Article XVI(6) of Perak state constitution according to KimQuek says: “If the Mentri Besar ceases to command the confidence of the majority of the Legislative Assembly, then unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.”

It does not say how the fact of Mentri Besar’s ceasing to command the confidence of the majority of the Legislative Assembly is to be determined by the Sultan. This means that calling 27 BN aduns in along with 3 kataks to Istana to say the support BN and not PR can be the right form of determination that arithmetically PR lost the majority.

In such a case, the wording “unless at his request His Royal Highness dissolves the Legislative Assembly” the existing MB shall tender his resignation (meaning if he does not so tender he can be sacked by the Sultan).

Obviously if he does not so tender, it means that the MB Nizar has the alternative recourse under the state constitution to request the Ruler to dissolve the Legislative Assembly.

So what is the point of Article XVI(6) of Perak state constitution having a provision and giving the MB the alternative recourse to request the Ruler to dissolve the Legislative Assembly, if the Ruler can veto that decision/recourse of the MB?

If it were intended by makers of Perak state constitution that the Ruler could so veto the MB’s request to dissolve the Legislative Assembly, then Article XVI(6) would have been drafted differently – for example “If the Mentri Besar ceases to command the confidence of the majority of the Legislative Assembly, then unless at his request His Royal Highness dissolves the Legislative Assembly, OR IF OTHERWISE HIS ROYAL HIGHNESS DERTERMINES AT HIS ABSOLUTE DISCRETION THAT THE DISSOLUTION OF LEGISLATIVE ASSEMBLY IS UNNECESSARY, he (MB) shall tender the resignation of the Executive Council.”

Now this “new” Article XVI(6) gives a third option in CAPITAL LETTERS – ie the Ruler’s determination of necessity to dissolve assembly and deciding against when the opposite side has the majority.

Article XVI(6) in present form gives ONLY TWO OPTIONS if by whatever way determined, the MB has lost majority : either (1) he requests Ruler to dissolve legislative assembly or (2) resigns his government (it being implied that if he fails to do that, the Ruler can sack him).

There is by this reasoning no third option (unless one adds in the words in capitals).

On the basis of the above, I think the better and objective view in logic – as it ought to be the case in law – that Mohd Nizar/PR is entitled as of right of an incumbent the prerogative and option to request the Ruler to dissolve the Legislative Assembly in lieu of voluntarily resigning himself and the government.

Bar Council’s president Datuk Ambiga Sreenevasan may be right to say that Sultan Azlan Shah’s decision should not be questioned for whatever other reasons but Ambiaga & the Bar Council she represents cannot be taken to be right to say (prematurely) that the course that has been taken so far as to negative Nijar’s option to dissolve the Legislative Assembly to pave way for general state elections is the correct position in logic or law!

A caveat: My comments are based solely on wordings of Article XVI(6) of Perak state constitution without benefit of reading the rest for context.

As a constitutional monarch, a request to him is just a constitutional formality. In a republic, the MB himself call for dissolution of assemby fior fresh election if a vote of no confidence or some other means (signatures, physical presence or Statutory Declarations) are used to show he lost the majority.

What I am saying is that if I am voted in by majority and after a time, “evidence” is shown that I lost that majority by reason of defections, there can be no transfer of power based on just the “evidence” stated, without first going through the rigmarole of dissolving the assemby and returning to the people for fresh mandate to reaffirm which side has really the new majority under these changed conditions produced by the defections.

Therefore the true and final evidence of majority is the people’s will as reflected in fresh election and NOT the first set of “evidence” mentioned ie of defections and adding together the numbers or even a vote of no confidence by the rival side.

That first set of “evidence” (eg proven defections) to show the existing state govt lost majority in state assembly – and even a vote of no confidence to show that it lost the majority – cannot translate to a a transfer of power to the opposite side that has got majority in numbers.

It only translates to providing a justification to force the existing govt that lost majority to either resign or seek fresh mandate by state elections.

In short, proof of BN’s having more numbers from defection is proof that Nizar should resign or ask the Ruler, as a matter of formality that cannot be turned down, for dissolution of assembly to pave way for fresh election.

I must emphasise that the (a) proof of BN’s having more or majority numbers in state assembly from defection is NOT and NEVER CAN BE proof that (b) BN, which has the majority numbers now has also mandate of the rakyat/Perakians.

