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.
Crisis-turned-coup
Flowing from the principles discussed above, these are the facts:
1. 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.
2. Any act to vacate the office of menteri besar and the executive council, and any advice to that effect is extra-constitutional.
3. 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.
