Wednesday, February 4, 2009

Making Sense Of The Perak Controversy

Before embarking on an analysis of the state of play in Perak, it would be of value to consider the objective facts:
  • two assemblymen signed undated resignation letters as a condition to their being nominated by their political party for a state election. For this, the party also gave them full support, financial and otherwise. They won their respective seats;
  • the undated resignation letters were submitted to the Speaker of the Legislative Assembly. The Perak Constitution allows members of the Assembly the option of resigning their membership “by writing under his hand addressed to the Speaker”;
  • the party opted to submit the resignations of the two assemblymen. It is not apparent what prompted this;
  • the Speaker has accepted the resignations and communicated the fact of the resignations to the Election Commission. The Speaker has taken the position and ruled for the purposes of the Assembly that the resignations have taken effect and by-elections be held. He will treat the assemblymen as no longer being members of the Assembly for the purposes of proceedings in the Assembly;
  • the two assemblymen dispute the validity of the resignation. They do not contend that the resignations letters were not under their hand. They contend that the resignations were procured through duress; and
  • the Election Commission has decided that the resignations are doubtful and as such not true resignations.
From the above, it could be said that the following questions arose when the controversy first erupted:
  • the legal value or validity of the resignations. There is no authoritative decision of the courts on this point. A 1982 decision of the then Federal Court (Datuk Ong Kee Hui) observed that such resignations could be viewed as being contrary to public policy in view of elections at both the State and Federal level being of individuals as opposed to political parties. A question of honoring the wishes of the electorate, that is the electing of the individual as opposed to the party, arises. The Federal Court did not decide on the point as the Member of Parliament concerned did not seek to invalidate the resignation nor had the Speaker been joined as a party. The point is as such open to argument; and
  • whether the resignation letters were procured under duress,
However, these questions have been overtaken by events, in particular the decision of the Speaker to accept the resignations and give effect to them. The Speaker may be wrong but until he is shown to be wrong through valid process – either in the Assembly (to the extent that such process is available) or through the courts – the Speakers decision must stand.

In this regard, the Election Commission is charged with the conduct of elections. It could be argued that in order to do so, the Election Commission must have the power to determine whether an Election is needed in the first place. Where State and Federal Elections are concerned, this is established by the dissolution of the Assemblies and Parliament respectively. However, where casual vacancies (through death, resignations or disqualifications) arise, the situation is more nuanced.

The Perak Constitution (Article 36(5)) provides that a casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy. Vacancies caused by death and disqualifications are easily established. Where the latter is concerned, the matter is decided by the Assembly itself, which in law is taken to have final say (save where there is a matter of legal interpretation).

In the ordinary course resignations are similarly uncomplicated; the Speaker receives the letter of resignation and communicates the fact to the Election Commission which establishes the vacancy based on the Speaker’s declaration. From this, it is apparent that the vacancy is established by reference to the position taken by the Speaker. This is consistent with the basic principle of parliamentary democracy that it is the Speaker that regulates the assembly.

The question that arises is therefore whether this process is derailed by a dispute as to the validity of the resignation. In my view, it should not be, and the Election Commission must act accordingly. I say this for two main reasons. First, the scheme explained above.

Secondly, it is not for the Election Commission to embark on a fact-finding or adjudicative process as, amongst other things, it does not have the power to do so. In denying the position the Speaker has taken, the Election Commission is in effect asserting that that the Speaker is wrong. The Election Commission cannot do so. If there is a question as to the correctness of the Speaker’s position, then it must be challenged through proper channels.

Seen from this perspective, this unprecedented and very curious action of the Election Commission regrettably raises questions as to its motives. It must be taken to appreciate the precarious position it has left Perak in, one which looked upon objectively appears to have been made more accommodating to the machinations of the Barisan Nasional. I note that by-elections would be inconvenient for UMNO which is scheduled to have its assembly in March. It is as such open to question as to whether the Election Commission has conducted itself in the independent manner the Federal Constitution requires of it.

Where this leaves the Perak Government is an open question. It could seek a ruling of the Court as to the correctness of the decision made by the Election Commission and an order to compel the latter to conduct the by-election. This would be a time-consuming affair and occasion a delay that can only work against the interests of the State. The razor thin margin is undermining of stability and it is more probable than not the attention of those who make up the State government would be focused more on preserving their government than the affairs of the State.

