Let’s breathe life, spirit of the rakyat into Constitution

What if the next tussle tomorrow involves the control of parliament?

Written by Thomas Soon, The Edge

HOWEVER unpopular the Court of Appeal's decision last Friday in reaffirming Barisan Nasional's (BN) Datuk Seri Dr Zambry Abdul Kadir as the valid menteri besar of Perak, it was probably the right ruling by the letter of the Constitution — but is it in accordance with the full spirit of the letter?

The answer provided here is that it is in serious doubt that the full spirit of the Constitution has been adhered to. This is because the dominant public opinion may have been sidelined and not given any consideration.

Based on the utility and purpose of a living document, it is argued here the court decision may lead to more situations in which politicians, even if unwittingly or unintentionally, drag the constitutional monarchy into politics and put the royal seat in a spot, causing it to be perceived as taking sides.

That was what happened in Perak. As such, it is argued that any interpretation of the Constitution has to faithfully adhere to convention (unwritten practice), which calls for the constitutional monarchy to accede to the incumbent executive's requests.

Make no mistake, according to the letter of the Constitution, the monarchy has an inherent right to deny Pakatan Rakyat's (PR) request for the dissolution of the state legislative assembly, given that a viable alternative government was offered by another party.

Article 16(6) stipulates that if the menteri besar ceases to command the confidence of the majority of the legislative assembly members, then unless at his request the Ruler dissolves the legislative assembly, he shall tender the resignation of the executive council.

The phrase "unless at his request the Ruler dissolves the legislative assembly" gives His Royal Highness that power to reject the request of dissolution.

If the request was rejected, "the menteri besar shall tender the resignation of the executive council".

What about the menteri besar himself? Though silent on his resignation, the Constitution already clearly states the menteri besar has to be one who commands the majority support.

Once that is lost, he can no longer claim lawful legitimacy to hold the seat.

On the other hand, if a dissolution is consented to, the menteri besar's resignation is no longer an issue and he would by convention assume the role of heading a caretaker government.

Hence, if the dissolution request is rejected and another law maker who commands the majority support and stands ready to take over, by the letter of the Constitution, the incumbent has to step down.

In addition, the Constitution explicitly stipulates he has no choice but to tender the resignation of his exco.

Furthermore, the document is silent on the need for a vote of no confidence to determine majority support or lack thereof.

As such, the Court of Appeal rightly ruled that the Sultan of Perak had every right to determine in other manners whether another party had majority support to take over executive control of the state.

Regardless of all other considerations, BN had all the lawful backing in the letter of the Constitution to wrestle executive control from PR.

A PR government was simply no longer tenable, not without the support of the three defectors that effectively tilted the balance of power to BN.

Herein lies the root of the problem — the unpopularity of the defections and the dubious means of the takeover of power.

Measured by public opinion, different circumstances may justify such defections and the subsequent wrestling of executive control, and may even justify the sidelining of convention.

Any such justifications under the Perak circumstances are in serious doubt, judging by the wave of dissenting public opinion that also explains the breakdown in rule of law during the "physical" tussle for control of the state's legislative and administrative halls.

It is therefore argued here that the Constitution, though written and explicit, is called a "living and breathing document" not for trivial reasons.

Public opinion has to matter and is a vital consideration for anyone, including the Federal Court, in interpreting the Constitution.

No matter how the constitutional crisis in Perak pans out, politicians from the opposing sides must learn from it.

They must understand how they can properly play their respective roles in the country's constitutional system.

However Perak resolves itself, the BN and PR leaderships must come to realise that similar circumstances could arise again in that or other states, with reversed roles.

Sticking by convention, instead of playing by different rules to suit their own interest, is perhaps the best way forward for all parties, lest both the country's judiciary and monarchy are dragged deeper into their cesspool of wayward politics.

Principles notwithstanding, the parties must realise that once the rules of the game have been changed, the new rules apply even when their roles are reversed.

What if the next tussle tomorrow involves the control of parliament?

Changing the rules mid-way into the game can never be in the interest of the country and the rakyat.

When in doubt, ask the rakyat — to whom all politicians are unanswerable. It is no coincidence that convention facilitates that determination.

Until and unless the judiciary resets the political tone to the default mode in the letter and spirit of the Constitution, politicians have to learn to see the bigger picture.

Let a new era of governance begin. Personal issues aside, politicking does not have to be acrimonious, not when all sides can even talk to foreigners of vastly different ideologies and beliefs, not when all sides deny crazing for power.

A good beginning would be to return power to the people of Perak and save all parties further blushes. After all, the best gift for people is to let go of that most coveted.

(Or BN could drop all allegedly trumped-up criminal charges against Opposition Leader Datuk Seri Anwar Ibrahim. That would be a good start. Why not, when MCA deputy president Datuk Seri Dr Chua Soi Lek, who has his own fair share of sex scandal, gets appointed as BN chief coordinator?)

In the meantime, the Perak constitutional crisis will now head to the Federal Court.

Surely, the apex court will clear any doubt, in the eyes of the rakyat, if all parties including itself had adhered and would adhere to the letter as well as the spirit of the Constitution.

The Federal Court needs to breathe life and the spirit of the rakyat into the Constitution. The courts must create certainty out of uncertainties. The country's future depends on it.