High Drama in the Perak Constitutional Crisis
Here’s a quick summary of what’s going on in Perak at the moment. In a nutshell, the problem is that the ruling Pakatan Rakyat coalition lost majority with four defections and the Sultan of Perak decided against fresh elections, allowing Barisan Nasional to form a new government without prior election. Pakatan Rakyat finds the lack of elections as an unconstitutional formation of government marred by uncooperative state organs, while Barisan finds that the loss of majority for Pakatan is sufficiently legitimate for government. May 7 represents the dramatic struggle of Pakatan unceremoniously protesting against Barisan forming a new government through dubious means.
In the previous general elections in 2008, the newly formed Pakatan Rakyat coalition had won 32 state assembly seats in Perak, thus allowing them to form the state government. Barisan had only 29 seats. Datuk Seri Mohammad Nizar Jamaluddin (PAS) was appointed as Chief Minister of Perak and V. Sivakumar (PKR-Tronoh) as the Speaker of the state assembly.
In late January to early Feburary 2009, four PR assemblymen defected. Nasaruddin Hashim (defected to BN), Hee Yit Fung (former DAP, now independent-Jelapang), Jamaluddin Mat Radzi (former PKR, now independent-Behrang) and Mohd Osman Jailu (former PKR, now independent- Changkat Jering). The last three of them pledged suppport for a BN government in Perak. Together with Najib Tun Razak, newly appointed as Perak UMNO chief, they sought an audience with the sultan of Perak to form a government. In a separate audience, Pakatan Chief Minister Nizar asked for fresh state elections. However, the Sultan of Perak denied Nizar’s request. This is seen to be an unpopular move with the opposition.
Without fresh elections, BN formed government and Datuk Dr. Zambry Abdul Kadir was sworn in as the BN Chief Minister. However, V. Sivakumar was still Speaker of the state assembly. He sued the Electoral Commission for not allowing by-elections since Jamaluddin Mat Radzi and Mohd Osman Jailu went missing and seats were declared to be vacant by the Pakatan Chief Minister Nizar. He sued the three independent candidates for no longer being lawful representatives. Finally, As the “chairman of the privileges and the special rights committee”, he suspended the Barisan chief Minister Zambry and six Barisan executive councillors for contempt of the assembly.
Speaker V. Sivakumar attempted to call an emergency sitting of the state assembly on March 3, with the intention to put to a vote the dissolution of state assembly, thereby forcing elections. However, the state secretary’s office locked the gates of the state assembly building and cordoned it off with riot police, so the emergency sitting with only Pakatan assemblymen took place under a tree nearby. They passed the motion to dissolve the state assembly.
However, the Ipoh High Court had earlier declared that V. Sivakumar effectively could not call for an emergency sitting, thus the Barisan assemblymen did not meet and is generally not taken to be legitimate. Nevertheless, it is doubted that the judge that passed the restraint order was indeed able to do so as his contract just ended a few days prior. Barisan Chief Minister Zambry later awas able to get a court order to overturn his suspension, and the Federal High Court decided that the state assembly had no power in declaring the independent seats vacant and they were legitimate assemblymen.
Zambry then filed a motion to remove V. Sivakumar from office and to re-elect the Speaker. Yesterday, was when his motion must have been read.
That brings us to 7th May, which was the session to debate the motion of removal of Sivakumar. At the beginning of the session, Sivakumar ruled that the session would not convene until Zambry, his six executive councillors and the three independent assemblymen left the House. Chaos ensues. Soon, Zambry would simply read out the motion himself to have Sivakumar removed, and the Barisan assemblymen immediately support it. Sivakumar’s microphone is turned off, and the Barisan-friendly independent Hee Yit Fong takes over as she is deputy Speaker. Subsquently, Ganesan is appointed Speaker and is given the Speaker’s robes.
The next motions to be passed by the 31 seat majority were “to change the membership of the three house committees”, which the Nut Graph notes that it was to install their own members into the committees, and to declare the tree assembly illegal. At about 11.30am, Barisan then proposed an “adjournment” of 1 hour, which was acceded to by both sides. PR candidates cross over to the BN side to heckle Ganesan into leaving the House. Ganesan declares an hour-long extension of the adjournment. All this while, Sivakumar remains seated in the speaker’s chair.
Around 2pm, Pakatan assemblymen attempt to block Ganesan from re-entering the House, but Barisan assemblymen are forcibly trying to remove Sivakumar. Pakatan assemblymen physically crowd around the speaker’s table in order to prevent him from being removed. Punches are thrown. He eventually was removed at 2.40pm by being dragged out with his chair by plainclothes policemen. A shouting match ensues over the emptied seat. At 2.50, Ganesan takes the speaker’s table amidst cries of protests from the Pakatan side. Zambry motions for prayers to start and to allow the Perak State Regent, Raja Nazrin Shah to make his royal address (who was waiting since noon).
The state assembly quietens down for the royal address, and treats him with deference. Some order is restored. He makes no note of the prior political chaos. He finishes his address by 4pm and state assembly was adjourned indefinitely.
