Saturday, February 20, 2010

MB vs MB

I've been wanting to do this for some time, but never got round to doing it until yesterday. I downloaded the Perak State Constitution and read it. OK, I didn't read all of it, since it is a lengthy document (~70 pages) filled with legal language, which tends to be convoluted in its attempt to be precise. But I did read the first half of the document, which contains the important and relevant sections that were the points of contention in the recent Zambry vs Nizar case. I wanted to read and interpret for myself the Constitution in order to examine the Federal Court's decision in Zambry's favour.

The following are the two articles that were the main bones of contention in the court case. The bold text are those that I think are the focus of the argument.

Article 16(6):
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.

Article 18(2):
His Royal Highness may act in his discretion in the performance of the following functions (in addition to those in the performance of which he may act in his discretion under the Federal Constitution) that is to say-
(a) the appointment of a Mentri Besar,
(b) the withholding of consent to a request for the dissolution of the Legislative Assembly,
(c) the making of a request for a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Highnesses or religious acts, observances or ceremonies,
(d) any functions as head of the Muslim religion or relating to the custom of the Malays,
(e) the appointment of an heir or heirs, consort, Regent or Council of Regency,
(f) the appointment of persons to Malay customary ranks, titles, honours and dignities and the designation of the functions appertaining thereto,
(g) the regulation of royal courts and palaces.

Here are my comments and observations:

1. The Federal Court judges ruled on Article 16(6) that if the MB loses the confidence of the majority of the Legislative Assembly, he automatically has to resign. Their interpretation of the phrase "
he shall tender the resignation" was that it is mandatory and automatic, i.e. whether he likes it or not, the moment he loses the confidence of the majority.

2. The Federal Court judges interpreted the Perak State Constitution purely on the letter of the law. I agree with their interpretation of Article 16(6) in this case. It's just too bad that the spirit of the law got sidelined, and the principles of democratic government could not (or, would not) be addressed by the court. Could the five judges have gone the extra mile and tempered their judgment with the overriding principle of democracy? Did they deliberately confine themselves to the narrow scope of the letter of the law? Or, were they confined by external forces?

3. I cannot find any article or clause in the Perak State Constitution that defines how the MB's command of the "
confidence of the majority of the members of the Legislative Assembly" is determined. Perhaps some more learned folks out there can help me on this. The Federal Court judges said that it was not absolutely necessary for the Legislative Assembly members to cast their vote of confidence in whichever MB or party. The "confidence of the majority" could be determined by unspecified "extraneous" means. I wonder what those means are.

4. The only other alternative to automatic resignation is for the MB to request His Royal Highness to dissolve the Legislative Assembly and, in effect, call for fresh elections. However, Article 18(2)(b) states that His Royal Highness can refuse to dissolve the Assembly. It is noted that His Royal Highness does not have the power to directly dismiss the MB at any time.

5. So, the MB has only two options, which are not really options at all, because he has no choice in the first, and His Royal Highness can refuse the second. Thus Nizar was removed from office, not by direct sacking by His Royal Highness, but by His Royal Highness' refusal to dissolve the Legislative Assembly.

6. In the final analysis, there are two conclusions. Firstly, Pakatan Rakyat came into power in Perak by the people's choice in the March 2008 General Election. Secondly, Barisan Nasional came into power (or rather, took over) in Perak through the defection of three of the ex-Pakatan assemblymen in February 2009. That's katak (frog) politics for you. Oh, I should add that some of the defections occurred under dubious circumstances. You go figure.

By the way, Article 29 says "The Legislative Assembly shall consist of fifty-two elected members." However, the current Perak Legislative Assembly consists of 28 BN, 28 Pakatan and 3 BN-friendly independent assembly members. This makes a total of 59, which is seven more than the 52 members stated in Article 29. Am I missing something here? Am I referring to an outdated version of the Constitution?

Download a pdf copy of the Laws of the Constitution of Perak here.

See a chronology of the Perak political upheaval here.