Sri Rashid Rahman, the Election Commission’s constitutional duty is to act on the Perak Speaker’s official notification on the vacancy of the state assembly seats and to call for by-elections to be held in the next 60 days.

It is surely not the business of the Election Commission to usurp the jurisdiction of the courts to adjudicate on the Speaker’s decision to declare the three state seats as vacant. Any legal challenge should come from them if they wish to challenge the legality of their resignations.

In this case, the Election Commission has even acted as a court of law – in a decision that is clearly influenced by the political interests and considerations of the Barisan Nasional. Thanks to the first great disservice of the newly elected Chairman.

As the court ruling may take time to materialize, while the crisis fermenting further, it was then in the hand of the Ruler of Perak to have exercise his judicial acumen to thwart all possibility of an impasse. As a former Lord President and an eminent astute legal personality who had books on law to his credentials, all hope were naturally on the Sultan Azlan Shah as the custodian and savior of the rakyat and the state constitution.

But alas, revisiting his judgment makes one really wonder what has really gone very wrong with this great legal mind.

That Pakatan’s MB Ir. Nizar’s request for the dissolution of a parliament was for the best interest of the rakyat is arguably open to debate. It may serve the Pakatan ‘s interest but would BN dare face another round of humiliation in an electoral defeat for the fourth time in one year? But no one could really vouch or swear as to the outcome of the by-elections. The Pakatan were willing to stake it all but not Umno/BN.

But bottom-line, in an impasse or deadlock such as this, the real stakeholder of democracy, i.e. the Rakyat, would surely be the ‘Best Judge’ to adjudicate the dispute between claims of the Pakatan versus that of the BN. Could anyone possibly dispute that? No! That would be the most democratic option to take ie to return the mandate to the voters of Perak, in a state-wide election to elect a new state government of their choice.

Not willing to fulfill the request of the MB Nizar, His Highness has in fact contradicted the position he preached and wrote way back in the 2004, in a book called ‘Constitutional Monarchy, Rule of Law and Good Governance’.

"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 in fact added that no Sultan or Agong had withheld consent to dissolve legislative body, except in Kelantan in 1977.

At this juncture, it would also be pertinent to remind ourselves that the State Constitution clearly provides for such proviso. Article 16.6 clearly stipulates that:

“If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council”. He now is clearly requesting the dissolution of the Legislative Assembly.

The Sultan on having refused the dissolution of the state assembly could have alternatively summoned for a state assembly proceeding as also provided for by the state constitution. He could have suggested for a vote of (or no) confidence be taken at the special assembly before he could ask MB Nizar to resign and hand over power to BN.

Interestingly enough, Article 16.7 reads as follows:

“Subject to paragraph (16.6) a member of the Executive Council other than the Menteri Besar shall hold office at His Highness’ pleasure, but any member of the Council may at any time resign his office”.

This directly means that the person of the Menteri Besar shall hold office, in so far as he enjoys the confidence of the majority of the Assemblymen (not so much of His Highness’ pleasure). Again a vote of (or no) confidence to ascertain that position, is best done in the state assembly sitting.

Moreover you couldn’t help the rakyat perceiving and believing that until the MB is defeated, either in the assembly or through the ballot box, he still is the legitimate Menteri Besar.

Quite sadly though, the Sultan was quite adamant on what he wanted – for MB Nizar to step down immediately, and ostensibly seen in a rush, few hours later to back the appointment of the new Menteri Besar.

That was immensely regrettable, as His Highness could no longer grasp the heartbeats of the majority of His rakyat who had voted in the Pakatan Government 11 months ago. Many have alluded that his discretionary power has played into the hands of the other power-that-be.

Consequently, it is now widely regarded as a political coup d’etat staged by the Umno-BN government. It would have been good if His Highness were privy to a latest survey of His Highness’ Rakyat, where an overwhelming majority wanting the matter settled through the ballot box.

Be that as it may, the Perak constitutional crisis has now been alleged as having taken a violent turn. While leaders of the Pakatan have strongly reminded members and well-wishers not to fall into the traps and evil designs of their political nemesis, the mainstream media are demonising the Pakatan Rakyat on violence, treason and disobedient to the Sultan. The Truth shall eventually prevail.

It may be pertinent to remind all well-wishers of reform and change that in the final analysis, what really matters is still to secure the support of the people. We could still get the real judicial redress in the Court of Public Opinion, where the people are the Real Judge, before we get to the Ultimate Justice in the Divine Court of the Almighty.

We may have lost the battle, but Winning the War we Must! The War is fortunately still the Ballot Box. Going against the Rule of Law places the state of forming an illegal government. That scenario is now the case in Perak.

The Ruler of Perak must undo the crisis, judiciously and beyond partisan interest. Otherwise he runs the risk of living with an illegitimate MB and an illegal state government advising him.

Wouldn’t it be in the best interest of His state and His rakyat that His Highness calls on a fresh mandate and gives the state a chance to start on a clean slate. Now that we are embroiled in a full-blown crisis, doesn’t His Highness has the ‘Reserves Power’ to dissolve the House, as recently suggested by a constitutional law professor?

Dr Dzulkefly Ahmad is the Director of the PAS Research Centre and the MP for Kuala Selangor. (www.drdzul.wordpress.com)