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(Readings) Perak, A Constitutional Crisis February 6, 2009

Posted by elizabethwong in Current Affairs, Democracy, Malaysia, Politics, Readings.
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Perak, A Constitutional Crisis
Malik Imtiaz Sarwar 

Now that the dust is settling, it is becoming clearer what it is that took place in Perak over the last twenty-four hours. My respectful view is that His Highness may have acted erroneously in directing the resignation of the Mentri Besar.

As always, it will be useful to consider the objective facts. They are as follows:

  • His Highness, the Sultan of Perak, granted audiences and in doing so was made to understand that the majority of the members of the Legislative Assembly no longer support the incumbent Mentri Besar. Of these, three memberships are disputed in view of letters of resignation having been tendered to the Speaker. The Speaker has taken the position that the letters are valid and as such the two members are no longer members. Further, legal proceedings are being contemplated
  • excluding the three disputed memberships, both the Pakatan Rakyat and the Barisan Nasional each hold influence over twenty-eight members
  • twenty-eight members have indicated in private to His Highness that they no longer have confidence in the incumbent Mentri Besar. With the three disputed memberships, this number increases to thirty-one
  • no vote of confidence has been moved at the Assembly
  • the incumbent Mentri Besar made a request for dissolution of the Assembly. This request was not made on the basis that the majority of members had lost confidence in the Mentri Besar. Rather, it was made on the basis that in the circumstances it might be appropriate for fresh elections to be held in the State
  • on 5th February 2009 His Highness refused the request and directed the Executive Council to resign. From a statement issued by the palace, this directive was based on His Highness having refused the request for dissolution.
  • crucially, the directive was made in accordance with Article 16(6) of the Perak Constitution. This article provides that where a request for dissolution is made as a consequence of the Mentri Besar ceasing to command the confidence of the majority of the members of the Assembly and His Highness refuses, the incumbent Mentri Besar must tender the resignation of the Executive Council.

From the above, it is apparent that His Highness considered the situation to be one in which the Mentri Besar had ceased to command the confidence of the majority of the members. In doing so, His Highness accepted the three disputed members as still being members of the Assembly and as such approached the situation on the assumption that the Barisan block outnumbered Pakatan by three instead of one. It must be borne in mind that:

  • as noted above Article 16(6) is specifically directed to a no-confidence scenario, that is the incumbent Mentri Besar can seek the dissolution of the Assembly upon his having ceased to command the confidence of the majority
  • Article 36(2) however provides more generally that His Highness has the power to dissolve the assembly. It is clear that this provision is aimed at allowing His Highness to dissolve the Assembly for other reasons thought to be appropriate
  • as a matter of law His Highness is empowered to do what is permitted under the Perak Constitution and the Federal Constitution. This is the essence of a constitutional monarchy
  • the Perak Constitution does not empower His Highness to dismiss the Mentri Besar. The manner in which the Mentri Besar is to be removed from office is as provided for under Article 16(6), through a refusal to dissolve the Assembly at the request of the Mentri Besar when the Mentri Besar has ceased to command the confidence of the majority of the Assembly.

It is apparent that His Highness had moved on the assumption that the request for dissolution was prompted by the Mentri Besar having ceased to command the confidence of the majority. This may have been based on a misapprehension of the situation and the appeal to the Sultan to dissolve the Assembly for reasons other than confidence. If so, then the directive to resign was arguably not tenable.

However, it could be said that all things considered His Highness had come to the conclusion that in any event the Mentri Besar no longer commanded confidence. In this context, the central question is whether His Highness was empowered to conclude that the incumbent Mentri Besar no longer commanded the confidence of the Assembly without there having been a vote of no confidence.

There is precedent. The Federal Court had in 1966 (Stephan Kalong Ningkam) 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. These were:

  • the Sarawak Constitution did not empower the Governor to dismiss a Chief Minister
  • the phrase “confidence of the majority” was a term of art and could be read as implying the need for a vote of confidence or a vote on a major issue. The Court took into consideration the fact that the Sarawak Council Negri should, in principle, manage its own affairs.
  • no vote had been taken in the Council Negri and instead the Governor had come to his conclusion based on extraneous matters, particularly confidential letters. The Court observed that members expressing a view outside the Council Negri might very well take a different position in it when under the scrutiny of the public. This was of particular significance as out of the forty-two members of the Council Negri only twenty-one had indicated their not supporting the incumbent Chief Minister.