Proof of majority numbers in assembly is NOT EQUAL in logic or law to proof of mandate because majority numbers are procured by defections of political turncoats AND the right and legitimacy to govern is derived from peoples mandate that only canm be ascertained in state election.

Having majority in numbers in state assembly by itself CANNOT VEST the right and legitimacy to govern and rule especially when that majority is procured from defections!

Any other arrangement of transferring of power then would constitute a circumvention by some higher body of the need to re-establish the wishes of the people/voters or a pre-emption of what their wishes might be, which has not verified or legitimised by their votes. Isn’t that so Loh?

In an Absolute Monarch that higher person is the Ruler : however in a Constitutional Monarchy/Parliamentary system under which we operate, there is no higher body because the people are the highest: and that is why parliamentary system of government is based on sovereignty of the people and not sovereignty of the Ruler.

Did I go wrong anywhere ?

I did not put it that well above, ie the juxtaposition of the word “majority” against mandate.

Majority is different from mandate. Majority in numbers reflects mandate, so majority forms govt. If opposite side disproves your majority in numbers and shows it has more numbers than you, does it mean that the other side has people’s mandate?

I say no. I say it only shows that the majority that you once have as an insignia or badge if you will to reflect your mandate has been discredited – which means that everyone has got to go back to the people for mandate.

The fact that the opposite side now has the majority numbers due to defections – and therefore has a more ‘shining’ insignia or badge does not justify the conclusion that the other side has the mandate : for no one should confuse majority numbers as a badge/insignia of mandate as mandate itself – no more than one who wears a insignia/badge of a school can prove defnitely that he is a student of the school and thus given that badge/insignia.

That’s all I am saying, according to my simple reasoning – sorry.

Godfather,

When people look at an issue and determine that there may be a legal argument or case, doies it necessarily mean that they have to sue? They also consider other factors : the costs of pursuing the case, whether the one sued has more money to stand the marathon of fighting th case by appeals for protracted perid, or has the assets and money to pay even if the case were won, and whether the side sued may resort to employing gangsters to harm your family members and so on and after weighing and balancing all factors may decide not to seek the legal recourse even though by law or logic one has a good case.

So a discussion of (a) the merits of the case is one issue and (b) the actual taking up or not taking up action after weighing all factors to sue is another separate issue.

So are you saying if we evaluate (b) and discuss or say that considering all things the case should not be pursued, we cannot therefore independently discuss (a) whether, if the case were pursued there is merit or fighting chance to win it?

You can’t see the difference between set of considerations in (a) different from (b) or are you saying those that discuss (a) cannot discuss set of considerations in (b) or has forfeited that opportunity to do so?

Please explain which is which as I am amazed by the rigidity of your thinking.

Godfather I know a person of your rigid mindset will jump to say, “What is your final recommendation, counselor ? In no more than 4 lines please.”

In 4 lines? Don’t you read properly – my posting February 6th, 2009 at 17: 01.11 above here in which I said, “At this moment I have no thoughts, opinion or response to this (Karpal’s) move, whether it is wise, right, foolish or wrong strategy, but objectively however on strict interpretation of law, I think Karpal Singh has a basis to argue.”

Do you understand simple English of what that means (in context of preceding comments/postings)?

“Are you now saying that we have a case, but that we should not sue ? yes or no would be sufficient” – Godfather.

Regardless whether I could answer your question, can you please answer mine first of whether I have any obligation here, moral or legal, to respond or answer your question as you framed it? Please answer me first.

“Can someone summarise the above in 2 lines please.” – Godfather

If that were done, it may be a waste of effort because you might still not understand it, even after consulting the dictionaries several times. For the problem lies, sir, not in the language but the habit of mind.

I reiterate, you have not answered my question in posting February 6th, 2009 at 18: 42.35 whether I have any obligation here, moral or legal, to respond or answer your question as you framed it? A simple yes or no will do.

Will I want to be on your payroll in the first instance for you to fire me long ago? To borrow OrangRojak’s phrase, I am very much humbled by your self respect!

OrangRojak, being stuck with old-fashioned ideas where states of mind, once realised are concrete and unchanging for years is one of the sad thing for many (not all) people when they grow old. I think we should not point this out too loudly.

