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.

Sincerely,

Malaysian Heart