Corrected 1.40pm, 7 Feb 2009
Signboard maker in Ipoh (© Alex Moi / flickr)
A FAILED state is a state losing its ability to govern and exercise authority. Text-book examples include Sudan, Somalia, Zimbabwe, Iraq and Afghanistan, countries that we would never compare Malaysia to.
The Fund for Peace, a US think tank, listed 12 indicators of state vulnerability.
Unfortunately, one of the state-vulnerability indicators, “criminalisation and/or delegitimisation of the state”, is now emerging in the state of Perak. The resistance by certain elites to political representation, accountability and transparency, has led to widespread loss of popular confidence in the state’s institutions and processes.
If police violence and political persecution are inflicted there on citizens defending democracy, then another indicator of state failure, “widespread violation of human rights”, sets in.
Technically, Perak will never be a failed state because it is part of the federation of Malaysia and not a sovereign state. However, that is no comfort so long as there is a part of the Malaysian federal state that has failed.
This situation should not have happened in the first place. This year is not only the silver jubilee of Sultan Azlan Shah’s reign, but also the golden jubilee of elected state government in Malaysia’s second-oldest sultanate.
Datuk Dr Zambry Abdul Kadir,
from BN, is the new Perak MB
As of 3.30pm on 6 Feb 2009, Perak now technically has two menteris besar — one democratically-elected, the other installed by the Barisan Nasional (BN) after claiming victory by defections.
An important principle to understand during such a political confrontation is that while it was the Sultan’s prerogative to dissolve the legislature, this prerogative does not mean that the decision lies in his hands alone.
The royal prerogative is supposed to be a part of the larger constitutional check-and-balance mechanism between the executive and legislative in parliamentary democracies. The legislature, namely opposition members and government backbenchers, may bring down the government through no-confidence votes. In return, the government may seek dissolution of the legislature so that both sides face the judgment of voters.
The royal consent, or presidential/gubernatorial consent in republics, is merely supposed to prevent the chief executive from abusing this position. In other words, the discretion need not be exercised by the head of state — in Perak’s case, the Sultan — when there is no abuse by the head of the government — the menteri besar.
Istana Iskandariah in Kuala Kangsar (© Pedro Plassen Lopes / flickr)
And who could be more authoritative in this matter than the former Lord President-turned-Ruler, Sultan Azlan Shah?
In his 2004 book Constitutional Monarchy, Rule of Law and Good Governance, the learned Sultan expressed his view categorically:
“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.” (Emphasis mine).
Power to hire, not fire
Another principle to understand during the current public confusion is this: a menteri besar can only be removed by a vote of no-confidence in the assembly. The Ruler has only the power to hire but not to fire.
Not unlike what Deputy Prime Minister Datuk Seri Najib Razak has done in Perak in 2009, Prime Minister Tunku Abdul Rahman orchestrated a revolt of Sarawak lawmakers against the outspoken Iban Chief Minister Datuk Stephen Kalong Ningkan in 1966.
Tunku Abdul Rahman
(public domain / wikipedia)
When the Sarawak state governor showed him a top-secret letter of no-confidence issued by 21 out of 42 legislators and asked Ningkan to resign, the chief minister refused. Ningkan said the letters were not tantamount to a vote of no-confidence in the state legislative assembly.
He was sacked by the governor but eventually reinstated by the Borneo High Court, which saw the necessity of a formal vote of no confidence.
In his judgement, Harley A-G OCJ ruled that the governor can only dismiss the chief minister when both these conditions are satisfied:
“(a) The chief minister has lost the confidence of the House, and
“(b) The chief minister has refused to resign and failed to advise a dissolution.”
The principles about a no-confidence vote and royal consent are very much the core of parliamentary democracy and constitutional monarchy. Violating them is not merely changing the government of the day, it is changing the very political system we are in.
It then becomes regime change, not a mere government change.
Abusing Nizar for sticking to his guns will not do, for this is the exact circumstance the mechanism of dissolution is designed for.
And if the political system is changed via extra-constitutional means, it is effectively a coup against the current constitutional setting.
