To me, an honest assembly person who has internal problems with his or her respective party can decide to quit the party. But if he or she decides to become independent and support one side, then something is terribly wrong.
Especially with no particular good reason except to cite infighting within their former party. That the worst cliche ever for an assembly person who 'jumps'. In this case, the action of Sapp from Sabah which quit BN but did not support either BN or the opposition is much better and honorable to me.
BN cannot form the Perak government yet as the case of the pre-signed resignation letters and the EC's position has been brought to court. The status quo of the present state government and those state assembly persons have to be maintained until a decision has been made by the courts.
That can take time to resolve like in the Semangat 46 defectors’ case in 1992: Because the status quo remains, the menteri besar of Perak can ask for the dissolution of the state government from the sultan as it is in his power to do so and hold a snap election.
BN will have to try to overturn the High Court’s decision in the Semangat 46 defectors’ case in 1992 in order to block such a snap election.
If the sultan agrees to a new BN government while the case is still in court, it is an awkward situation because though the sultan cannot be sued for performing his official functions, for me it still feels like the sultan has premeditated the court.
Worse, if the courts rules in favour of two state assembly persons even though a precedent has been set, it still feels like the sultan had indirectly influenced the case concerned. The name of the sultan may be tarnished.
This also brings to mind whether the show of support by these 28 BN plus three ‘independent’ state assembly persons outside of the state legislature can be considered as proof that the current MB has lost the confidence of the majority of the house.
In Sarawak’s first chief minister Stephen Kalong Ningkan's case, the term 'confidence' and 'support' were distinguished [1966] 2 MLJ 187, [1967] 1 MLJ 46. Harley AG Chief Justice held that 'confidence' was a term of art, and the existence of confidence was to be tested on the floor of the legislature.
However in the case of Datuk Amir Kahar v Tun Mohamed Said Keruak [1994] 3 MLJ 737, the judge made no distinction between 'confidence' and 'support' and held that;
‘.... Once a chief minister, in fact, knows that he has lost the confidence of a majority of the members of the assembly, he should not wait for a vote of no confidence to be formally tabled in the assembly but should immediately take the honourable way out by tendering the resignation of his cabinet...’
As it is now, the sultan have agreed to a power transfer and has direct Nizar to resign. If Nizar disagrees, the sultan, as said in his statement, will consider the MB’s seat as vacant.
With respect to the sultan, I do not think that His Royal Highness has the power to consider such a thing because this would mean that the sultan can indirectly 'sack' an MB, something unheard of before.
The only option open after the sultan has directed the MB to resign is that Nizar resigns as ordered, or a vote of no confidence is made towards the MB at the next state legislature's sitting.
If none of the above happens, then an impasse or constitutional crisis is afoot as per the case Ningkan in 1966.
As Nizar has decided not to resign, this case is eerily similar to the Sarawak case in 1966. Ningkan had then refused to resign after being told to do so by the Yang Dipertua Negeri Sarawak. He goes further by not calling a sitting of the state legislature so a vote of no- confidence could be made against him.
The federal government’s attempt to dismiss Ningkan via the governor was held unlawful by the High Court in Stephen Kalong Ningkan v. Tun Abg Haji Openg & Tawi Sli [1966] 2 MLJ 187.
The federal government then declared an emergency in Sarawak and introduce to the state via parliament the power for the governor to summon a meeting of the state legislature without the advice of the chief minister. A vote of no-confidence was then passed against Ningkan.
He challenged it all the way to the Privy Council but lost. Would a similar thing happen in Perak? It could. Precedent wise, this is the only legal way out for Perak in the event of a constitutional crisis.
Today, a new MB may be installed by the Sultan of Perak. Constitutionally speaking, I do not think that such installation is valid. Its either that Nizar resigns or calls for an assembly sitting so that a vote of no-confidence could be declared. Neither of which are likely to happen. It is a stalemate.
The defection scenario was, in fact, started by Umno who wanted to form a coalition government with PAS after the 12th general election. It was then fueled further by Anwar Ibrahim's statement of taking over the federal government by Sept 16, 2008. I have to reluctantly agree with Taib Mahmud when he said ‘You reap what you sow’.
I was saddened with the the decision by the PR coalition to hold a rally in Ipoh last night. They are making it easier for the federal government to declare an emergency, not only in Perak but for the whole country. History has shown the extent to which BN will go to retain and take power.
PKR has to take heed of what has transpired and weed out all members whose loyalty are doubtful. Please do note that most of the Malay members in PKR were from Umno and their loyalty is in doubt especially those who did not join PKR after the 1998 aftermath but only joined recently.
As to the Sultan, I hope HRH would agree to postpone the installation of the new MB until Nizar agrees to resign. Past legal precedents have shown that HRH may have erred in considering the MB’s seat vacant.
It will tarnish HRH’s good standing among Malaysians as a legal expert if a new MB is sworn in. I urge HRH to please consider.
Again, it seems that the good name of the sultan is currently in the hands of Nizar. I urge Nizar to resign gracefully. It won’t do politically to go against the wishes of HRH for this will only inflame the Perakians and divide them further.
Such an action may be construed as being disloyal and this will surely effect other PR government in other states. We can still fight another day...
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