Was the removal of Nizar constitutional?

ARCHIVES 2009

By MT Webmaster On Feb 16, 2009

The Sultan under these circumstances was clearly not the correct institution to undertake the task of ascertaining the true state of confidence the Mentri Besar enjoyed. The only competent body for this task was the state assembly.

Kim Quek

At the core of the Perak crisis is the issue of whether the forced removal of Mentri Besar Nizar Jamaluddin from his post was constitutional. If it was not, then Nizar is still the Mentri Besar.

The answer to this question would depend on a) whether Nizar had lost the support of the majority in the state assembly, and if he had, b) whether the Sultan had the power to dismiss him.

Let us firstly look at the issue of whether Nizar had lost his majority.

In a press conference on Feb 4 at 1640 hrs in Putrajaya, Deputy Prime Minister Najib Razak announced that Barisan Nasional (BN) had the majority to take over the Perak government as the assembly was tied at 28 vs 28 with 3 ‘friendly independents’. Next morning, after meeting Najib and the 28 BN assemblymen and ‘3 independents’, the Sultan issued a statement at 1425 hrs, ‘ordering’ the Mentri Besar and the state executive council to resign immediately, failing which, these posts were ‘regarded as vacant’. And two hours later, the police took over the state government building and evicted the state cabinet.

‘INDEPENDENTS’ ALREADY RESIGNED?

Nizar refused to resign on the ground that he had not lost the majority support, as the ‘3 independents’ had already resigned as assemblymen. He promptly re-appealed to the Sultan to give his consent to dissolve the assembly for fresh elections. The Sultan instead installed a new Mentri Besar the next day (Feb 6).

The resignations of the ‘3 independents’ came into effect earlier when the assembly speaker accepted their genuine letters of resignation and declared their respective seats vacant. However, the election commission declined to regard the seats vacant on ground of doubtful resignations. Despite the speaker’s assertion that he was the rightful authority to accept these resignations, and not the speaker, the former nevertheless applied to the court to declare these seats vacant so as to dispel possible ambiguity. Meanwhile, the speaker maintained that these ‘3 independents’ were no more assemblymen unless decided otherwise by the court.

Najib’s press conference on Feb 4, where he introduced four ‘defectors’ – the ‘3 friendly independents’ plus one double hopper, crowned almost two weeks of intense speculations under a cloak-and-dagger ambience of intrigues that included mysterious disappearance, hide-and-seek, hopping, double hopping, bribery and ‘kidnapping’.

QUESTIONABLE DEFECTIONS

The intrigues started when two PKR executive council members – Jamaluddin Radzi and Osman Jailu – who were both facing corruption charges scheduled to be heard in court on Feb 10, disappeared on Jan 25 and remained incommunicado to party leaders, only to reappear in Najib’ Feb 4 press conference. Rumours were rife that they were victims of a carrot-and-stick treatment under protective custody, as throughout the period of their disappearance, they failed repeatedly to answer frantic calls by party leaders to surface to clarify their positions while the duo intermittently leaked out vague messages via BN-controlled media.

The third ‘independent’ – DAP assemblywoman and deputy speaker of the assembly Hee Yit Foong – had been playing hide-and-seek for one week, failing to appear in several important functions. While she did express unhappiness over alleged poor treatment by party leaders, she nevertheless repeatedly pledged – right up to the day before her appearance with Najib on Feb 4 – that she would never betray the party that she had served faithfully for more than two decades. Granted that it should not have been a complete surprise when she quit DAP to become an independent, as she was already frustrated with her party; but then why take the completely illogical step of sleeping with the enemy – an enemy that she had fought tooth and nail all her life? In the absence of any apparent reversal of her political conviction, who would believe that her helping hand that toppled the Pakatan Rakyat government was not encouraged by an irresistible inducement, tinged perhaps with an element of coercion?

That Hee was still undergoing emotional upheaval was obvious from her body language during Najib’s press conference where she remained sullen and silent throughout, at the end of which she was immediately whisked into the room of Najib’s political secretary where she was given more than one and a half hour of ‘counseling’ by UMNO assemblywoman Hamidah Osman. Hee’s countenance in the room was serious and non-smiling. (Oriental Daily, Feb 5)

MYSTERIOUS DOUBLE-HOP

The prize catch of that fateful day of Feb 4 was undoubtedly the 4^th ‘defector’ Nasarudin Hashim who double-hopped back to UMNO, thus narrowing the gap between Pakatan Rakyat (PR) and BN in the assembly by two, making the tie of 28 vs 28. Nasarudin’s double somersault (from UMNO to PKR to UMNO) was perhaps the most dramatic of the four ‘defections’.

