by Koon Yew Yin
20th March 2009
Like most ordinary people, I was initially very confused by all the articles and commentaries on the Perak constitutional crisis. Just like reading an interesting book, I was anxious to know what the ending would be. There is one important difference though. Unlike a book, the ending of this crisis – for better or for worse – will affect my life and the lives of ordinary rakyat of Perak, as well as all Malaysians, given the ramifications that the outcome will have on the constitutional process of political power and governance.
In recent weeks I have become increasingly concerned with the twists and turns in this modern version of the Perak wayang kulit which – as with some of the stories found in its traditional form – contains strong moral and ethical elements. These recent developments include the infamous act of demolition of the “Democracy Plaque” put up by the rain tree and the recent action taken by the Federal Government to charge Karpal Singh under the ISA for saying that the Perak Sultan can be sued.
All these events seem to indicate that the Barisan Nasional Government has prevailed in its attempt to oust the Pakatan Rakyat state government from power. Reading the official media accounts and analysis one can certainly be forgiven for thinking this. I, too, similarly was of this view until I attended the talk given by former Appellant Judge Dato N.H. Chan at the Perak Bar Council on 19th March 09. The title of his talk was ‘ How to Judge a Judge’. To get the maximum benefit from the lecture, I read up Justice Chan’s two articles, namely ‘The tussle between the Sultan and the Mentri Besar in Perak’ and ‘The Arrogance of a Novice Judge’.
After the talk, I asked a few questions and the answers I got, clarified all my doubts. In the English or Western chess game, the situation is now called zugzwang. It is a German word to describe a chess player’s position when he has to make a move that will only worsen his position.
The Perak constitutional crisis started on 4th Feb 09 when the PR Mentri Besar Dato Seri Mohammed Nizar requested the Perak Sultan to dissolve the legislative assembly because two 2 of the PR assembly members resigned and declared themselves as independent assembly members. As a result, PR now has 28, BN has also 28 assembly members, and there are 3 independent members. The ruler turned down Nizar’s request. The next day after seeing the Deputy Prime Minister Najib Rasak, the ruler summoned Nizar to tell him that he had to resign and Dato Zambry Abdul Kadir was then appointed as the new Mentri Besar.
This political impasse arising from what has now been widely assessed to be a hasty and unwise move by the Perak Sultan has now become more complicated. On 18th Feb 09, the ‘newly appointed’ Mentri Besar Zambry and his 6 Executive councillors were suspended by the Committee of Powers and Privileges of the Perak State Assembly for 18 and 12 months respectively.
On 3rd March 09 the Assembly Speaker, V. Sivakumar called for an emergency sitting of the assembly but the Perak State Secretary (with the assistance of what is supposed to be our ‘politically neutral’ police force) prohibited all the PR state assemblymen to enter the State Assembly building. The Speaker was undeterred and convened the meeting under a tree nearby. All the BN assemblymen including the ‘newly appointed’ Mentri Besar Dato Zambry boycotted the assembly.
In this assembly under the tree, 3 resolutions were passed:
1. The Assembly confirmed support for Dato Seri Nizar as the legitimate Perak Mentri Besar.
2. The Assembly confirmed the suspension of Dato Zambry and the 6 newly appointed executive councillors for 18 and 12 months respectively.
3. To seek all the possible ways to dissolve the Legislative Assembly.
Immediately after, the newly appointed BN Mentri Besar Dato Zambry rushed to the court to sue V. Sivakumar, the speaker for suspending them and to seek an injunction to stop the speaker from holding any more assembly meetings. Zambry and his assembly men did not realise that their boycott of the Assembly under the tree was a fatal move which I shall explain later.
The legality of the assembly under the tree is the key to resolve the impasse.
The following is my analysis of the political chess game which has now taken place in Perak and the moves by the two opposing sides.
1. According to Article 72(1) of the Federal Constitution, the validity of any proceeding in the Legislative Assembly of any state shall not be questioned in any court.
2. The Assembly is the master of its own procedure and laws. Any redress must be made in and come from within the House. In other words, a member can move a resolution to rectify any perceived error or irregularity.
3.The jurisdiction of the Perak Assembly over its own members, its right to impose discipline is absolute and exclusive.
4. Therefore, the suite filed by Zambry and his de facto EXCO to challenge the legality of their suspension is doomed to fail, if the proper law is applied.
5. Such being the case, the BN does not command a majority in the Assembly.
Without Zambry and the six other suspended members, BN only has 21 members. And even assuming the three others who have ‘resigned’ are included, BN is still in the minority with 24 members against PR’s 27.
6. We have a unique situation now where the ‘new’ Mentri Besar would not dare call for any sitting of the Assembly because that would expose his vulnerability. Furthermore, the fact that he is unable to attend the sittings is a good enough reason for him to resign from the Assembly as he is legally and constitutionally unable to present the Budget and also defend his policies in the Assembly.
7. Zambry’s position seems now to be untenable as it is contrary to established constitutional theory whereby the chief Executive should be a member of the Assembly. It is a matter of time before he is forced to resign by sheer force of circumstances.
8. Before the assembly meeting under the tree, the State Assembly met on 11th and 12th Nov. 08. Assuming that all the BN elected assembly men attended the assembly, they did not attend the assembly convened under the tree. According to Article xxxv of the Perak Constitution the Assembly can declare the member’s seat vacant if he or she is absent for assembly meeting for a period of 6 months. So by 13th May 09 if an assembly is called, the BN members will be voted out and if they do not attend the Assembly, their seats will be automatically declared vacant.
Therefore, checkmate and the game is over.
To enlighten readers further, let me explain the term ‘checkmate’ in chess. It is when an opponent has no legal move to protect his king.
As we all know, currently there is no Government in Perak. The delay in resolving the political crisis is affecting the State’s economy and social order – not to mention political order; and sooner or later all Perakians will suffer.
The BN leaders must consult their legal team and quickly resolve the problem. What is the opinion of the Queen’s Council? If what I wrote is legally correct, they should not wait till 13th May 09 to be forced out in ignominy and disgrace.
A quick return to the ballot box to see which party the Perak electorate wants as its state government is the only morally and legally defensible option for all stakeholders. It is also the way out of this political quagmire.