Perak’s political drama heightens - The Nut Graph

By Deborah Loh
deborahloh@thenutgraph.com

THE political drama in Perak, which has escalated from one height to another, is set to spike tomorrow with an emergency state assembly sitting to vote on two motions related to the state's constitutional crisis.

However, even if the emergency sitting is successful, it would not immediately solve the impasse. It would, in fact, be the latest in a series of planned steps by the Pakatan Rakyat (PR) to turn the matter back to Perak's ruler, Sultan Azlan Shah, in the hopes of forcing a snap poll.

The two motions expected at the emergency sitting are to reaffirm support for the PR's Datuk Seri Mohammad Nizar Jamaluddin as Perak menteri besar, and to seek dissolution of the state assembly.

Speaker V Sivakumar, the DAP assemblyperson for Tronoh, invoked Standing Orders to call for the emergency sitting. As the all-powerful speaker of the state assembly, he is the PR's trump card in the state's political impasse despite the Barisan Nasional (BN) having taken over the state government.

Sivakumar has already flexed his muscles by suspending the BN's Menteri Besar Datuk Zambry Abdul Kadir and his six executive councillors. They will not be allowed to enter the assembly for the emergency sitting. Neither will the three independents who left the PR to support the BN be allowed into the state assembly, as Sivakumar deems their resignations from their state seats effective.

With 10 representatives on the BN's side out, the numbers in the 59-seat state assembly would be in the PR's favour at 27 to 21. The PR's 28th seat is Sivakumar's, who, as speaker, cannot vote.

Zambry with his executive councillors and special advisers

Back to the palace

Barring any attempts of forced entry by Zambry and the BN excos into the state assembly house, and any potential ruckus or situation that may thwart the emergency sitting, Nizar will quite easily be given the vote of confidence as MB.

Following that, two scenarios could take place.

One, Nizar could quickly seek an audience with Sultan Azlan to request the dissolution of the assembly.

Two, the impasse would continue because Zambry and the BN would certainly not take affirmation of Nizar as the legitimate MB sitting down.

Nizar may opt not to hurry to the palace seeking the assembly's dissolution, but be content to let the deadlock and the uncertainty drag on until the assembly's next sitting, which must be called by May.

The limbo could be intentional to force Sultan Azlan to call both Zambry and Nizar for an audience to decide a way out of the situation.

"Under the present circumstances, the ruler could call both parties to the dispute, he could consult both menteris besar and ask them if they feel fresh elections would be the best way out," says Mohamed Asri Othman, the Perak Parti Keadilan Rakyat (PKR) legal adviser.

"The sultan cannot decide alone; he must take into account relevant factors through listening to both sides," Asri adds.

Appealing to the sultan's discretion

It appears that the latest situation is being engineered by the PR, which has the upper hand in the house through the speaker. The intention would be to appeal to the sultan's personal discretionary powers that he has under Article 18, Clause 2 of the Perak Constitution.

Such discretion is applicable to two functions, namely, the appointment of a menteri besar, and the withholding of consent to a request for the dissolution of the state legislative assembly.

According to the clause, the sultan's personal discretion is allowed when deciding whether to dissolve the assembly upon request by the menteri besar.

This is consistent with Article 16(6) of the state constitution, whereby the MB can request the ruler to dissolve the assembly. This is what Nizar tried to do earlier, but failed.

There is another provision that touches on dissolution as well: Article 36(2) which simply states, "His royal highness may prorogue or dissolve the legislative assembly".

Although Article 36(2) does not specify any conditions (such as a request by the MB) for the dissolution, it is still deemed by some legal experts to be discretionary power subject to Clause 2.

"'Dissolve' as stated in 36(2) is discretionary according to the wording of Clause 2, where consenting to dissolution is based on request," says Universiti Teknologi Mara's constitutional law expert Professor Dr Shad Saleem Faruqi.

"As a general rule, the sultan acts on advice except for areas where discretionary power is mentioned, such as under Clause 2, where a request for dissolution must be made," he explains.

Says Mohamed Asri: "As a constitutional monarch, he has to act on the advice of the menteri besar. If the ruler decides unilaterally, then he would be an absolute monarch."

Based on their explanations, this means the ruler can still only decide whether or not to dissolve the assembly, upon on the request for dissolution from the menteri besar. It does not mean he can decide on his own, independent of any request, to dissolve the assembly.

Nizar In this context, if Nizar succeeds in being affirmed as MB in the emergency sitting tomorrow, he would have legitimate grounds to seek an audience with the sultan.

Professor Dr Abdul Aziz Bari of the International Islamic University says the sultan's role is as a facilitator of democracy.

"The sultan, as protector of the constitution, [has] to facilitate democracy and not otherwise. He needs a government that has a clear mandate, so in dissolving the assembly, he would be assisting democracy to establish that clear mandate," says the law lecturer.

Obstacle course

There are kinks in PR's plan, though, and that is the suit Nizar has filed against Zambry to declare himself as the legitimate MB.

It's not inconceivable to think that the sultan might prefer to wait for the court's decision before deciding to grant either side, or both, an audience to discuss the assembly's dissolution, or the next course of action.

The BN, too, is planning a counterstrike by seeking the opinion of a Queen's Counsel in London on the validity of Zambry's and the excos' suspensions, and Nizar's suit against Zambry.

As inevitable as snap polls look, the road to elections is still littered with many mines that the PR must dodge