Friday 20 February 2009

Perak: Whose Fault Now for the Blooming Mess? DPM Najib Has Stopped Laughing

Read here for more and here and here and here


In its haste to topple the Pakatan Rakyat (PR) state government, BN led by DPM Najib rushed to Perak to see the Sultan to form the BN-State Government after getting the three PR state assemblymen to defect to become independents, and got the Sultan to swear in the Menteri Besar and executive councillor positions.

But it appears Najib and his band of BN raiders have forgotten the powerful Speaker in the state legislative assembly, DAP's Sivakumar.

Instead, BN's newly-installed Menteri Besar (MB) Datuk Zambry Abdul Kadir and his six executive councillors yesterday found themselves suspended from the assembly for 18 months and 12 months, respectively by the Speaker of the State Assembly.

Zambry refused to reveal if he would defy Sivakumar by attending the next assembly sitting, merely stating that Sivakumar has abused his powers and should double-check with on his actions.

Sivakumar had earlier confirmed that he would remove Zambry and his six exco members if they attempted to make an appearance in the assembly.

Prime minister Abdullah Badawi accused the Pakatan Rakyat of insulting the royalty - potentially a seditious act - in a deepening political tussle over the control of a northern state.
He urged the state wing of the National Front to file a police complaint.He dismissed suggestions that a fresh election is the best solution to resolve the deadlock. He said the best solution was to let the National Front government continue to rule Perak.

If the 59-seat house were to sit today, PR would have 27 assemblypersons on its side (the 28th being the Speaker) and BN only 21. The three independents are no longer members of the House, as far as PR is concerned.

This unprecedented move throws up questions about parliamentary democracies under a constitutional monarchy never before faced by Malaysia. V SivakumarCan the Speaker, V Sivakumar from the DAP, run a House with an MB (Datuk Seri Mohammad Nizar Jamaluddin) who was sacked by the Sultan? Was the Speaker's move sub judice considering that a court case to declare the appointments of Zambry and his exco illegitimate is still pending?

The Perak state assembly must convene before May 13, six months from its last sitting on 13 Nov 2008.

With Zambry and his excos out of the House, it is possible that PR would call a special assembly to vote out the BN government earlier, in the middle of the Umno party elections which are from 24 to 28 March.

To forestall that, Zambry and his excos could go to court to seek a declaration that the suspensions were ultra vires. But even that would take time.

"If Sultan Azlan Shah wants to avoid a continued impasse, or worse, to have his appointments booted out through a vote in a special sitting, he would have to make a new decision on whether to allow a dissolution," Perak Parti Keadilan Rakyat (PKR) legal adviser Mohamed Asri Othman said.

Even without the suspensions, Perak was likely heading for a showdown in elections anyway.

"If the House is in constant deadlock, if bills cannot be passed, it would be bad for the state. Investors would not come, the state budget cannot be passed, the administration would grind to a halt. Ultimately, elections would be required," says Asri, a former DAP deputy secretary-general, and the Dermawan assemblyperson in 1990.

All scenarios hinge on Speaker Sivakumar who holds wide-ranging powers and whose position gives him the authority of a High Court judge, Asri notes.

Law lecturer Prof Dr Abdul Aziz Bari of the International Islamic University adds that the Speaker's decisions, if reached according to the House's standing orders, are final and difficult to challenge in court.

"This was BN's biggest mistake. They overlooked the problem with the Speaker," he says.

Even if the assembly sat with all BN assemblypersons present, Sivakumar could:
  1. block the entry of the three independents, Jamaluddin Mohd Radzi (Behrang), Mohd Osman Jailu (Changkat Jering) and deputy speaker Hee Yit Foong (Jelapang), and create a hung assembly with 28:28 ratio of BN:PR assemblypersons. The three PR party deserters have disputed their undated and pre-signed letters of resignations with the Election Commission. But as far as PR is concerned, they are resigned from their elected positions.

  2. block any motion to pass a BN-initiated vote of no-confidence against Nizar; and,

  3. block any attempt to vote him out as Speaker. The Speaker is elected by the House, and can only be removed by a vote, his resignation or if he ceases to become an assemblyperson.

