Raja Addruse and Ding Jo-Ann on Perak: “It all boils down to our constitutional rights”

posted by din merican—February 13, 2009

www.nst.com.my
February 12, 2009

by *Raja Aziz Addruse & Ding Jo-Ann

WHAT started as a tussle for political power to govern the state of Perak has blown up into a political crisis. At first blush, the request by the incumbent menteri besar to the ruler of the state to dissolve the state legislative assembly seemed to involve a simple exercise of the ruler’s discretion under the state constitution.

Issues involving the people’s rights, particularly constitutional rights, are never that simple, however, and the responsibility put upon the sultan was an unenviable one.

The request for dissolution was prompted by the defection of three members of the legislature from their respective political parties that formed the Pakatan Rakyat coalition government to become independents, which resulted in Barisan Nasional and Pakatan Rakyat each having 28 seats in the 59-member legislature.

On subsequently being informed by the deputy prime minister that BN, with the support of the three defectors, had the majority in the assembly, the sultan, after meeting the 31 state assemblymen, was convinced that the menteri besar had ceased to command the confidence of the majority, and withheld his consent; the menteri besar and the members of the state executive council were asked to resign.

There were angry protests, initially from Pakatan Rakyat supporters who tried to disrupt the swearing-in of the new menteri besar and, later, from BN supporters who denounced Karpal Singh for seeking to challenge the sultan’s decision in court. Karpal and the Pakatan Rakyat leadership were accused of causing racial discord and of being disloyal to the sultan, and all Malays, whatever their political beliefs, were urged to stand united behind the Malay rulers.

There have been emotional and angry public reactions on what is essentially an issue of constitutional law. Whether or not the sultan had acted correctly in refusing Datuk Seri Mohammad Nizar Jamaluddin’s request to dissolve the state assembly and appointing Datuk Dr Zambry Abdul Kadir as the new menteri besar is for the court to decide, if a case is brought before it. It is also for the court to decide whether or not the sultan’s actions can be challenged.

Unless and until declared to be invalid, the decision should be respected. The show of defiance by Pakatan Rakyat was uncalled for. For their part, the supporters of BN and those who accuse the leadership of Pakatan Rakyat of treason, or of trying to create racial disharmony for questioning the correctness of the decision, need to inculcate in themselves a belief in the supremacy of the law and to accept that Karpal Singh and Pakatan Rakyat have every right to take the issue to the courts.

No one exercising his constitutional right of access to the courts should be branded as being disloyal to the rulers or threatened with preventive detention under the Internal Security Act. Was it not the BN government that sought to justify the removal of the personal immunity of the Malay rulers in 1993 on the grounds that no one was above the law?

Leave it to the court to say if Pakatan Rakyat has a case or not. It does no good to the image of this country for Malays to keep on harping about Malay supremacy.

What is the correct procedure that should have been adopted by the sultan to determine the no-confidence claim in order to exercise his discretion? Those occasions in the past where the procedure adopted by the ruler was used have been when a government had yet to be formed. Where a general election has not returned any one party as having a majority, the only means of determining who commands the confidence of the majority, for the purpose of appointing the leader of the new government, is for the head of state personally to interview the returned members to ascertain their views.

That procedure may not, however, be appropriate where there already exists a government. In that case, a motion of no confidence put before the legislative assembly is the traditional method. That is what Pakatan Rakyat contends should have been done before the sultan exercised his discretion. That is the issue the court will have to rule upon.

In all the excitement, little regard has been given to the electorate. Those who voted them in would surely wonder how it is possible for the persons they elected to still claim to represent them in the assembly when they no longer subscribe to the policies and values on the basis of which they were elected. It is not enough that the election process is clean; those who are elected must also abide by the trust reposed in them by the electorate. Otherwise, the boast that we have here “a democracy which is practiced through elections” will become laughable.

In view of the frequency of such occurrences lately, far from seeking a solution, the BN government seems to encourage these crossovers. Getting people to desert their party or to discard their policies is not what they have been elected for. They have been elected to serve the people. That is what they should do.

So far there has been no political will shown to deal with the serious problem posed by crossovers. The frequency with which it has happened recently and the crisis in Perak have highlighted the need for reform. A constitutional law reform committee, to be made up of persons of integrity and good reputation, should be set up to look into the issues involved. It is time to stop this undesirable practice.

*Raja Aziz is a past president of the Bar Council and the Human Rights Society; Ding is a Kuala Lumpur-based lawyer.

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