Legal Turmoil over Perak Defections

Legal turmoil over Perak defections
Wednesday, 11 February 2009 09:17

Reflecting On The Law, By SHAD SALEEM FARUQI (The Star)

What is worrying is that the fall-out of this crisis is sullying the reputation and credibility of many legal and constitutional institutions while the root cause – the despicable phenomenon of party hopping – remains unaddressed.

THERE is a constitutional impasse in Perak. The descent into naked and unprincipled struggle for power was triggered by the defection of a Barisan Nasional Assemblyman to Pakatan Rakyat and an immediate four-stroke counter-punch by the BN.

What is worrying is that the fall-out of this crisis is sullying the reputation and credibility of many legal and constitutional institutions – the Sultanate, the Election Commission, the Anti-Corruption Commission, the public prosecutor and the police. Despite this damage, the root cause – the despicable phenomenon of party hopping – remains unaddressed. Let’s examine some of these issues.

Defections: The “right” to switch parties in midstream is based on Article 10(1)(c) of the Federal Constitution which guarantees freedom of association.

However Article 10(2)(c) permits Parliament to restrict this freedom in the interest of security, public order and “morality”.

In the 80s the governments of Kelantan and Sabah passed anti-hopping laws to curb this right on the ground of morality.

However, in the Nordin Salleh (1992) case, the Federal Court declared that the anti-hopping law was unconstitutional on two grounds. First it was passed by the wrong legislature. Second – and this was most unconvincing – that the term “morality” does not cover political morality.

I believe that party hopping by an Assemblyman after his election on a party ticket amounts to a fraud on the electorate.

There are three possible ways of taming this turpitude. First, a constitutional amendment to Article 10 by a bi-partisan two-thirds majority should be attempted.

A second way could be for Parliament to enact an ordinary Anti-Defection Law and to enforce it immediately.

If and when the law is challenged on the Nordin Salleh precedent, vigorous arguments could be proffered to invite the Federal Court to overrule its prior, indefensible ruling.

One possible way of expediting the overruling of this bizarre decision is for the King to refer the issue to the Federal Court under Article 130 to seek an advisory opinion on the interpretation of the word “morality” in Article 10(2)(c).

A third way of enacting an anti-defection law would be to promulgate an Emergency Ordinance under Article 150. In the case of Stephen Kalong Ningkan (1968), the Privy Council ruled that “emergency” includes “collapse of civil government”.

Without doubt, defections bring about the collapse of civil government and an Emergency Ordinance would be legally, morally and politically justifiable.

Resignation letters: The legality of the undated resignation letters from the two Pakatan Rakyat defectors is at the heart of the constitutional imbroglio in Perak.

The Speaker of the Perak Assembly accepted the validity of the letters and issued a notice to the Election Commission. In favour of the Speaker’s view, it can be stated that in the UK it is part of the privileges of parliament to determine questions relating to casual vacancies in the House.

The decision of the House is generally regarded as final. Also, Article 35 of the Perak Constitution permits a member of the Assembly to resign “by writing under his hand addressed to the Speaker”.

The problem is that the two hoppers denied that they wrote to the Speaker. There is also a relevant judicial decision. In 1982 the validity of open-dated resignation letters was rejected by the High Court in the Sarawak case of Datuk Ong Kee Hui v Sinyium Mutit.

In the light of this decision and the denial by the two defectors, the Election Commission had some basis to make up its own mind and to declare that the seats had not fallen vacant.

Perhaps the safest thing was to seek a quick Federal Court decision on the interpretation of the Perak Constitution. The Perak Constitution in Articles 63-64 admirably provides for such a course of action. Regrettably, the parties to the dispute and the Sultan did not adopt this course of action.

Dissolution: Under the Federal and state Constitutions, the Sultan has an undoubted discretion, guided by his own wisdom and the broader interest of the state, to refuse a request for premature dissolution. We have examples from Kelantan and Sabah where such requests have been refused.

Confidence of the Assembly: Having been appraised that Pakatan Rakyat had lost the confidence of the Assembly, Tuanku Sultan was faced with many difficult choices. First, he could have prorogued the Assembly pending a court decision on the validity of the hoppers’ resignation letters and the question of vacancies.

Second, he could have asked the antagonists to face the Assembly and prove their support in accordance with usual parliamentary traditions. I am of the view that if an Assembly is in session, or can be quickly brought to session, it is its right to determine the question of confidence and no one should usurp this power nor should factors outside the Assembly be taken into consideration in determining the question of confidence.

Article 16(6) of the Perak Constitution is not crystal clear as to how it is to be determined whether the Mentri Besar has ceased to command the confidence of the majority of the members of the Assembly but there is a 1966 Sarawak judicial decision in Stephen Kalong Ningkan v Tun Abang Hj Openg Tawi Sli that the Governor cannot dismiss a Chief Minister unless he is voted out by the Assembly.

In Perak, however, Tuanku took it upon himself to shoulder the lonely burden of determining who commanded confidence of the assembly. He took pains to interview all four defectors and to hear out the Mentri Besar and Datuk Seri Najib Tun Razak more than once.

The Sultan paid heed to the EC decision that there were no vacancies. Undoubtedly he was also influenced by the Speaker’s threat that the Speaker would not allow the defectors to enter the Assembly to participate in the confidence vote.

Dismissal of Mentri Besar: The Constitution of Perak in Article 16(7) states that a member of the Executive Council other than the MB shall hold office at the Sultan’s pleasure. This implies that an MB cannot be dismissed except by a vote of no confidence in the assembly.

The problem is Article 16(6) states that if an MB loses confidence then he has two choices. First, advise dissolution and second, if that request is denied, then resign. There is a lacuna in the law. What if an MB loses the confidence of the Assembly, is denied dissolution, but refuses to step down?

Can the Sultan dismiss him? It is submitted that life is always larger than the law. There are always unchartered territories. If an MB who has lost confidence, and is refused dissolution, is shameless enough not to walk away, then the Sultan would be justified in dismissing him, Article 16(7) notwithstanding.

But in Perak this was not the case. The question of losing confidence was not constitutionally investigated. There are many triable issues and the courts must accept the gauntlet.

Treason: Opinions are being expressed that to defy the Sultan and to threaten to go to court for defence of one’s legal rights amount to treason and a ground for deprivation of citizenship. There are fundamental misunderstandings here.

From day one of Merdeka, the King and the Sultans were open to civil suit for their official actions. They were only immune personally. In 1993 even the personal immunity was taken away.

In sum it is not a violation of the Constitution to resort to the courts to seek an authoritative opinion on one’s rights and duties. Where else does one go, what else does one do, if one has a claim?

Dr Shad Faruqi is Professor of Law at UiTM.