Understanding the legal and constitutional issues in the Perak crisis 6 February 2009

The state of Perak has now descended into a full blown constitutional crisis, with it having two Mentri Besar. The legitimate Mentri Besar of Perak, Mr. Nizar has refused to resign, preferring instead to ‘derhaka’ to the Sultan, so to speak. At the same time, Mr. Zambry of Barisan Nasional has been appointed as the Mentri Besar.

Constitutional experts have given their opinions on the issue and it basically boils the following points:

1) Whether the undated signed resignation letters from the three BN-friendly independent members are legal.

2) Whether the Elections Commission has the jurisdiction and the authority to decide on the legality of those resignation letters.

3) Whether the Barisan Nasional truly has the majority bearing in mind the disputed nature of three BN-friendly independents.

4) Whether HRH the Sultan of Perak has the authority to decide that Mr. Nizar no longer ‘commands the majority support’ of the state assembly without having a vote of no-confidence motion being passed in the assembly.

5) Whether HRH the Sultan has the authority to dismiss Mr. Nizar when he refused to resign from his post as Mentri Besar.

In relation to point no. 1, my view is that undated signed documents are valid. As I have argued before:

Saya pernah mengendalikan sebuah kes di mana pihak lawan membantah keesahan sekeping cek yang telah ditandatangani. Pihak lawan mendakwa bahawa beliau telah menandatangani cek kosong yang kemudiannya diisi oleh anakguam saya. Bagi membalas dakwaan ini, saya berhujah bahawa apabila pihak lawan menandatangani cek tersebut, beliau telah memberikan kuasa kepada anakguam saya untuk mengisikan jumlahnya. Maka beliau tidak boleh kemudiannya mendakwa bahawa cek tersebut tidak sah. Saya menyokong hujah saya dengan beberapa kes yang telah diputuskan sebelum itu (case laws).

You can also read renowned lawyer Mr. Tommy Thomas’ view on the matter.

However, for the remaining points mentioned above, I am not a constitutional law expert, as such I think it is best if I leave it to those who are:

1) The Rule of Law, Tengku Razaleigh Hamzah:

Similarly, the Constitution provides for a definitive way to test if the Chief Minister or the Prime Minister commands a majority in the dewan or in Parliament, as the case may be. We put the question to a vote of no confidence on the floor of the Dewan. Only the answer of the assembly counts. It doesn’t matter how many sworn statements, defections, press conferences, and declarations you have, nor what forms of advertisement, display, inducement or force you bring to bear on the question.

2) Perak: A Constitutional Crisis, Mr. Malik Imtiaz Sarwar:

There is precedent. The Federal Court had in 1966 (Stephen Kalong Ningkan) determined that a similar provision of the Sarawak Constitution required there to be a vote of no confidence taken in the assembly before the chief minister was obliged to resign. The decision was based on several key factors that I believe to be relevant to this discussion.

3) The Real Question on Perak, Mr. Amer Hamzah Arshad:

The question then is: who decides whether the MB ceases to command the confidence of the majority of the members of the State Legislative Assembly? Should it be the Sultan or the State Legislative Assembly? How and where should such issues be decided?

The answers to these questions are obvious. Matters of grave importance that affect the interests of the State should be decided in the hall of the State Legislative Assembly, NOT along the corridors or halls of the palace.

Read the above views to fully understand the legal and constitutional issues in Perak.