Tuesday, May 5, 2009

Thoughts on Perak's Constitutional Crisis

Could any wise persons out there help answer these three questions:

  1. Does HRH have the prerogative to unilaterally dismiss governments and appoint a new MB?

  2. Convention and custom of the Westminster system hold that if an MB loses a vote of confidence in the Assembly, then he and his government must either resign or seek HRH's consent for dissolution of the Assembly and fresh elections. If HRH does not consent (meeting the conditions of the Lascelles Principles), then convention holds that the government must resign, and HRH can appoint a new MB (this is a good convention). However, what happens if the MB seeks dissolution WITHOUT having lost a no-confidence motion and HRH refuses to dissolve? Must the MB resign anyway?

  3. Can an MB's statement or concession that he has lost the confidence of the Assembly, legally replace an actual vote of no confidence? (For comparison, could Al Gore's concession to Bush Jr. have legally given Bush the presidency in 2000 even if Gore had won Florida's votes?)
IF the answers to ALL the above questions are no, THEN:

Even if DS Nizar was aware that BN had more ADUNs behind them, and had asked HRH to dissolve the State Legislative Assembly for that reason, his removal under Article 16(6) of the state constitution is not right. Of course, if it turns out that he wasn’t OR didn't, then question 3 above is moot, as are the first 24 words of this paragraph. Without any actual vote of no confidence being passed, any statement (including the MB's) claiming that the MB has lost the confidence of the Assembly is at best hearsay, and should not have been accepted and acted upon as the truth. The only body allowed by law to decide a vote of no confidence is the house itself in session. Since there had been no such vote yet, HRH's correct course of action, if HRH did not want to consent to the dissolution of the assembly (as he can do as per the Constitution), should have been to call for a sitting of the Assembly, where a motion of no confidence could have been put to a vote. If the motion was passed, THEN the condition in the first 19 words of Article 16(6): “If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly,” is satisfied, thereby allowing HRH to appoint a new MB.

In my humble opinion, HRH should not have accepted anyone's contention that DS Nizar's government had lost the confidence of the house, without there having been an actual vote of no confidence. I also believe that HRH should not have taken it upon himself to ascertain if the floor crossing ADUNs supported BN. That is the role of the Assembly, and any exception to this threatens the separation of powers in our Democracy, and the supremacy of Parliament.

I realize that my opinion is based on a procedural issue which would not have changed the outcome, as BN would have won the vote of no confidence anyway. However, if we want Justice done, and that it be seen to be done, procedures laid out by law need to be followed to the letter and not sacrificed for expediency. Where the law is silent & no procedures exist, all actions & decisions taken should follow the principles of natural justice and due process, and if intractable deadlock ensued, the ultimate arbiter must be the Rakyat through elections. If this had been the case, whatever the outcome may have been, the Rakyat's confidence in our Democratic Institutions would have been strengthened immensely . At worst, their anger would have only been directed towards the ADUNs who crossed the floor (and those who encouraged them), for having betrayed the Rakyat's trust from GE-12.

I am concerned that our laws at present aren't clear enough on the rights, roles, responsibilities and limits to the powers of the various Institutions that play a vital part in our Democracy. The relationship and interactions between these entities are still governed by unwritten or partly written conventions, customs, discretionary and reserve powers and prerogatives. These ambiguities have resulted in actions and outcomes that may seriously undermine our Democracy and Constitutional Monarchy. While there is certainly a case for allowing some "wriggle room" in laws so that we may flexibly meet unforeseen challenges, the seriousness of the Constitutional Crisis that we are currently facing suggests that this room for wriggling is currently much too big. Surely our best legal minds can amend our laws to better reflect the Rakyat's aspirations. What we need is a review of the laws of all states, and where ambiguities exist, they need to be codified as clearly as possible, all the while strengthening the foundations of our Democracy: Constitutional Monarchy, Separation of Powers and Parliamentary Supremacy. Surely this is not asking too much for DS Najib's 1Malaysia?

For starters, let's amend Article 16(6) of the Perak State Constitution to read as follows:

“If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, as determined by the Legislative Assembly passing a motion of no confidence, or rejecting a motion of confidence in the government, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the executive council.”

As for our current situation, where the Rakyat's confidence in Democracy and its Institutions has been deeply shaken, IMHO the best solution is for HRH to allow the Speaker's request to delay the sitting, for BN admit its mistakes and request HRH that the Assembly be dissolved and fresh elections be held, therefore allowing the Rakyat to solve the crisis. This is the only win-win-win-win solution I can see, and it is the least that BN can do by way of making amends to the Rakyat of Perak. I hope that BN's leaders have the wisdom to realize that while they can run for a while, they cannot hide forever from the wrath of a Rakyat whom they have crossed. Even if they lose this battle, this solution may be just what they need to help them win GE-13.


Malaysian Heart


  1. What if...during the recent CNY, HRH has secretly called for assembly sitting chaired by laughable Hee, and attended entirely by BN/BN friendly ADUNs' whilst none from PR showed up (because they were not inform)? And, let's say that during the secret assembly, motion of no confidence were passed?

    Afterall, if I remember it correctly, HRH did call for all BN/BN friendly ADUNs' to Istana Kinta prior to MB Nizar's audience with HRH.

    What happen then? UUmmmmph...food for thoughts, maybe eh....

  2. Hi Nightcaller,

    There are rules in place that would make that illegal...I think. Always best to doublecheck these things.

    And you're right, that ADUN audience certainly didn't feel right.

    Thanks for dropping by,
    Malaysian Heart

  3. Bn's mentality is weak. It is unable to rule out if it has successfully persuaded RHR to grant the resolvability of Perak constitutional crisis, it might get the full praises of Perakians. It is thinkable to take into consideration. Do it for the people as well as for themselves in future trial of retake Perak state again if they really lose in the snapping election. PR can not hold it on forever if PR is no good. It is the right way to think for betterment for nation and people.

  4. In actuality there are many unknown elements that blocks the settlement of Perak's constitutional crisis. Every body knows that is only one way to solve this problem is to go back to people. Enable rakyat to take up responsibility to authorize which party should be their chosen government. And I strongly believe that our Perak sultan knew more than us about it. He knew he didn't have the constitutional power to sack MB Nizar. But it still happened that way that puzzled many lawyers.
    There are factors obviously shown that they can not just simply let it goes psychologically and politically. Logically they thought they got the right to take over the ruling power of Perak government. It's because they had done it before in East Malaysia. Politically they must show power to PR, other wise they will be forced to accept their defeat in Perak unwillingly.
    Our country's political mentality is still unparalleled to other democratic countries. Government has too much power over many institutes. Such as judiciary, internal security is not fully independent. The uses of ISA are too much frequent and in certain of level it is unfounded to be righteous to apply to use it.
    The bewilderment of crisis are all created and mastered by inappropriate personnel and executive power. People's power is minuscule and obviously insignificant. It only can be used once in after 4 years. If they go into street to express their unhappiness of the present political confusing situation, police will come to take them down inconsiderately. They have no choice but to see two parties fighting one another.
    HRH should have consider it. But .................................Sigh!


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