Flowing from the principles discussed above, these are the facts:
- Until and unless Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin is removed by a no-confidence vote or resigns of his own accord, he is the rightful and only menteri besar of Perak Darul Ridzuan. His executive council the only rightful government as per Article 16 of the State Constitution of Perak. This point has been categorically stated by the highly respected prince Tan Sri Tengku Razaleigh Hamzah.
- Any act to vacate the office of menteri besar and the executive council, and any advice to that effect is extra-constitutional.
- Even if sworn in, the new menteri besar and the new executive council are illegitimate.
All actions by all the actors have now become constitutionally significant, either for or against the highest law of the state.
Nizar and his executive council’s attempt to carry out their business as usual is therefore the most patriotic and loyalist act in defending the state constitution, and by extension, parliamentary democracy and constitutional monarchy.
The Parliamentary Opposition Leader Datuk Seri Anwar Ibrahim is right that this is not a collision against the palace.
Nizar is being loyal to the rule of law
(© hussein / wikipedia)
On the contrary, Nizar will go down in history as a defender of parliamentary democracy and constitutional monarchy in the 481-year-old Sultanate of Perak, politically one of the most developed states since the 1950s. He is being loyal to the political system, to the rule of law.
The subjects of Perak and citizens of Malaysia who choose to stand by the loyal menteri besar are similarly upholding rule of law and the political system.
In 1984, the year that Sultan Azlan Shah succeeded the Perak throne, he aptly defined the rule of law when delivering the 11th Tunku Abdul Rahman lecture in November:
“The rule of law means literally what it says: The rule of the law.
“Taken in its broadest sense this means that people should obey the law and be ruled by it.
“But in political and legal theory it has come to be read in a narrow sense, that the government shall be ruled by law and be subject to it.
“The ideal of the Rule of Law in this sense is often expressed by the phrase ‘government by law and not by man’.”
The Sultan’s refusal to dissolve the state legislative assembly upon request by the menteri besar was controversial. When the Sultan instructed the menteri besar to resign, the controversy became a constitutional crisis. But when the Sultan swore in the BN-installed menteri besar, he effectively conjured a new government to parallel the existing, democratically-elected one. This effectively turned the crisis into a “coup”.
Pushing the constitutional crisis into a constitutional coup is disastrous both politically and economically.
(corrected) The last of such coups happened in Sabah in April 1985, half a year after Sultan Azlan Shah’s speech. At that time, Datuk Seri Joseph Pairin Kitingan’s Parti Bersatu Sabah won a slim majority. But in a dramatic development following the counting of votes, a delegation headed by Tun Mustapha Harun of the United Sabah National Organisation went to governor Tun Mohamed Adnan’s official residence in the early hours of 22 April and got Adnan to swear Mustapha in as chief minister. Later the same morning, Adnan revoked the appointment and then swore in Pairin as chief minister due to huge public pressure.
The only democratic way out of this mess now is for the Pakatan Rakyat to challenge the legality of the BN government in court. The courts are the last resort to save democracy in Perak.
Ipoh, the next Bangkok
A growing crisis will not only reduce stable Perak in 2009 to a chaotic Sabah of 1985, but may also push Malaysia to become another Thailand.
The Government House in Bangkok during the siege by anti-government demonstrantors , August 2008
(© Craig Martell / flickr)
Constitutional crisis is costly. These are Thailand’s estimated and expected losses from its 2008 crisis: a damage of USD8 billion in the entire economy in 2008; a 9% drop in tourist arrivals from 2008 to 2009; and possibly one million job cuts in the tourism industry in 2009.
A fresh poll will channel political passions into positive competition. So, why must we risk Ipoh becoming a Little Bangkok? Some may prefer a BN state government, but why at all costs? Why not just call for snap elections?
It’s time for Sultan Azlan Shah’s good sense from 1984 to prevail: “Government by law, not by man.”
An anak Perak, Wong Chin Huat feels like a man in exile as his home state is threatened by kleptocracy and betrayal of the highest order. He will wear a black ribbon in protest and mourning, and urges fellow Malaysians to do the same. He is a political scientist by training and a journalism lecturer by trade.