The reasons given by the Prime Minister and Barisan Nasional chairman Datuk Seri Najib Razak why the Barisan Nasional is not contesting the Penanti state assembly by-election in Penang on May 31 does not bear scrutiny.

Najib said the Penanti by-election is not an election provided for by the Constitution but a political game being played by the Opposition and the BN did not want to play to their tune.

He declared: “Barisan’s priority is to serve the people and work to revive the country’s economy.”

What political gobbledegook!

Everybody knows that the real reason the Barisan Nasional is not contesting Penanti is that Najib is frightened of “doing a treble” by-election defeat since becoming Prime Minister on April 3, or a fifth Barisan Nasional setback in 15 months since the March 8 political tsunami in last year’s general elections.

MCA, Gerakan and MIC leaders were also in mortal dread of the Penanti by-election especially after their disastrous outing in the recent Bukit Gantang by-election, which caused the Minister in the Prime Minister’s Department, Datuk Seri Nazri Aziz, to say that Umno must go on its own to regain the support of non-Malay voters and not depend on other Barisan Nasional component parties as BN only secured 11% of the Chinese votes and 9% of Indian votes in the Bukit Gantang by-election.

Where are the MCA, Gerakan and MIC leaders to hide their faces if in the Penanti by-election, they did even worse than in Bukit Gantang by-election securing less than 11% of the Chinese votes and 9% of the Indian votes – although Indians only constitute 2.4% of the 15,384 Penanti electorate?

Najib had defined constitutional requirement for a by-election as death or disqualification of an elected representative whether because bankruptcy or criminal conviction.

But this is not borne out by Barisan Nasional’s own record. Just to give one example. In May 1997, BN created two simultaneous by-elections, one parliamentary and one state assembly in Selangor, so that Datuk Abu Hassan Omar could relinquish his post as Minister for Domestic Trade and Consumer Affairs to become Selangor Mentri Besar after Tan Sri Muhamad Muhamad Taib was forced to step down after his RM3 million financial caper in Brisbane, Australia.

Najib is right when he said that there had been one previous instance where BN had not contested in a by-election.

This happened during the time of his father, Malaysia’s second Prime Minister Tun Abdul Razak, in February 1975.

At the time, the DAP MP for Menglembu, Fan Yew Teng, was convicted of sedition in a retrial by the Kuala Lumpur High Court and the government resorted to the unprecedented step of declaring the Menglembu parliamentary seat vacant and a writ of by-election was issued although Fan was appealing to the Federal Court against conviction.

I immediately despatched a letter to Razak on Feb. 20, 1975 protesting against the “usurpation of the parliamentary process by unconstitutional and unparliamentary acts” and urged him as Prime Minister “to uphold the rules of natural justice, accepted form of parliamentary practice and the sanctity of the Constitution by staying the holding of a by-election of the parliamentary constituency of Menglembu”.

Razak replied in a letter dated 23rd February 1975 stating his disagreement with my contention that the holding of the by-election would prejudge Fan’s appeal and concluded:

“7. I resent your insinuation that there is an attempt to usurp the powers of Parliament by unconstitutional and unparliamentary acts having regard to the fact that the Speaker as well as the Election Commission had acted properly and duly in accordance with legal advice of the Attorney-General’s Chambers.”

I had contended 24 years ago that the writ of election issued by the Election Commission for the holding of the Menglembu Parliamentary by-election was improper, illegal, unconstitutional and unparliamentary.

Although Sdr. Fan Yew Tong has been convicted of a sedition charge in the High Court, he has given notice of appeal to the Federal Court, from where there was a further avenue of appeal to the Privy Council.

I had posed the following questions in February 1975:

“Should Fan win in his appeal either at the Federal Court or Privy Council appeal level, how is Fan to be restored to his parliamentary seat of Menglembu, should a by-election be held now causing a new member to be elected?

“Surely, the Elections Commission is run by intelligent men, who can foresee such a absurdity being created. No procedure should create injustices, either to Fan, or to the new member, and this can only be done by waiting until the completion of the entire appeal process.”

When Fan was earlier convicted on the same sedition charge in 1971 (he was then MP for Kampar which he won in 1969 general elections) in the High Court, he was suspended from the House but no by-election was held.

Subsequently. Fan appealed and won at the Federal Court and the Privy Council, with the latter ordering a retrial, and Fan was restored back his Parliamentary seat of Kampar.

By the time of his High Court conviction at the retrial in 1975, Fan had switched constituencies in the 1974 general election and was the MP for Menglembu.

I had questioned the Election Commission why it ignored this precedent set by itself in 1971, and chose deliberately to disqualify Fan in the retrial when Fan was still appealing against his conviction.

However, to demonstrate that the BN was not behind the usurpation of parliamentary privileges and the illegal, unconstitutional and unparliamentary holding of a by-election when Fan was still appealing against his conviction, Razak announced that BN would not field a candidate in the Menglembu by-election.

Nomination of candidates for the Menglembu by-election was held on Feb. 27, 1975 with the DAP candidate challenged by independent candidates.

Three days before the polling on March 15, 1975, the High Court gave a declaration sought by the DAP that there was no vacancy in the Menglembu constituency and stopped the by-election.

There is a striking similarity between the illegal and unconstitutional usurpation of parliamentary process in trying to force a by-election when there was no vacancy in the parliamentary constituency of Menglembu in 1975 with the unethical, undemocratic, illegal and unconstitutional power grab in Perak when there was no vacancy in the Perak Mentri Besar office in February 2009.

All talk about “Barisan’s priority is to serve the people and work to revive the country’s economy” are poppycock when it is Najib and BN who precipitated the three-and-a-half month Perak constitutional and political impasse undermining public confidence in one national institution after another as well as impairing Malaysia’s international image and competitiveness.

Is Najib prepared to emulate his father Tun Razak and distance the office of the Prime Minister from the illegal and unconstitutional power grab when there was no vacancy in the Perak Mentri Besar’s office from February until now?

How can Najib allow the usurper Datuk Zambry Abdul Kadir to re-occupy the Perak Mentri Besar’s office for ten days from May 12 to May 21 after Justice Abdul Aziz Abdul Rahim’s landmark judgment on May 11, 2009 that Datuk Seri Mohd Nizar Jamaluddin is the lawful Perak Mentri Besar, and when the “stay order” of the single-judge Court of Appeal on May 12 did not legitimise Zambry from a “usurper” MB to become lawful “MB”?

The Month of Infamy for Perak and Malaysia has produced two dark and shameful episodes – firstly, the May 7 Day of Infamy when the Perak Speaker, V. Sivakumar was physically dragged out of the Assembly by police officers and goons; and secondly, the Infamy of the “Ten days of May” when a doubly illegitimate Zambry re-squatted in the Perak Mentri Besar’s Office from May 12 to 21, 2009.

I do not believe Tun Razak would have allowed Zambry to act in so utter disregard of all notions of decencies as to squat so shamelessly in the Perak Mentri Besar’s office when he has no legitimacy whatsoever.

Tun Razak would have boldly accepted the reality that after the single-judge Court of Appeal “stay order”, Perak has no Mentri Besar who could occupy the Mentri Besar’s office and would have ordered Zambry to respect the law and decencies and not to continue to act as Squatter Mentri Besar.

Just as Razak decided that BN should not contest in the controversial Menglembu by-election 24 years ago, is Najib prepared to ask Zambry to vacate and to stop squatting in the Perak Mentri Besar’s Office?

Is Najib prepared to end the agony and travails of Perak and the nation caused by the Perak crisis by dissolving the Perak State Assembly and return the mandate to Perakians to elect the state government they want?