It could therefore be credibly argued that the Perak Constitution requires the tabling of a vote of confidence in the circumstances. The factors considered by the Federal Court have great significance to the scenario at hand, one as ambiguous as that which the Federal Court was faced with in 1966.

Much will now depend on what the incumbent Mentri Besar does. In Stephan Kalong Ningkam, the Chief Minister concerned took it to court and won. The Federal Court declared the Governor as having acted unconstitutionally and the dismissal of the Chief Minister invalid. Mohamad Nizar could attempt the same course.

It would be regrettable if the situation were forced to escalate to that level. Litigation of that nature, any nature for that matter, will be disruptive at all levels. With the Barisan Nasional moving in already though, it seems that there is little choice in the matter. Walking away is simply not an option that the constitution and the people and democracy will allow for.

In the meanwhile, we will have to buckle in for what has become a full-blown constitutional crisis.

(Malaysian Insider; 6th February 2009)

Coup d’etat in Perak February 6, 2009

Posted by elizabethwong in Current Affairs, Democracy, Human Rights, Malaysia, Politics.
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As of this morning, PR is still the legitimate government in Perak.

However since yesterday, in what was shocking to many, the State Secretary, without any legal basis, usurped power and barred PR from entering the state building. The Federal Police joined in to cordon the building. 

The Sultan has unfortunately chosen to act ultra-vires to the Perak Constitution. In any ordinary circumstance, HRH should have followed the letter of the law and either agree to dissolve the state assembly, or allow for a special session of the assembly.

HRH does not have the power to dismiss the Menteri Besar or the Executive Council. As a former Lord President, HRH surely would know the limits of his power. 

Even if BN has the numbers (and this is contestable), surely they would have some semblance of following what is clearly outlined in the Constitution? Or are they that uncertain themselves too once everyone is brought to the floor of the state assembly? Haste somehow has illegitimacy smeared all over this.

MB Nizar got this point loud and clear during his thunderous speech last night, that the new BN state government will be a Kerajaan ‘Haram‘.

At the very least, the Protocol section got this right. The invitation to the illegal swearing in of the ‘new’ Menteri Besar to one of the PR reads as below:-

excoperak

Yep. YB Tai (below, right) is still recognised as one of the PR Executive Councillors at Lou Wong restaurant last night.

elintai

Perak Speaker files in court February 5, 2009

Posted by elizabethwong in Current Affairs, Democracy, Human Rights, Malaysia, Politics.
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8 comments

3:00 pm

Sultan Azlan Shah asks MB Nizar to step down and hands over Perak to Najib and BN. 

11:55 am

Perak speaker V. Sivakumar has just left the High Court after applying to the court to declare the resignation letters of the three assembymen as valid and, therefore, their seats vacant. (The Star)

Anwar Ibrahim and Pakatan leaders will meet in Ipoh at 3 pm to show their support to MB Nizar. The people will converge at the MB’s residence in the centre of town Ipoh Stadium by 7 pm.

Words of wisdom February 5, 2009

Posted by elizabethwong in Current Affairs, Democracy, Human Rights, Politics.
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5 comments

Under normal circumstances, it is taken for granted that the Yang diPertuan Agong would not withhold his consent to a request for the dissolution of Parliament. His role is purely formal.

HRH Sultan Azlan Shah, Constitutional Monarchy, Rule of Law and Good Governance: Selected Essays and Speeches, Thomson Sweet & Maxwell Asia, 2004

HRH’s online guestbook February 5, 2009

Posted by elizabethwong in Current Affairs, Democracy, Human Rights, Malaysia, Politics.
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13 comments

A resourceful blogger, Syahredzan Johan, has found a guestbook for HRH Sultan of Perak.

Pleas From The Subjects

 4 February 2009

Filed under: Politics — Syahredzan Johan @ 4:10 pm 
Tags: 

As it stands, the final decision rests on His Royal Highness Sultan Azlan Shah, the Sultan of Perak.

If he allows the state assembly to be dissolved, it will give the people a chance to choose their representatives again. If he does not, Barisan will form a new Perak government.

At this point, it is out of anyone’s hands. But in this feeling of helplessness, Malaysians have refused to give up. They hope that HRH will listen to the voices of the people, yet they have no way of conveying it to him. So what do they do? They turn to his website.

Yes, if HRH was to visit his web guest book, he would see the messages left by Malaysians from all walks of life pleading him for one very simple thing; to dissolve the Perak state assembly.

You can view HRH’s guest book here.