The Election Commission’s stance and the underlying events would afford sufficient cause for the Menteri Besar to request that His Highness the Sultan dissolve the assembly and call for fresh elections. All things considered, this may be the best way to protect the interests of Perak. In these difficult times, governments should be focused on what needs to be done rather than politics.

(Malaysian Insider; 4th February 2009)

MIS

24 comments:

Anonymous said...

Calling for a state election would be the leadership thing to do. The problem is the political implication of a Sarawak state election is called IMMEDIATLY after a Perak election? PR could be disadvantaged by too many election.

This is no less battle royale, street fighting politically and the smart thing to do NOT to avoid a fight even if it is messy.

Anonymous said...

You mentioned you did not understand why the EC did it. Its about money - the two assemblymen are broke to fight a case they may NOT win as you point out here. UMNO cannot be seen to fund these two guys OR the backlash would be impossible NOT to mention the attempt to put a stop to money politic.

The EC did this so the two assemblymen won't just run because they won't fight the case on their own indicating that a higher power is coordinating this which can only be Najib logically.

Anonymous said...

You are a lawyer with a legal opinion and many other legal practitioners may agree with you. But on the other hand, there are also lawyers who have different opinion on the issue.

Like Uncle Karpal said, the EC would have been advised on the legal points by the AG office before making the decision.

So, who's right then?

Shamsul Yunos said...

Malik, I am wondering as to who should challenge the speaker's decision, would it be the two ADUNs, if so, can the EC decide on a by election before the case is decided upon? And declare teh result of the by election valid/not valid based on the court findings, which may come after 60 days given appeal and everything else.

I think the EC chairman's statement inviting legal challenge fromt eh state of PErak is a soudn decision, because the state has more money to embark on this complex legal matter involving constitutional issues. I believe the state Government MUST, start the legal challenge so that the law can be further clarified on the matter for the sake of the people.

In the meantime we hold on to the by election and save a few millions.

I agree that the EC's decision may look like they are overstepping their boundaries but I think the legal advice is for them to invite a court process so that they themselves can better understand the limit and scope of their duties

and you have to admit that the 1982 federal court decision does make it clear that reps must not face the threat of removal from their parties, that is against public policy... of course the exact detail of this case is different and can be used to exclude that precedent but I believe that it is still a very strong and soudn guidance to work with

Shamsul Yunos said...

BTW if you want to read my opinion, which I suppose, represents the other side of the coin, or maybe a different coin altogether, please click through to

http://marahku.blogspot.com/

Antares said...

Najib has had more than 30 years in which to acquire & accumulate political clout within Umno - plus access to a virtually limitlesss warchest, further facilitated by the fact of his now being finance minister. The trail of dead frogs leads straight to a desperate PM-wannabe.

Eric said...

@Shamsul Yunos,

I find it amazingly efficient that the AG would be able to give an opinion on either a bank holiday or in the few hours early Tuesday before the EC's PC. Especially, since we are talking about the same AG who accepted Singapore's ICJ challenge over Pulau Batu Puteh and got trounced at our expense.

I am afraid, the main issue here is beyond legal opinions, which, as you rightly said, are subjective. How to deal with federal institutions, like the EC and the AG, who behave like party coalition members?

BTW, we'll see how penny-wise and pound-foolish this "save a few millions" comment of yours will become when the state assembly is dissolved and we get, not 2, but 59 by-elections. All courtesy of the EC's subjective decision.

Anonymous said...

I do not know much about what is going on but seriously this is a real circus...as irrelevant as my comment may be =)

boon said...

Nice article! I had learn something new today! Thx a lot!

Damansara said...

All these nonsense are Fruits of Anwar's Poisonous Tree.

Why now blame others?

Ikutlah Anwar lagi!!!

Damansara said...

You like it or not, having a rep to pre-sign a resignation letter is an illegal act.

It tantamount to an act of extortion.

Furthermore, in law, the one who gets elected is not the party. It’s the very person whose name appears on the ballot paper.

So, only him – exclusively, have the right to decide on his own action.

As it is an illegal act, the status is deemed to be 'void ab initio' - not binding from the very start.

The question that should be asked is this;

Why does the Speaker accepted the resignation letter knowing fully (he was at the press conference) that both the Assemblymen went missing and cannot be the one sending those letters.

He must at least accept it thru a genuine rep; exactly why the EC accepted their denial letters.