In the afternoon of Feb 4,Nasarudin’s wife Umi made a phone call to Nizar at 1510 hrs in the midst of his press conference. Nizar told the press that Umi had called to say her husband had been kidnapped and brought to see Najib. Nasarudin was said to be on his way from Kuala Lumpur to the State Secretariat in Ipoh to meet PR leaders when he was intercepted by two UMNO assemblymen Ahamad Pakeh Adam and Hamdi Abu Bakar who claimed that the Regent wanted to see him in Kuala Lumpur, but eventually Nasarudin ended up with Najib in Putrajaya. By 1640 hrs, he appeared in Najib’s press conference, where Najib announced that Nasarudin had returned to UMNO.

It appears that Nasarudin’s abrupt move to re-join UMNO was a surprise, as since his deflection from UMNO to PKR on Jan 25, he had shone as a credible leader with political conviction, repeatedly turning down strong overtures to return to UMNO including the rumoured offer of the post of Mentri Besar. So by logical deduction, something most extraordinary – more than just material inducement – must have happened to him in that fateful afternoon to make such a quick turnover of him. Perhaps only a powerful persuader could have persuaded him to take the step that would surely bring him shame and public scorn in the record-breaking double-hopping act. That he was a reluctant ‘defector’ was reflected in his demeanour in Najib’s press conference, when the appearance of stoic sufferance was written all over his face. Appropriately, at the end of the press conference, he threw a pack of his press statements on a table and swiftly left the scene.

ILLEGAL SABOTAGE

There was a common denominator among these four ‘defectors’. None of them has given credible ground for their switch of loyalty, indicating these ‘defections’ were not motivated by honest political convictions, but rather, the ‘defectors’ were victims of clandestine political machinations that in all likelihood are criminal in nature.

These sordid political maneuvers were but part of a continuing and ever expanding agenda of sabotage to destabilise and topple PR state governments, focusing mostly on Perak and Kedah at this moment. In fact, agents of such sabotage appear to be on a rampage of political bribery and intimidation of late, judging from increasing reports from numerous PR assemblymen who complained of harassment with offers of millions of ringgit plus lucrative positions, and some even expressed worries over the security of themselves and their families. Many reports have been made to the police and the Malaysian Anti-Corruption Commission, but no action was known to have been taken.

In the backdrop of these dubious political maneuvers, and with the legal status of the ‘3 independents’ in limbo, it is a complete amazement as to how the Sultan could have concluded that the Mentri Besar “had ceased to command the confidence of the majority of the State Assembly members” as prescribed under Article 16 of the Perak constitution.

NO LOSS OF MAJORITY

Without a legitimate establishment of this loss of majority, there was no constitutional basis to ask for the Mentri Besar’s resignation. His legal status as Mentri Besar is therefore intact.

At this point, the issue of the Sultan’s power to dismiss a mentri besar becomes hypothetical, since the former had no legal basis to make such an attempt. Still, as an academic interest, can the Sultan dismiss a mentri besar in the extreme case of the latter having lost majority support and yet refusing to dissolve the assembly? It is not at all certain that the Sultan has such power, as Article 16(7) states that “a member of the Executive Council other than MB shall hold office at His Royal Highness’s pleasure”, implying that the mentri besar may not be dismissed by the Sultan.

But why go into such uncharted terrains when there is an ideal solution at hand to resolve the present predicament – dissolution of assembly? Such a solution will kill many birds – the multiplicities of legal complications – with one stone, while returning the mandate to the people, in whom sovereignty lies.

A word on the Sultan’s prerogative to withhold consent to dissolution of assembly. While the Sultan may have the legal right to reject dissolution, such legal right is not meant to be exercised without accountability.

In a democracy, the decision to dissolve a legislature is rested with the executive head (prime minister or chief minister), not the titular head (constitution monarch or president). When a constitution provides power to the titular head to over-rule such a decision from the executive, it is meant as a protective mechanism to prevent abuses, such as over-frequent elections or fresh elections with no hope of resolving existing political impasse. Mentri Besar Nizar’s decision to hold fresh election does not fall under this category, and hence the Sultan is constitutionally wrong to withhold his consent.