Sultan’s decision sparks debate

By Debra Chong-The Malaysian Insider

KUALA LUMPUR, Feb 5 — The Perak Sultan’s decision today in asking for the Mentri Besar Datuk Seri Nizar Jamaluddin’s resignation and denying consent to dissolve the state assembly has become the subject of legal debate among experts here.

“The problem in Malaysia is that the law is not allowed to take its course,” Abdul Aziz Bari, a law professor at the International Islamic University told The Malaysian Insider this afternoon.

He explained that while it is the Sultan’s “prerogative” to say “Yes” or “No” to a request to dissolve the state assembly and pave the way for fresh elections, the Sultan should not insist on the resignation of his appointed MB until it is clear he no longer holds the majority support of the state’s lawmakers.

“I think the Sultan has made a mistake,” said Abdul Aziz.

He explained the need to clear the disputed status of the three assemblymen for Behrang, Changkat Jering and Jelapang who yesterday announced their support for the Barisan Nasional (BN) coalition after having left the Pakatan Rakyat (PR) coalition to be independents.

Abdul Aziz said the courts must make a decision before a special sitting of the state assembly can be held to table a motion of no-confidence against MB Nizar.

Only then can the Sultan insist on Nizar’s resignation, paving the way for the BN’s takeover of the state government.

Human rights lawyer Malik Imtiaz Sarwar cautiously shared Abdul Aziz’s view.

He observed that the law states the ruler must be convinced the incumbent MB no longer commands the majority support of the state assembly.

But, he added the law was vague on how the ruler is to arrive at that conclusion.

“The Constitution only talks about the lack of confidence and does not talk about how it is to be manifested,” Malik said.

“The central question is whether the Sultan is in a position to be sure that the MB no longer has the confidence of the majority of the House,” he added.

He noted that conventionally, the state assembly can take a vote of no-confidence against Nizar, such as federal Opposition Leader Datuk Seri Anwar Ibrahim attempted in Parliament against Prime Minister Datuk Seri Abdullah Badawi late last year.

However, there may be other unconventional methods to convince the Sultan of the lack of confidence in Nizar.

“For example, if a big enough of the majority assemblymen meet him en masse to declare they no longer support the MB and he is convinced.

“In that scenario, the MB has no option but to tender his resignation,” said Malik.

He noted the 31-member delegation of BN and independent assemblymen who met up with Sultan Azlan Shah earlier this morning seems to have effectively convinced the ruler who was previously placed in a very difficult position.

But, Malik noted too that the political events in Perak which have been unfolding in such rapid-fire succession, may have been portrayed incorrectly.

He noted that it was complicated by the PR government asking the Sultan to dissolve the Dewan Undangan Negeri, leading to the messy deadlock between the PR and BN coalitions.

“It could be said there is no situation of no-confidence here because of the dispute over the two seats,” Malik said.

He added that Datuk Seri Najib Razak’s 31-assemblymen march to the Sultan for a show of no confidence against MB Nizar could not be accepted in the current political landscape.

“A vote of no-confidence can only be taken by people who are legitimately entitled to vote, meaning people who are still assemblymen,” he clarified.

“As such, the legal basis of the Sultan’s directive may not be found,” he added.

Malik agreed with Abdul Aziz for the status quo to remain until the courts have decided whether the Behrang and Changkat Jering state seats are vacant in line with the speaker’s order recognising the pre-signed quit letters of their incumbents Jamaluddin Mohd Radzi and Mohd Osman Mohd Jailu respectively.

“If the court decides in favour of the speaker, then everything would have to be unwound,” he remarked.

Likewise in the case of the Election Commission which on Monday denied the speaker’s call for by-elections in Behrang and Changkat Jering, Malik states that the Sultan does not hold the authority to conclude on the validity – or invalidity – of the PR-led state government.

“Keeping in mind that this is not a conventional situation of a no-confidence vote, that this is a crossing over, and that two seats are in dispute, the question whether the Sultan can direct the resignation of the MB or otherwise does not arise because respectfully, he does not have the power to do so,” Malik said.

He is alarmed at the pace at which the police are acting in Ipoh, even moving to surround the state secretariat building and ordering the incumbent government workers out for a BN takeover.

“The law enforcers are now enforcing rules untenable to the law. Where is the authority coming from,” Malik questioned.

He is worried the Perak crisis may point to a bigger crisis for Malaysia next month when DPM Najib is set to succeed Abdullah as Prime Minister after the Umno party elections.

He noted that while the BN may win in reclaiming Perak, it will affect its performance in the long run.

“If the Perak scenario is replayed at the federal level in favour of the Pakatan Rakyat, there is a high possibility of a similar outcome,” said Malik.