AND SINCE WHEN DOES A FAXED DOCUMENT DEEMED LEGALLY BINDING?

And morally, why the hell does everybody’s making noise now, when all the only noise heard when Saint Anwar announced the Bota defection were strictly joyous hand clapping.

Why are you not clapping now?

Different democracy for different people?

Is this the democracy you are talking about?

Is this the JUST WORLD you were preaching all this while?

Is this PR’s best effort?

It is more like a BADUT SARKAS to me?

No wonder it has NO MORAL

Damansara said...

Why waste time trying to making sense of half truth?

CONGRATULATION TO ALL YOU HYPOCRITES

This is not Democracy

This is Crazy

THANKS TO SAINT ANWAR.

Apalagi berkompanglah!!!!

Aritu suka sangat!!!!

Damansara said...

LISTEN TO WHAT ANWAR'S GOT TO SAY..

And Opposition leader Anwar Ibrahim has accused BN of trying to form the (Perak) government 'by hook or by crook'.

".... more by crook", he told AFP. "We must go back to the people and get a fresh mandate," he said.

ISN'T HIM THAT STARTED ALL THESE NONSENSE.

ENGKORANG NAK PERCAYA MAMAT SODOMI NI LAGI KE?

ALL OUR EFFORT TO GIVE A STRONG MESSAGE TO BN WENT INTO THE DRAIN BECAUSE OF THIS STUPID BASTARD.

Lets stop blaming others.

KICK ANWAR OUT

ChengHo said...

Welcome to politic ,Pakatan was out defeated on it owned games
You should join Pakatan and talk to Anwar to be a candidate for Pakatan election

Leithaisor said...

Malik, you wrote:

The Speaker may be wrong but until he is shown to be
wrong through valid process – either in the Assembly
(to the extent that such process is available) or
through the courts – the Speakers decision must stand.

But Bernama has quoted you thus:


February 04, 2009 19:08 PM
Perak MB Errs In Dissolving State Assembly, Says Lawyer

KUALA LUMPUR, Feb 4 (Bernama) -- Perak Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin has erred in announcing the dissolution of the State Legislative Assembly prior to obtaining the consent of Sultan Azlan Shah, a lawyer said Wednesday.

Malik Imtiaz Sarwar said this is because the power to dissolve the state assembly is in the hands of the Ruler of the state and in this case the Sultan, not the Menteri Besar.

He said the Perak Constitution clearly states that dissolving the state assembly is the prerogative of the Sultan and nobody else has the power to dissolve the assembly.

"It's like the Prime Minister announcing the dissolution of Parliament before obtaining the consent of the Yang di-Pertuan Agong. Likewise, in this case, the Menteri Besar must first obtain the consent from the Ruler before making the announcement," he told Bernama.


Full text at:
http://www.bernama.com/bernama/v5/news_lite.php?id=387678


Big difference between "may be wrong" and "has erred". Perhaps you may want to send some choice words to Bernama.

Malik Imtiaz Sarwar said...

Leithaisor,

I made the point in my posting at a time when the BN had not as yet announced the defections.

The statement in BERNAMA was maede when I was informed that the MB had announced the dissolution of the Assembly in advance of the Sultan decreeing it. The constitution is clear, only the Sultan has the power to dissolve the assembly.

I note however that it is only BERNAMA that carried the announcement by the MB.

MIS

Anonymous said...

It seems event have moved on. What do you think of the right to dissolve parliament VS. the right to form the next govt issue?

Leithaisor said...

Thanks for the clarification; I stand corrected.

Distressed and locked up in a GLC said...

what can you say about today?i was optimistic about change but then it was just taken away..please put something up for me to rationalise the whole thing

flyer168 said...

Dear Malik,

You have put forward the debate & discussed what the logical norm should be...yes the most "Honourable thing to do". But this is UMNO & PM wannabe (or rather the defacto PM wannabe)!

Sad to see this great nation Malaysia administered by the British Tuans, then handed over to the Malaysian TUANS under Bapa Malaysia Tunku Abdul Rahman Putra & his Malaysian cabinet of TRUE TUANS managing the system of Wesminster style Democracy & with the Rule of Law in 1957, getting "Hijacked & Betrayed" by the "Elite UMNO Ketetuanan BEGGARS" in 1969.

