|
The resignation letters → Dissolving the state legislature? → Power transfer to BN?
THE RESIGNATION LETTERS
1. The undated resignation letters are illegal as argued by Kapal Singh;
http://www.bernama.com/bernama/v5/newsgeneral.php?id=387473
2. It is strange that with the case cited by Kapal Singh, University students above 21 are still banned from joining any political parties and Civil Servants have to ask permissions from their heads of departments to do so and sign some surat akujanji. Failure of complying with such requirements the students and the Civil Servants may be kick from Uni or fired. Isnt such rulings ultra vires the Constitution as well?
3. To me an honest assemblymen who have internal problems with their respective party can decide to quit the party. But if he or she decides to become independent AND supports the other side, then something is terribly wrong to suddenly make a big shift from agreeing to a principle and then suddenly support another. Especially with no particular good reason except to cite infighting within their former party. That the worst cliche ever on the person who 'jumps'... in this case the action of SAPP from Sabah which quit BN are much better and honorable to me...
DISSOLVING THE STATE LEGISLATURE?
4. BN cannot form the Perak government yet as the case of the resignation letter and the EC's position on it has been brought to court. Though it is a losing battle, the status quo of the present government and those Aduns have to be maintain until a decision upon it has been decided by the court. That can take time to resolve like in the Semangat 46 defectors case in 1992:
http://www.theedgedaily.com/cms/content.jsp?id=com.tms.cms.article.Article_3a4987a0-cb73c03a-1c6866d0-3b238eaa
5. Because the status quo remains, the MB of Perak can ask for the dissolution of the state government from the Sultan as it is in his power to do so. BN will have to try to overturn the High Courts decision in the Semangat 46 defectors case in 1992 in order to block such an election.
6. However if the Sultan agrees to dissolve the state assembly and have a new state election, this will not resolve the case of the Aduns because the same Semangat 46 case in the Federal Court reinstate those Semangat 46 defectors.
POWER TRANSFER TO BN?
7. If the Sultan agrees to a new BN government, while the case is still in court, it is an akward situation because though the Sultan cannot be sued for doing his official functions, for me it still feels like the Sultan has premeditated the court. Worst, if the Aduns win the case, though a precedent have been set, it still feels like the Sultan has indirectly influence the case concern. The name of the Sultan may be tarnish.
8. This also brings to mind, whether the show of support by these 28 BN plus 3 Adun outside of the state legislature can be considered as proof that the current MB has lost the confidence of the majority in the house? In Ningkan's case, the term 'confidence' and 'support' were distinguished. [1966] 2 MLJ 187, [1967] 1 MLJ 46. Harley AG CJ 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..."
9. As it is now the Sultan have agreed to a power transfer and has direct Nizar to resign. If Nizar disagree, the Sultan as in his statement will consider the MB seat as vacant.
http://mt.m2day.org/2008/content/view/17689/84/
With respect to the Sultan, I do not think that HRH have the power to consider such a thing because this would mean that the Sultan can indirectly 'sack' an MB, something unheard of before*.
*Refer to page 126, Law, Government and The Constitution In Malaysia by Andrew Harding.
Scenarios like this should be legally differed compared to the scenarios like in the Perlis and Terengganu crisis of electing MB last year, because in those cases the MB havent been appointed yet. Hence, the need for the Sultan of both state to decide according to whom HRH feels have the confident of the majority in their respective legislatures.
The only option open after HRH Sultan Perak have direct the MB to resign is;
i) MB Nizar resign as ordered, or
ii) A vote of no confidence is made towards the MB in the next state legislature's sitting.
If none of the above happen, then an impasse or Constitutional Crisis is afoot as per case Ningkan [1966] 1 MLJ 195.
10. As Nizar has decided not to resign, this case is eerily similar to the Sarawak case in 1966 involving the then CM Stephen Kalong Ningkan. In that case, Stephen Kalong Ningkan refuse to resign after being told to do so by the Yang Dipertua Negeri Sarawak. He goes further by not calling the sitting of the state legislature so no vote of no confidence could be made against him. The Federal government attempt to dismiss Nigkan via the YDP 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: Emergency [Federal Constitution and Constitution of Sarawak] Act 1966 (No 68):, and introduce to the state via Parliament the power to the Yang Dipertua Negeri, to summon for a meeting of the state legislature without the advice of the CM. A vote of no confidence was then passed towards Ningkan.
He challenged such all the way to the Privy Council but lost.
Would a similar thing happen in Perak? It could happen. Precedent wise, this is the only legal way out available in Perak.
MY TWO CENTS
11. Today, a new MB will be install by the Sultan of Perak. Constitutionally speaking, i do not think that such installation is valid. Its either Nizar resigns or call for an assembly sitting so that a vote of no confidence could be declared. Neither of which will likely to happen. Its a staelmate.
12. The defection scenarios were 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 6th of September 2008. I have to reluctantly agree with Taib Mahmud's when he said "You reaped what you sow!"
13. I was sadden with the the decision by the PR coalition to held a rally in Ipoh. They are making it easier for the Federal Government to declare emergency, not only in Perak but the whole country. History have shown the extent that BN will go to retain and take power.
14. And so i urged the PR coalition to advice Nizar to step down as MB and avert a bigger constitutional crisis. I would have prefered a state election but the HRH have decided against it. I still however disagree that a state election should not be held by reasons of the economic turmoil, for America did it. Tun Mahathir call for an election in 1999 amid the economic and political turmoil. And anyway, soon we will have the Sarawak state election. Will BN defer the Sarawak state election because of economic reasons? I do not think so. Hence such argument is invalid.
15. PKR have to take heed of what has transpired and weed out all of its members whose loyalty is doubtful. Please do note that most of the Malay members in PKR was from UMNO and their loyalty is in doubt, especially those who did not join PKR after the 1998 aftermath but only join recently.
16. As to the Sultan, i hope HRH would agree to postpone the installation of the new MB untill Datuk Nizar agrees to resign. Past legal precedents have shown that HRH may have erred in considering such MB seat vacant and this will tarnish HRH good standing among Malaysians as a legal expert if the new MB is sworn in. I urged HRH to please consider Tengku Razaleigh's statement here;
http://razaleigh.com/2009/02/05/shameful-scene/
17. Again, it seems that the good name of the Sultan is currently in the hands of MB Nizar. I urged Datuk Nizar to resign gracefully. It wont do politically to go against the wishes of HRH for this will only inflamed 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....
- Bluesyworms Jazzyworms
 |
