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Might is not always right

THE Perak legislative assembly sitting on 7 May was the final act in the power grab by Barisan Nasional (BN). Three months after wresting the Perak government from the Pakatan Rakyat (PR), the BN yesterday finally grabbed the all-important speaker’s chair as the sitting descended into chaos.


Zambry
Now, instead of having two contentious state governments led by two menteris besar, Perak now has the dubious honour of having two speakers as well. And the crisis shows no signs of abating.

To get to this point, two myths have been perpetuated about the state’s political and constitutional crisis

The first is that failure to hold an assembly by 13 May or six months from the last sitting will result in the automatic dissolution of the state government. The second is that “what matters most in a democracy is the numbers. The majority rules”, which BN-appointed Menteri Besar Datuk Seri Dr Zambry Abdul Kadir is fond of saying.

These myths have been used to support the BN’s naked agenda to replace the legislative assembly speaker V Sivakumar from DAP with someone supportive as the new chair of the House. This the BN achieved yesterday with the use of police force.

No automatic dissolution

The BN was never expected to return to Perak voters for a fresh mandate. Thus came about the spin that the House had to meet by 13 May or be automatically dissolved. Yet, Article 36 of the Perak constitution only states that the ruler must summon the assembly to sit every six months.

Unfortunately, the “great myth” about automatic dissolution, as lawyer Tommy Thomas has called it, has been reported in the media often enough that it now appears as fact.


Tommy Thomas
“There is no such doctrine of automatic dissolution. It must be an overt act of the sovereign signing the proclamation of dissolution,” Thomas said at the 25 April Bar Council forum on the Perak crisis. Thomas served as legal counsel for Sivakumar in the suit brought against him by assemblypersons Jamaluddin Mohd Radzi (Behrang), Capt (R) Mohd Osman Jailu (Changkat Jering) and Hee Yit Foong (Jelapang).

International Islamic Univeristy law lecturer Prof Dr Abdul Aziz Bari makes the same point. He says there are only two kinds of dissolution. One is upon a request made by the head of the government or a state to the prime minister or sultan. The second is when Parliament or a legislative assembly reaches the end of a five-year term when general elections must be held.

Abdul Aziz says the state’s six-month period between assembly sittings is only to ensure that a sitting takes place so that the government of the day can be answerable to the legislature, as is the practice in the British Westminster system.

To avoid its fears of putting the Perak crisis to a fresh vote, the BN has appeared hasty in convening the assembly sitting, especially since the Kuala Lumpur High Court has yet to make a decision on the rightful menteri besar case. The court will only do so on 11 May.

It appears that in the absence of a threat of fresh elections caused by a delayed sitting, 7 May was only the BN’s way of further consolidating power. Even Zambry himself admitted that replacing Sivakumar was unnecessary. His justification for it was that the smooth running of the state with the help of a “friendly speaker” was paramount.

Where the majority really belongs

“But we have the numbers…” is what Zambry, his Umno-backed lawyers, and BN-backed speaker Datuk R Ganesan are saying of the vote to boot Sivakumar out and install their own man.

“There is a maxim in democracy, that the majority rules. The BN has 31 and Pakatan 28, and the majority elected the speaker,” Ganesan said to reporters after the sitting yesterday when asked about the legitimacy of his appointment.

After the sitting, Zambry emphasised that the BN was right by telling reporters: “In the running of a democracy, we cannot allow the tyranny of the minority to decide for the majority.”


Ganesan
He said this when justifying Ganesan’s request to police to help restore order in the House by removing Sivakumar.

It appears that the BN is confusing majority rule with might. It is also confusing might with being right.

If we follow the BN’s logic, it was right for the police to eject Sivakumar, because they were instructed to do so by the rightly elected speaker, Ganesan, in a sitting that had not yet been officiated by the Perak regent. They also claim that the sitting was legal nevertheless, because royal consent for it had been obtained earlier.  

How far back do we go? Datuk Param Cumaraswamy says 7 May shows more clearly than ever the need for fresh elections. “The ugly events of yesterday clearly show that there can never be an orderly and stable government in Perak unless the legislative assembly is dissolved,” the former United Nations Special Rapporteur on the Independence of Judges and Lawyers says in a statement to The Nut Graph.

“That one disputed speaker could call in the police to assist the Sergeant-at-Arms to remove the other speaker … did not speak well of the calibre of the state representatives. Procedural fairness was thrown overboard in the assembly yesterday,” Param adds.

He also makes a point about the Regent Raja Nazrin Shah, who waited over four hours to deliver his royal address after the Sivakumar was thrown out and the House brought to order.

“Raja Nazrin’s presence there may not be seen as the ruler being above politics,” Param suggests.

Crisis far from over

The state’s legal and constitutional crisis is far from over. Appeals are bound to be filed against the High Court’s ruling on 11 May on the rightful MB, and suits could also arise from yesterday’s assembly sitting. Indeed, Sivakumar himself has already lodged a report against the police for trespass and assault.

Param notes that the sitting and its questionable motions passed could tarnish the court’s reputation further.