A decision on PR’s part based on considerations relating to interpretation of law/constitution (“Legal Considerations”) is a thing apart – and separate – from a decision on PR’s part based on basket of political considerations of what may serve its best interest (“Political Considerations”). Legal Considerations are but a part only of and not sum total of the Political Considerations. This being the case, merits in respect of Legal Considerations (on balance) are not equal to merits in respect of Political Considerations (on balance).

One’s case (as in PR/Nizar’s legal challenge) may have legal merits but there are two caveats: firstly, even if there are legal merits it does mean the refree (court) may agree to vindicate one’s position. For that depends on the independence of the particular judge/court from executive interference. Secondly even if one takes the case to court – and the court will be fair and independent to vindicate one’s Cause on basis of law alone – courts’ calenders are conjested and there’s no telling that its final determination (based on series of appeals and counter appeals) may not take more than 10 years to resolve, which will be way after the next General Election.

So the practical factor to weigh is whether there is a point to pursue the case when the earlier event of next General Election may prove a better – and earlier – vindication of one’s Cause. If that is correct, then one may want to concentrate on the General Election and maximise the chances of winning.

This is where the problem arises. One may have merits in one’s case based solely on Legal Considerations but to take it up may detract/subtract one’s chances of galvanising support from Malay section of the electorate if the opposing side BN could successfully manipulate one’s taking up the issue in court as an act of defiance and disrepect or even treason in relation to the institution of Monarchy that has made the decision challenged in court.

So if PR weighs the benefit of pursuing the case based on merits of Legal Considerations as against the costs of (i) the risk that the case, though having merits in law may still be lost if the particular court/judge happens to be not independent and (ii) the risks of alienation of a section of Malay Electorate that becomes unhappy at what they perceive as an act of defiance and disrepect or even treason in relation to the institution of Monarchy when a case is instituted against a Monarch or His decision that (iii) will have adverse repercussions on one’s popularity in the next General Election, that by the way may well occur way earlier than the final outcome of the case pursued, on which side would the cost versus benefit scale tilt? Everyone of you could make your own decision on this. These wider considerations are the Political Considerations. They are different from Legal Considerations.

“That could explain your sometimes intellectual constipation” – Undergrad2 at February 7th, 2009 at 01: 12.35 – Yes, especially when, occasionally one suffers from having to sit on and engage with ossified thoughts as wide and deep as a toilet bowl pan!

To Loh, your interpretation stated in posting February 7th, 2009 at 05: 41.16 accords with my thinking on Article 16 (6) of the Perak in alignment with that of KennyGan in his posting February 6th, 2009 at 21: 33.14 above.

There are only two options in Article 16 (6), and the is no third one that confers by implication to the Monarch the discretion to disregard the MB’s advice to dissolve the assembly and ask him to resign instead to make way for a new appointment to facilitate a direct transfer of power to the opposite party without fresh mandate via elections.

In a Constitutional Monarchy (as distinct from an absolute Monarchy) within a wider system of parliamentary representative government, the question of mandate of people from election is an all important issue based on “sovereignty of the people” rather than “sovereignty of Monarch” – and numbers, in terms of whether one has majority of assemblymen, are used to measure against yardstick of mandate of people only up to the extent that numbers do not become an end in themselves to subvert and contradict the very same mandate of people they are supposed to measure.

Taking this view, the interpretation above ought to be correct as a matter of law.

Anwar/PR/Nizar has thought the better and now changed course to file a suit against the “new” MB Zamri Abdul Kadir instead of the Ruler. It is uncertain whether Zamri is correct party to proceed against based on law but it is certainly less sensitive and more symbolic course of action on PR’s part to provide the general backdrop/setting for whatever acts of non recognition that PR may from now initiate to de-legitimise the BN dominated Perak Govt. seized from a coup from political defections.

PR must realise that these measures of protest by it would also effectively put a brake on whatever plans Anwar/PKR may from now on have to poach BN defections (whether in Penisular or East Malaysia) to topple the BN Federal Govt earlier than next election since what is sauce for the goose is sauce for the gander.

“I suggest that Nizar should simply return the “Dato’ Seri” title to the Sultan. Anyone other than Jeffrey disagree ?” (Godfather).