The police pre-emptively arrested several activists and assemblymen prior to the seating. Wong Chin Huat, was arrested on charges of sedition based on several of his articles, and his advocacy of the 1BlackMalaysia campaign, which was to wear black in protest of the illegitimate proceedings. The police also warned citizens not to wear black near the state assembly building, and several brave protestors were arrested as a result. Five members of Federal Parliament and another five members of the state assembly were also arrested, but were released the same day. The Nut Graph claims that 90 arrests were made. Wong Chin Huat was released the subsequent day.
The Malaysia Insider decry the loss of confidence in the judiciary in delivering a fair and acceptable verdict. They pointed out that the constitutional monarchy being not as impartial as their constitutional role as “Datuk Seri Nizar Jamaluddin, Sultan Azlan Shah of Perak did the unthinkable — he asked Nizar to resign and installed BN as the new state government”. Finally, they condemned the high-handed role of the police which subverted democracy and representation by arbitrarily banning the wearing of black shirts. In another article, they also predict that the arbitrary use of police coercion would damage Barisan’s credibility in the long run — at least in opposition eyes, if not of the general public. Prominent human rights lawyer, Malik Imtiaz Sarwar questioned the legality of proceedings of the 7th May, as Hee could not procedurally take over from Sivakumar while he was still in the building, Barisan should not have called in the police but should have served a court order removing him, the new speaker must be sworn-in in a separate session, and that there was no formal convening of the session: all the proceedings were held prior to the regent’s speech which officially comes first. Many are also angry that if the Sultan had indeed allowed fresh elections to take place in February, the crisis would not have taken place. On the subsequent day, 200 lawyers protested against the police arrestts.
However, UMNO lawyers contend that the proceedings were legally correct. Zambry defends himself by saying that the tyranny of the minority shouldn’t rule over the majority — a clever subversion of the adage of the ”tyranny of the majority’. However, government and government supporters seem to portray opposition as uncouth, uncivilised sore losers in their measures to cling to power. Malay newspaper accounts said that the opposition leaders “forgot themselves” and could not accept the fact that they were no longer in majority. Khairy Jamaluddin, comments that “Our national image has been jeopardised by assemblymen who prefer anarchy”.
On the 11 May, a High Court verdict deciding on the legitimate Chief Minister of Perak will be delivered. However, the losing party will definitely file an appeal to the Appeals court.
I agree that most analysts are right in that had elections been called, then this situation would have been averted. Even if Pakatan had lost at the elections, they would have not attempted to cling to power as much as they did because they would have legitimately lost power through mandate. However, the actions of the Barisan Nasional camp seem to indicate that they did not want to force an election, perhaps in expectation that they would have lost the election and would have no chance of getting back into power. After all, the three independent candidates have lost their reputations for defecting.
As pointed out by a friend, Pakatan could have attempted to escalate the May 7th by resorting to even more drastic measures by locking the doors and chaining Sivakumar to the table, thus prolonging session until a compromise with Barisan can be sought, signalling to the public the illegitimacy of the proceedings, and inducing the Sultanate to hold fresh elections. However, I am is unsure what actions Barisan could take to prevent that.
On the other hand, this episode in Malaysian politics shows how the odds are already stacked against the opposition. While the institution of the Sultanate is supposed to be “apolitical”, their actions or nonaction as prescribed by the constitution have effects on the distribution of political power. Had the sultan indeed listened to the Nizar, Pakatan would not have though the Barisan government to be illegitimate; what strings were pulled in the meeting between Najib and the Sultan is anybody’s guess.
In addition to that, the police, state judiciary, state bureaucracy and electoral commission have been exposed to have been partial to the Barisan government. The police should not have forcibly ejected Sivakumar, the judicial decision to lift Zambry’s suspension was not clearly legitimate, the state secretary took intiattive over political office, and the electoral commission refused to hold by-elections despite letters of resignation of two independents.
Why then the breach of constitutionality by the institutions of the state? Perhaps, conservative elements within the institutions of the state consent to extra-constitutional measures because they place heavier priority on order and certainty over due procedure. After all, due procedure had already failed them for the past few months and it was necessary to find an answer — an answer that was not the Pakatan because they clearly did not have majority.
The probably result of this is that it could clearly alienate the popular vote. Whether or not one sympathizes Barisan or Pakatan, many people have complained that the May 7th fiasco is an embarrassment to the nation. It is likely that people will accept whatever government is in power, as long as their is some sort of stability and order in the state.
I don’t find it embarrassing that people were fighting “like little kids” in the State Assembly, granted the amount of power that is at stake and the emotional investment, were willing to take extraordinary measures to preserve what they think is right.
However, I do find embarrassing that as a whole nation Malaysia hasn’t had stronger institutionalised channels in which constitutional impasses can be worked out, that Malaysia does not have the leaders that can bridge the divide, and that Barisan nor Pakatan are able to compromise. Representational democracy exists not solely in the vote, but in the negotiation and compromise between two parties before executing a decision. The legitimation of government, lies in convincing the opposition of its loss.
We will have to look forward to the court ruling on Monday. Regardless, a strategy for Pakatan would be to find an alternative way to induce the election commission to hold early elections. Granted the difficulty of calling elections even with some measure of power, it is not a likely strategy. The worse case scenario is a wave of anti-government protests like Thailand, where both the PPP and PAD thought the current government was installed through ilegitimate and undemocratic means. The ball is now in their court. Malaysians wait.
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