A view on the so-called Perak Constitutional Crisis

ARCHIVES 2009

By Administrator On Feb 17, 2009

At the onset, please take note that I am not a qualified lawyer, so what follows is an educated layman’s analysis and perception of issues.

In my opinion, the crisis can basically be categorized into two broad areas i.e. (1) the ‘resignation’ of the three elected assemblymen of the Perak State Assembly (PSA); and (2) the basis of appointment of the new BN government by the constitutional ruler of Perak state.

1. Resignation of elected assemblymen

The moment the Speaker of the PSA declared these 3 seats vacant due to him receiving the resignation of the said assemblymen, the EC had no choice but to proceed with declaring the said seats vacant and organizing by-elections. It is not the duty, jurisdiction or purview of the EC to determine or establish the authenticity (or otherwise) of the resignations.

Take the case of Joseph Pairin Kitingan, who was the elected Berjaya state assemblyman for Tambunan in the Sabah State Assembly. When Pairin fell out with his boss, Datuk Harris Salleh, in 1984, the Berjaya Party sent the Speaker of the Sabah State Assembly a pre-signed (but undated) letter of resignation from Pairin, vacating his Tambunan seat. Pairin challenged the validity of the said letter all the way to the High Court, but to no avail. The EC proceeded with the Tambunan by-election which Pairin won as an Independent, and the rest, as they say, is history.

The points to be taken from the Pairin case are:

(a) The pre-signed, undated letter of resignation was deemed valid by the court;

(b) The EC by itself never questioned the validity of the resignation letter and proceeded to conduct the by-election.

So why the double standards now? The EC this time has obviously overstepped the boundaries of its jurisdiction and powers by questioning the validity of the resignation letters. Why did they not follow the precedent set by the Pairin case? I am very sure that the Pakatan lawyers will highlight this when arguing their case before the courts.

2. Appointment of new state government by the ruler

Much heated debate continues on the constitutionality or otherwise of the appointment of the new MB and his government by the ruler in February 2009. Some of the arguments in favour of the ruler’s decision are based on the following:

§ Precedents in Perlis and Terengganu following the March 8 elections last year, where the rulers of both states, using their constitutional prerogative powers, appointed chief ministers who, although were from the winning party, were not the choice of their own party;

§ Precedent in Perak itself, where the ruler listened to representations from both BN and Pakatan, before deciding to appoint a Pakatan government.

In my opinion, the above arguments do not hold water as in both cases there were no constitutionally convened state assemblies at the material time, where a potential chief minister could prove that he enjoyed the confidence of the majority of assemblymen. All state assemblies had been dissolved prior to the March 8 elections, and the only way the rulers could make an educated decision was by inviting parties to the palace and then determining themselves who they ‘perceived’ to enjoy the confidence of the majority of the elected assemblymen.

In the present scenario, the time is February 2009, and Perak has a valid and constitutionally convened state assembly. To avoid any undue problems and definitely to avoid the mess which we are in today, the only constitutional and practical way would have been to convene a special sitting of the PSA to determine and establish who enjoyed the confidence of the majority of the house, with the ruler then proceeding to appoint such ‘winner’ as Mentri Besar accordingly.

Again there is a legal precedent here, in the case of Stephen Kalong Ningkan – Chief Minister of Sarawak – who, in 1996 was summarily dismissed by the Sarawak Governor purportedly because he failed to command the majority of the elected assemblymen in the Sarawak State Assembly. The High Court determined that the ONLY way such command or confidence could be tested or challenged was from the floor of the House…NO OTHER WAY. Of course, the Federal Government, then seeing that there was no other way of legally ousting Ningkan as Chief Minister, proceeded to declare a state of emergency (due to the threats to security purportedly created by the constitutional crisis which the Federal Government itself sparked off in the first place) to get Ningkan ‘out of the way’. Again the rest is history.

From the foregoing, it is clear for all to see that:

(a) The resignation of the three Perak assemblymen is legally valid and with legal precedent, and the EC should proceed to call for by-elections;

(b) The only way to test/challenge command of majority is from the floor of the House itself and by no other means;

By Ambrose Kinto