Param (Source: bestlawyers.com)
“What happens if on Monday the High Court declares Nizar as the rightful menteri besar? On the other hand, if the court finds that Zambry’s appointment was valid, the public perception would be that the sitting yesterday pre-empted the court’s decision. The independence and impartiality of the court would be called into question.”

The BN insists they did nothing wrong. At a press conference on 8 May, Sungai Rapat assemblyperson Datuk Hamidah Osman said it was PR reps who “killed democracy” by ignoring the fact that new speaker Ganesan had been voted in by a majority of the House.

“Now that we have the majority, with 28 assemblypersons and three supporting independents, we have the right to introduce a motion to remove him,” she said.

The argument may come back to who has the numbers, but the BN should not forget that public perception also weighs other aspects. Backing up one’s majority position with the use of force, or disregarding the procedures for officially opening the sitting on the basis of numerical strength, makes for bad public relations.

Against Zambry’s warning of the “tyranny of the minority“, consider 18th-century British political thinker Edmund Burke‘s “The tyranny of a multitude is a multiplied tyranny”.

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16 Responses to “Might is not always right”

  1. beeyong says:

    In Chinese they say “borrow knife to kill somebody”. In English it could mean “the fall guys”. The BN is very good on this strategy. They won’t get involved with conversion matters but they have lackeys will have to spin on the issue. Who loses? The lackeys.

    Yesterday two “fall guys” which were appointed as deputy speaker and the speaker were non-Party people. The political career of the 2 ‘fall guys’ is well as dead and gone. If I were them I would try to squeeze as much as I can before GE13. PR, please monitor them hour by hour and minute by minute; catch them with their pants down.

  2. Ritchie says:

    The tyranny of Barisan Nasional (BN) brought disrepute to the House, and it has criminally and unlawfully hijacked its sitting. Their election of a “BN-friendly” speaker was not in accord to House regulations. And its use of violence and intimidation has made Malaysia a member of the ‘castle of rascals’ in the eyes of the world.

    BN is guilty of conspiracy in orchestrating this mutiny by instructing and directing the plainclothes police to rough-house and violently evict the legitimate speaker out of the house and detain him for hours. Whatever is left of the rule and law in Parliament and the Constitution is being dismantled.

    BN is also responsible for directing a brutal crackdown of Malaysian citizens, NGO’s, MPs, and members of the opposition party. The brutal crackdown is clear evidence that like ‘Ops Lalang’ the Najib administration is on the road to silence any form of dissent or freedom for the rakyat to express its views against the injustices practiced by the BN government and its cronies. Wear Black and taking a stand against the regime.

  3. F.Xavier says:

    You appear to be radical, but you still wish to be politically correct. I am disappointed with your values.

  4. raguel says:

    Appeals and further appeals take ages. Why is BN so afraid of fresh elections in Perak? BN is used to spending millions, why not consider another fresh election as a mini-economic stimulus package for Perak?

    Can’t imagine after five decades of independence, we are worse off than under colonial rule.

  5. KohJL says:

    A fine line we tread here:
    Democracy vs. Tyranny of the Majority

    Which side of the line are we on?

  6. OrangRojak says:

    Zambry is absolutely right, of course: in a democracy, it is numbers that matter. ‘Democracy’ is from the Greek language and means ‘people rule’. The people of Perak elected their representatives and Pakatan Rakyat got a slim majority of the seats. A majority of the seats are now occupied by Barisan Nasional (or ‘faux-Independents’ who demonstrate their Independence in a post-modernist ironic fashion by voting with BN), which is not what the people voted for at the last election.

    This is an obvious risk where power is transferred from people to representative. There’s a safeguard in the State Constitution however, in the MB’s hands, so that if the MB’s supporters should become a minority, he can call for the Assembly to be dissolved. Dissolving the Assembly serves as a check that the new majority is representative of the people, and not an aberration of some kind.

    It’s a good rule – it neatly precludes any ‘anti-hopping’ legislation, because if, for example, a wealthy Opposition were to buy representatives from the State Government and change the balance of power, fresh elections could be held. If the change in the balance of power was not representative of the people’s choice, power would be returned to the State Government, the wealthy Opposition would own some very expensive ex-politicians, and the people would feel what it’s like to rule for another day. Of course, if the new majority was representative of the will of the people, the ex-MB would be remembered as an expensive idiot who couldn’t see when he wasn’t wanted. But the State Constitution invests that choice in his hands.

    The people have had their rule taken away from them. They didn’t vote for BN, and Nizar’s attempt to return power to the people was thwarted. Zambry is the embodiment of the tyranny of the minority. He is the leader of 31 people against more than half of the voters of Perak. If that isn’t the ‘tyranny of the minority’, I don’t know what is.

    I’m not an expert on political matters, but I can count.

  7. manoharan says:

    MAYDAY at Perak assembly on the 7th. The sergeant-at-arms refused to obey original speaker Sivakumar’order but followed the MIC speaker’s order! What a funny 1Perak assembly.