Ball in Sultan’s Court February 4, 2009

Posted by elizabethwong in Democracy, Politics.
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18 comments

Updated:

1900 – Sent sms to MB Nizar “This is the beginning of a long battle.”

1846 – Managed to get hold of one of the PR ADUNs, Chang. “You are still the ruling party until the Sultan decides. Fight til the end…” I told him.

1800 – MB Nizar left the palace. Najib on air with the 3 ‘independents’. 

1725 – Tai, Exco member in Perak picked up the phone and said they were still in the palace.

“Our 29 state assemblypersons are united and unanimous in wanting a snap poll to be held.

“We want to see a fresh mandate to obtain a bigger majority so that we don’t face further disturbance from BN.” (Malaysiakini)

Mohamad Nizar arrived at the Kinta palace at 3.50pm.

The ball is in the Sultan’s court. Will he delay until BN gets the numbers or will he listen to MB Nizar?

Ball in Sultan’s Court February 4, 2009

Posted by elizabethwong in Democracy, Politics.
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1 comment so far

“Our 29 state assemblypersons are united and unanimous in wanting a snap poll to be held.

“We want to see a fresh mandate to obtain a bigger majority so that we don’t face further disturbance from BN.” (Malaysiakini)

Mohamad Nizar arrived at the Kinta palace at 3.50pm.

The ball is in the Sultan’s court. Will he delay until BN gets the numbers or will he listen to MB Nizar?

By-elections in Perak February 1, 2009

Posted by elizabethwong in Current Affairs, Democracy, Malaysia, Note2Self, Politics.
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13 comments

The Speaker of the Perak state assembly has announced that the two assemblymen / Exco members have tendered their resignation, thus vacating their seats.

Two of them remain missing and incommunicado.

One of them Capt Osman (rtd), is my colleague i.e. Exco for Tourism. In fact, he is quite a easy-going, delightful chap, and loyal to the core to Anwar Ibrahim and KeADILan. I shall miss him during our Pakatan (Tourism) caucus.

Personally, I find it hard to believe that he would switch camps. I suspect foul-play. It was this Monday, day 2 of Chinese New Year that I spoke at length with his lawyer, Capt Yunus about Capt Osman’s court case due on 10th Feb. Yunus was very excited and confident about the trial, and I told him that I would try to make it too. Then mid-week, I received a message from his legal partner and my old schoolmate, Wende, who caught a whiff of the rumour. I was surprised and told her to ignore the rumours.

I then tried to call and message him later this week, without success. The last time I saw Capt Osman was in Alor Setar for our Pakatan Rakyat’s MB Council meeting.

I hope he is well, wherever he is, that he is unharmed and I pray for his safe return.

Dengue Hotspots in Selangor January 30, 2009

Posted by elizabethwong in "We can do better", Note2Self.
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14 comments

(According to districts)

Petaling (Flat A and Flat C Section 7, Terrace A Section 7, Terrace A and Terrace B Section 18, Section U3 Subang Perdana and Section U10 Puncak Perdana);

Kajang (Taman Kajang Perdana, Taman Semenyih Indah, Taman Koperasi Cuepacs Batu 12, Taman Cheras Jaya, Taman Industri Mega, Taman Sri Jelok, Taman Zamrud, Taman Kajang Baru, Taman Kajang Jaya, Section 2 Bandar Sri Putra, Section 2 Bandar Rinching, Zone 1 Taman Sepakat Indah, Zone 1 Section 8 Bandar Baru Bangi, Zon 3 Section 16 Bandar Baru Bangi, Zone 5 Section 16 Bandar Baru Bangi and Zone 4 Taman Bukit Mewah);

Shah Alam (Perdana Apartments Section 13, Flat 18/3 (Eps 2), PKNS Flats Section 20, Section 6 flats, Padang Jawa B, Padang Jawa C, Pangsapuri Anggerik Section 16, Section 10, Section 11, Taman Alam Indah Section 33, Terrace A Section 25, Terrace C Section 27, Terrace A Section 25 and Terrace A Section 8);

Gombak (Bandar Baru Selayang F2, Kampung Laksamana, Taman Pinggiran Batu Caves Z2, Taman Samudera Timur and Taman Sri Gombak Zone 3);

Subang Jaya (Taman Puchong Perdana and Taman Serdang Perdana);

Hulu Selangor (Bandar Baru Batang Kali);

Hulu Langat (Kampung Sg Kantan Kajang and Kajang Prison quarters); and

Sepang (Taman Seroja Zone A).