For 40 years, instead if teaching their own kind to "Learn to catch their own FISH", they took the easy way out to maintain their "False" sense of Security & Power by using the "Ketetuanan (BEGGAR)" policy - you vote UMNO, we give you "Fish" & the rot set in to what it is today & the beat goes on....!

For the others, "Either you are with us.....or else....you will be "MIA or Eliminated", period !

PM wannabe & his Goons must have used pressure on DYMM with the issue of "rightful Royal Succession", so they got their wish this time!

This great nation, its assets & its Anak Bangsa Malaysia have been abused for the last 40 years by these "Moronic Idiots & their Goons" through "Gutter Politics" & the "Law of the Jungle".

Through "Devine" intervention, UMNO, its Leaders & their Lapdogs are now "Destroying" each other with their "Power, Greed & Henious Crimes".

Our prayers to God Almighty seeking "Truth, Justice, Freedom & Equality" will be answered.

Every new day will be another "New Revelation" to reveal the "Truth" in its Self Destruct motion towards its "Demise".

Just give them enough rope to "Hang" themselves at every turn in their "Final" chapter.

May God bless, guide & protect this great nation, its remaining assets & its Anak Bangsa Malaysia forthwith.

Damansara said...

Raja Petra’s Website is promoting the Rally against the Sultan’s Decision tonight

One of the articles in that website even proclaimed Nizar as a MODERN JEBAT

For me both Anwar and RPK are MENTALLY SICK people

They have been going hand-in-hand for many years spreading lies under the pretext of JUST DEMOCRACY

Today, for me, is the pinnacle of their MISLEADING PROPAGANDA

Their REAL AGENDA is for Anwar to rule this country; BY HOOK OR BY CROOK

SADLY there are many SMART AND BRAINY PEOPLE easily felt to their obvious trap

They became the best platform for both Anwar and RPK to voice their agenda via ‘the End Justify the Means’ MODUS OPERANDI

At the end, these BRAINY & SMART people become the real DISSERVICE to the very democracy they long for

In the meantime, BN continues to RULE comfortably knowing their opposition has LOST THE PLOT completely

A REAL SAD REALITY

sjankan said...

Adalah tidak memadai untuk sebuah negara untuk mempunyai bangunan pencakar langit dan infrastruktur yang canggih sahaja sebagai ukuran kejayaan negara. Apa jua yang berlaku pada hari ini akan tetap menjadi satu peristiwa hitam yang perlu direnungkan. Persoalan yang timbul bagi saya adakah pemerintah sekarang mempercayai akan demokrasi ?

Saya juga tertanya untuk siapa mereka membentuk kerajaan? Untuk rakyat? atau untuk membalas dendam rakyat yang menggunakan hak dalam pilihanraya ataupun untuk membalas dendam pembangkang? Saya terbaca satu komnetar terhadap isu Perak.

Kita harus sedar Kemerdekaan yang kita kecapi hanya sekadar gimik politik sahaja . Apakah erti kemerdekaan? Adakah kemerdekaan bermaksud kejayaan mengusir keluar penjajah asing? ataupun kemerdekaan bermaksud rakyat mempunyai kuasa untuk menentukan kerajaan yang terbaik untuk mereka? Saya mempercayai selama ini , apabila kita mencapai kemerdekaan kita telah memperoleh mandat untuk menentukan kerajaan yang patut mentadbir dan mengurus negara dan pada masa yang sama mampu menjamin hak asasi manusia.

Kejayaan hari ini adalah kejayaan Sultan untuk membentuk kerajaan yang digemarinya dan juga kejayaan Barisan Nasional mempamerkan kuasa dan pengaruh mereka . Memang ternyata benar apa yang berlaku hari ini kita rakyat Malaysia telah tewas dengan kuasa polis dan kuasa politik yang kesemuanya dipusatkan kepada satu parti yang akan dan selamnya mendominasi politik Malaysia.

Bilakah Bumi Malaysia akan mengecapi kemerdekaan ? Bilakah pemimpin Politik akan hormati keputusan Rakyat? atau Ini semua mimpi yang jauh lagi dari kemampuan kita untuk memperoleh?

Anonymous said...

Nizar made a huge mistake in seeing the Sultan on his own. He really should have brought along Karpal Singh.

It is a constitutional crises and the King took a step too quickly. You really wonder what happened at the two hour meeting between Nizar and the Sultan

ampangdude said...

Damansara,

Great comments!

You are absolutely correct and I truly share you sentiments.