  8. Eric says:

    If BN has the majority, then just go for elections. Why so takut? Why do they need PRDM to be do their bidding?

    “1 BLACK MALAYSIA. DEMOCRACY FIRST. ELECTIONS NOW.”

  9. bob teoh says:

    Well done Debbie. Splendid piece. You are now entitled to a rest after all the leg work.
    Bob

  10. hatimarah says:

    The public opinion of the whole episode that transpired on 7 May 09 has brought shame to the BN. This they should not deny. Any member of public, me inclusive, has no respect for the govt in the running because of the events that transpired prior to the installation of the “new speaker”. Public opinion, public perception is more important then whoever races to be the govt of the day. Remember Sabah, the parties raced to the Istana to install their own Chief Minister. Eventually, democracy prevailed, the real winner got their reward because the players believed in democracy, unlike Zambry and gang.

  11. francis says:

    “Raja Nazrin’s presence there may not be seen as the ruler being above politics.” Were there any other different thoughts about this? Any Tom, Dick and Ali can give eloquent speeches but when it comes down to actually doing it that is when the rakyat will see the true person, royal or non-royal.

  12. Hobbes says:

    Majority? What Majority? They sure don’t have the majority support of the people in Perak.

  13. kojol says:

    Umno/BN calls PDRM to enter state assembly. To kidnap the people’s speaker.

    Umno/BN uses police force, kangaroo court, beholden MACC, EC n all government agencies to trample on the rights of the rakyat.

    Let us explain to the rakyat what happened on May 7th. Let the people not forget what Umno/BN did to Perakians.

  14. Ellese A says:

    Now if the sultan has already determined not to resolve and appoint another MB, how come PR who is of the view that the dissolution can only be requested either by the MB and State Assembly, is still misleading the public for asking the sultan to resolve? The new MB appointed by the sultan will definitely not ask for it. The assembly which they don’t have the majority in will not ask for it. It’s fait accompli by their stand. Why are they still requesting the rakyat for a dissolution? If this is not misleading the public, what is this call?

  15. Ellese A says:

    You are suppose to be above the rhetoric and make sense of the things but you fail miserably in this sense.

    First your article is not balanced and the reporting covers one angle to the story. You quoted only PR-supported views.

    First, in any democracy we must accept the main cardinal rule i.e. the majority must prevail. For if we don’t, that is where chaos and anarchy will reign as what has happened.

    Nothing better than the Perak constitution to encapsulate the principle: if MB loses the MAJORITY, he shall resign. We must respect this rule otherwise there is no point of a democracy.

    Sultan Azlan Shah understood this more than others, he carried out his duty correctly but was vilified. He deserves some justice and respect. Let me elaborate. I used to have a different view, but on further reading of case laws I have changed my view and think that the Sultan has not erred and cannot have erred in this matter.

    The whole crux of the matter is that under the Perak constitution, if the MB loses the majority he SHALL resign. This reflects a well-accepted basic practice in any democracy. Now assuming the assembly passes a vote of no confidence and the MB does not resign, does that mean he will still be MB until he tenders his resignation? Surely not. This is a preposterous interpretation of the constitution. It must mean that if he does not tender, it shall be deemed an automatic resignation.

    Question now is how do you determine the majority? My initial view is that it should be the assembly. But apparently the highest court in the commonwealth, the privy council, and the Malaysian cases have accepted the principles that it need not be. There are many similar situations here and overseas. And I believe the Sultan knows this.

    Based on the above, assuming you are the sultan, an MB comes to you for a dissolution. Why would he ask this? He will only ask this if he loses the majority. Otherwise if he has a majority, it’s foolish for him to do this. Anyway the fact that Nizar has lost the majority is a public fact already. Nizar however denies this saying that he had not watched TV and newspapers and was not informed by Sivakumar. A bit ridiculous if unbelievable. Nevertheless he admitted that PR has 28 and BN 28 which again is an admission he has lost the majority.

    But the sultan, knowing the law, took unprecedented steps to determine the majority. He interviewed them. Determined their stand as he did when PR formed the government. Had a written confirmation on their allegiance. Only then did he come upon the decision on who was the majority. He went beyond to determine the truth who had the majority. There is no way not even the PR’s lawyers can admit that the sultan had erred. He cannot have erred. He was fair and to me beyond reproach now. Why must he be vilified, condemned and ostracized? There was a fair arbitrator in this impasse. Why can’t the decision of the sultan be abided with?

    But the point is PR knows they have lost the majority. Thus the push to first disqualify the three representatives who unequivocally said they have not resigned and then another six so that they now have the majority.

    The Nut Graph must accede to the fact that it’s a majority game. How else can you explain the actions of both BN and PR to this date? Be fair and balanced. PR did not play this game with a clean hand.

  16. tangkup says:

    It is very clear that the DUN of Perak has its own Sergeant-at-Arms. how can PDRM come and interfere with the functions of the Sergeant-at-Arms? This happens because BN is desperate.

    In future GE and by-elections, PDRM, EC and other government machinery will be determining the election results. Democracy in 1Malaysia is dead.


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