Godfather’s suggestion that Nizar should simply return the “Dato’ Seri” title to the Sultan is an extremist one characteristic of his mindset which right & measured thinking people thinking of Nizar/PR’s best interest will not rush to do!

Besides the point raised by Onlooker Politics in posting February 7th, 2009 at 08: 57.04, it must be born in mind that Nizar has done nothing wrong to dishonor his title – the Sultan has not asked it back – and therefore to return the title under such circumstances to the Sultan, as Godfather suggests, is calculated with the intention of insulting or dishonoring the Royalty just because one’s does not agree with HRH’s interpretation of and action based on Article 16 (6) of Perak State Constitution.

Fortunately neither PR nor Nizar is as impetuous and foolish as some of their overzealous supporters whose vision is only as far as the distance between eyes and nose and hence whose advice no matter as well intentioned will do more harm than good!!

The stance taken by PR/Nizar is to maintain recourse to challenge the constitutionality of the transfer of power. It appears to be grounded on a good basis in law as above discussions show; it appears to be a way to repudiate the legal and moral legitimacy of the BN’s state govt hurriedly formed in Perak, which is more dignified that Nizar’s initial charade of going through the motion of rescheduling appointments as MB with consultants and investors against the backdrop of BN’s fait accompli.

What requires to be balanced is the need for (1) legal recourse suit against (2) the need to maintain respect of the institution of Royalty/Monarchy (as distinct from whether or not one agrees, as a matter of constitutional law with HRH Sultan Azlan Shah’s interpretation).

Which is why PR nor Nizar’s decision to maintain legal recourse (but not directed at the Sultan) is measured and well calculated!

OrangRojak said, “My brain is bleeding at the Asian definition of ‘respect’ Jeffrey” – posting of February 7th, 2009 at 11: 50.41
Yes, the term “respect” boggles the mind when it is used in different contexts.

On level between individuals, it is not presumed or gratuitously proffered to someone undeserving. It is earned.

However on societal level, when one deals with an institution, whether Judiciary or Monarchy, then “respect” is accorded (as opposed to “earned) to that institution, if for whatever reason, historical, traditional, rational or irrational, such is valued to be retained in the society.

Then it gets a bit complicated as a distinction is sought to be drawn between the position and the person currently occupying it.

We then have an anomalous situation in which one could get so angry with the official/person sitting on that chair that one could spit in his face and yet feel like demanding an apology from him in impeding the path of your saliva, and yet by virtue of his position – and you guess it, “respect for the institution” – refrained from doing so. In part this is because that institution “respected” is permanent; it survives its immediate occupier, no matter how despicable a person; the position may also be symbolic of certain values and traditions held dear.

‘Respect’ is this regard is not peculiarly an Asian definition – no more than Western: for eg, a Briton might think Prince Charles a nerd and yet in his royal presence would say polite things – same as some conservative American might squirm if his daughter shares 5 minutes of conversation with Bill Clinton and yet would not show it. All kinds of motions were initiated as a means to provide Clinton or Nixon a graceful exit (short of last resort of impeachment) because of this so called “respect” for the institution of presidency. Same in the case of Judiciary, they will say, if my Lordship so pleases when what they would have wished to say is, “bugger off you old fool!” So there is hypocrisy and fiction in this as in other areas for social life.

The “respect” institution of Monarchy here is different in nuance from institution of judiciary/presidency referred to above. This institution is “feudal” in origin and tradition – quite apart from institution of judiciary/presidency where a society, as the USA, has not the feudal tradition. So “respect” for Monarchy would, I imagine include ‘face’, ‘obedience’, ‘subservience’ ‘sycophancy’ etc, often interchangeable. Having said this, history has also shown, that if an institution repeatedly, by actions/omissions of its occupier disappoints, angers and frustrates felt needs, then its value will diminish and it may in due course be abandoned.

Whilst we are aware that PR has evinced an intention to maintain legal action, as a matter of principle, we are not aware which specific party it would sue, which surely would depend on legal advice. However it has since backtracked from initial mention of suing Royalty for reasons of pragmatic restraint based on “respect” for institution of Monarchy.

Typo error in 2nd para above rectifioed in capitals : ” Ruler/Judge incurring a debt and not paying it to the bANk/creditor or a committing A CRIME should be taken to court because here Ruler/Judge himself is “disrespecting” institution of Monarchy/Judiciary.” Sorry.