Another possibility would be for all the 28 PR assemblypersons to protest the new BN government by not attending the assembly when it convenes.

"They would render the house dysfunctional. The BN assemblypersons on their own cannot elect a Speaker without first having removed Sivakumar. The House cannot proceed without a Speaker," Asri says.

PR can arguably say that the partisan actions of its Speaker are meant to let the will of the people settle the impasse through a snap poll.

Ipoh-based Asri believes this is inevitable. He speculates that Sultan Azlan Shah will be left with little choice.

He also believes that BN itself is considering this possibility, based on Prime Minister Datuk Seri Abdullah Ahmad Badawi's statement that he will brief the Conference of Rulers on Perak's political crisis at their next meeting.

"I wouldn't be surprised if the PM will seek the advice of the Conference of Rulers on a dissolution. It would be convenient for Umno to say they have to abide by the Rulers' decision as they have been rallying in support of the royalty."

Emergency Rule

Legal experts today weighed in on the constitutional crisis in Perak, unanimously agreeing that emergency rule should only be used as a last resort in solving the political stalemate in the Silver State.

Dr Abdul Aziz Bari (constitutional law professor)

The law is clear. The speaker is the man of the House, and the House is exercising its power.

BN, of course can challenge the speaker's decision, but I doubt that they can succeed. The speaker's authority is rarely challenged, even in the United States and Commonwealth countries.
Under Article 150 of the Federal Constitution, only the federal government has the power to declare emergency rule.

It is an open secret that the Perak crisis was orchestrated by the federal government, so we cannot rule out the possibility of an emergency rule in the Silver State. However, although the federal government has the legal right to impose emergency rule in Perak, it is politically insensible to pursue such a course.

People today have seamless access to information and communication, unlike in 1977 when Kelantan faced its own constitutional crisis. BN's popularity is already waning, and the declaration of an emergency rule will only accelerate their decline.

The federal government must also have the king's consent to declare emergency rule. Though traditionally, the king takes the advice of the prime minister, he also has the discretion to refuse emergency rule as he sees fit.

The cause for an emergency rule can be very wide: it can be triggered by political or economical reasons, and even natural disasters.

At the end of the day, the best solution would be to dissolve the state assembly and hold a snap election.

Both governments must consider the welfare of the people at a time when recession is looming. It seems like BN is more preoccupied about clinging on to power.

Dr Shad Saleem Faruqi (constitutional law professor)

Emergency rule should always be the last resort. Apart from emergency rule, there are three other alternatives that may be pursued to break the constitutional deadlock in Perak.

  • The first and most obvious one is to hold fresh state elections.

  • The second option would be for the House to summon the assembly to session and overturn the decision of the special privileges committee.

  • Under Article 150 (63-64), the Perak sultan may also consult the Federal Court on the best possible course of action.

Malik Imtiaz Sarwar (human rights lawyer)

On the surface, it appears that V Sivakumar acted within his powers when he referred Zambry Abdul Kadir and the BN executive councillors to the special privileges committee.

This incident also highlights the separation of powers between the executive and the legislature. The menteri besar is the single most powerful person in the EXECUTIVE.

In the legislature, it is the Speaker who is in charge.

If Zambry and his excos do not want to recognise the suspension, then they will have to file an application to court to seek judicial redress. He can also file a notice of urgency for the matter to be heard as it is of public interest.

Yeo Yang Poh (former Bar Council president)

The only way to solve the constitutional crisis in Perak would be to solve the root of the problem, which is the failure to expeditiously return the power to the people in Perak to decide who should constitute their assemblypersons.

Apart from holding fresh state elections, there are many courses that both Pakatan and BN can pursue.

The only sensible, clear-cut solution to this constitutional crisis would be to hold fresh state elections, and let the people decide once and for all the leaders they want.

Regardless of the outcome of the elections, it is one that all parties will have to accept and there will be no more room for ambiguity.

1 comment:

Anonymous said...

The first mistake was made by the MB of Perak when he went to the HM Sultan to dissolve the State Assembly without an appropriate resolution from the Assembly. Then the mistake was compounded.The PKR must learn to seek advice and govern.RAMLAX