The Perak Ruling Is Not As Clear-Cut

A Kadir Jasin

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[UPDATE, May 14] – REJECTING claims that BN was "afraid" to fight snap polls in Perak, the Prime Minister today said he was willing to hold talks with Pakatan Rakyat to resolve the Perak crisis.

"There should not be pre-conditions as it (the meeting) should be quite open in order (for us) to explore (all) possibilities," the Malaysiakini quoted him as telling journalists in Putrajaya.

"I have said the number one principle must be mutual respect for one another. Number two, we have to follow rules and regulations inside the Dewan and outside the Dewan," he added.

[LATEST] -- PAKATAN Rakyat's defacto chief, Anwar Ibrahim said the PR is willing and ready to meet MohdNajib to resolve the Perak political crisis although the coalition prefers a fresh election, according to The Star SMS service.

[Original Posting]

POLITICS and law are complicated matters. And when the two meets, the complexity can be beyond the ability of ordinary mortals to comprehend.

Thus the view that the May 11 Kuala Lumpur High Court ruling confirming Mohammad Nizar Jamaluddin as the Menteri Besar, solves the Perak political crisis could be simplistic and misguided.

Already the Court of Appeal has granted a stay of execution pending an appeal by Dr Zambry Abdul Kadir.

And since we’re discussing a subject matter that involves the Courts and the Palace, I appeal to all debaters to be absolutely careful.

The implications of the ruling may not as clear-cut as some people think. Unless all parties agree to the immediate dissolution of the State Legislative Assembly, the crisis could drag on.

What the Court did was to grant Mohammad Nizar a declaratory relief that he is still and was Menteri Besar at all material times. A declaratory judgment is the judge's determination of the parties' rights under a contract or a statute often requested in a lawsuit over a contract.

The governing theory, according to law books, is that an early resolution of legal rights will resolve some or all of the other issues in a lawsuit.

Many outstanding matters have to be sorted out before the real issue, which is the long-term stability of the state, is resolved.

To begin with, it is natural for the Barisan Nasional to appeal. The Court, in ruling in favour of Mohammad Nizar, had ordered Dr Zambry to show cause and give information under what policy, power or authority he allegedly held office and exercised the responsibilities, functions and duties as Mentri Besar.

The Judge’s instruction in fact compels Dr Zambry to appeal in order to answer the above questions.

Mohammad Nizar has several options. But his immediate reaction, according to Press reports, was to call for the dissolution of the State Assembly for which the consent of the Sultan of Perak is needed.

This, however, could contradict the spirit of the Court ruling that gives authority to the State Legislative Assembly to determine the legitimacy of his government and the confidence or the lack of it in him.

The Judge, Justice Abdul Aziz Abdul Rahim, among other things, ruled that Mohammad Nizar, once appointed Menteri Besar, was answerable only to the State Legislative Assembly. The Judge clearly stated that the Sultan of Perak had no right to dismiss him.

“Based on democratic practice, the vote of no-confidence should be taken on the floor of the assembly and only that way, he (Mohammad Nizar) could be forced to resign.

“(Otherwise,) how could Nizar lose confidence on the purpose of Article 16 (6) of the Perak Constitution?” the Judge said.

Article 16 (6) states that if the Mentri Besar ceases to command the confidence of the majority of the members 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.

Going by the spirit of the court ruling and the State Constitution, Mohammad Nizar should go back to the State Assembly to face a vote of no-confidence.

With 28 members on his side against 31 on the side of the BN, he is doomed unless miracles happen. A return to the Assembly may prove that he actually “ceases to command the confidence of the majority of the members of the Legislative Assembly.”

Even if he loses the confidence vote, there’s no guarantee that he can force the dissolution of the State Assembly. The BN can and may go to the State Assembly to seek a mandate to lead the state as it has the majority.

That’s the reason behind Mohammad Nizar’s insistence on seeking the Sultan’s blessing to dissolve the State Legislative Assembly.

But will the Sultan risk making another decision after his earlier decree to allow the BN to form the government had proven to be problematic and unpopular?

Thus the most appropriate move is for Mohammad Nizar to brave the odd and put his fate in the hands of his peers in the State Legislative Assembly.

The mistake of the BN was it failed to table a confidence motion when it wrested power from the PR in February. Had that been done, the legitimacy of its rule might have been unequivocally established.

Would Dr Zambry dare or is able to convene the Assembly and table a confidence motion now that the BN controls the House?

For the immediate future, it appears that the situation in “the land of grace” (Darul Ridzuan) may not be as graceful and blessed as should be.

No sane investors, local and foreign, would want to stake their luck and money until a stronger government emerges.

It will take a while before certainty returns and, in this context, a fresh election may yet be the best solution to end the logjam once and for all.