The overall number of dengue cases recorded from 1 to 25 Jan: 4,521 cases and 13 deaths.

Education Ministry and pregnant teachers January 29, 2009

Posted by elizabethwong in "We can do better", Human Rights, Politics, Women.
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4 comments

Updated:

The chairperson of the Bar Council Human Rights Committee, Edmund Bon, sms-ed to say they were interested to assist in the case as it is a Constitutional matter. Thank you! 

———————————————————

Earlier:

Note to Education Minister: Pregnant women are not weaklings, do not suffer from delusions and function as well as, if not better than the next person.

Amalan diskriminasi gender guru, Kementerian Pelajaran Malaysia

Seorang calon wanita yang memohon jawatan guru sandaran tidak terlatih (GSTT) telah dinafikan hak untuk diambil bekerja hanya kerana beliau sedang hamilInsiden sedemikian mengukuhkan pengamatan bahawa gender mainstreaming di Malaysia terus gagal. Kegagalan itu telah meneruskan diskriminasi terhadap sebahagaian wanita di negara ini.

Perlembagaan mengenai pemberian hak kepada warganegara tanpa mengira agama, bangsa, keturunan, tempat lahir atau gender (Perlembagaan Malaysia, Perkara 8[2]) hanya berupa tulisan-tulisan di atas kertas yang tidak memberi sebarang perlindungan yang bermakna kepada rakyat yang benar-benar memerlukannya. Lebih memburukkan adalah bilamana pelaku terhadap pelanggaran hak perlindungan itu ialah pihak agensi kerajaan sendiri, Kementerian Pelajaran Malaysia menerusi Pejabat Pelajaran Daerahnya (PPD). Kerajaan sememangnya tidak acuh dalam meratakan pengetahuan dan penghayatan kesensitifan gender di kalangan masyarakat dan dalam pentadbiran kerajaan.

Malaysia, sebagai penandatangan (signatory) kepada CEDAW (UN Convention for the Elimination of All Forms of Discrimination against Women), selama ini telah dicanangkan sebagai komited dalam menghormati hak wanita Malaysia.   Perkara 11 dalam Konvensyen tersebut menuntut setiap negara agar mengambil segala langkah ke arah menghapuskan sebarang bentuk diskriminasi terhadap wanita dalam bidang pekerjaan bagi memastikan keadilan sebagai hak asasi sejagat untuk semua manusia berlaku.

Noorfadilla Ahmad Saikin telah ditawarkan sebagai guru di bawah skima GSTT sembilan hari selepas menghadiri temuduga berkenaan pada 2 Januari lalu. Beliau telah diminta hadir untuk mengambil butiran penempatan sekolah di PPD, Hulu Langat. Sebaik sahaja diberitahu bahawa beliau sedang hamil tiga bulan, pegawai yang bertugas terus menyatakan bahawa pemohon yang hamil sepatutnya tidak boleh memohon GSTTTiada alasan yang logik dikemukakan dan tiada pula tercatat di mana-mana dokumen permohonan tentang syarat bahawa pemohon hamil tidak dibenarkan memohon pekerjaan tersebut. Jelas sebagaimana yang disebutkan oleh Setiausaha Kesatuan Perkhidmatan Perguruan Kebangsaan, Lok Yim Pheng, bagi wanita yang dinafikan hak untuk diambil bekerja hanya kerana mereka sedang hamil adalah tidak adil, khususnya bagi mereka yang benar-benar berminat dalam profesion perguruan.

Mengapa ketidakadilan seperti ini tetap berulang dalam pentadbiran kerajaan? Kecuaian kerajaan BN dalam memastikan hak wanita terbela pada setiap ketika, tempat, masa, dan keadaan amatlah menghampakan. Apakah Wanita Malaysia sekarang ini sentiasa boleh mengharapkan kerajaan Malaysia untuk memelihara dengan baik dan berkesan hak-hak mereka yang termaktub dalam Perlembagaan dan Undang-Undang serta Konvensyen Antarabangsa?

Wanita KeADILan menggesa Perdana Menteri, Abdullah Badawi untuk mengarahkan kesemua peringkat pentadbiran negara, khususnya Kementerian Pelajaran agar menghapuskan dengan serta-merta segala amalan diskriminasi gender bagi mengotakan komitmen beliau untuk menamatkan  ketidakadilan yang berunsurkan gender.
Zuraida Kamaruddin
Ketua Wanita
Parti Keadilan Rakyat
28 Januari 2009

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