Feb 23rd 2010 11:48 am The state of Perak

Topic: the recent Perak court case

Date:  Saturday, the 13th of  March 2010

Time: 3-5pm, a group will be going to dinner afterwards

Location: Imperial College London

Please RSVP here.

Reading List: General/Overview

A chronology of the Perak crisis

Making sense of the Perak controversy (Malaysian Insider article by Malik Imtiaz Sarwar)

Questions to ponder

Reading List: Technical

Confidence Motions: excerpt from House of Commons Library Research Paper
Dismissal – Determination of confidence, Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli (HC(Borneo))

Lascelles Principles

The Speaker: excerpt from House of Commons Factsheet

The Sultan’s Constitutional Powers: A Comment (re Nizar v Zambry (HC(Malaya)) by Kevin Tan

Dissolution – Role of Sultan, excerpt from Federation of Malaya Constitutional Commission Report (1p – see [69])

When is a Resignation not a Resignation? A Crisis of Confidence in Sabah (re Kahar Mustapha v Mohd Said Keruak (HC(Borneo)) by Andrew Harding

Coping with Party-Hopping by Shad Saleem Faruqi

The Morality of Members of Parliament Crossing the Floor by William Leong

MB v MB, Federal Court Judgement

ADUNs v Speaker, Federal Court Judgement

BN v Speaker, Federal Court Judgement

Summary of the discussion

About fifteen people turned up for the discussion on the constitutional crisis in the state of Perak, based loosely on the reading list above and in particular the document ‘Questions to Ponder’.

Called ‘the constitutional crisis of our generation’, these recent events have woken (young) Malaysians up to the importance of documents such as the Constitution and Standing Orders. The Perak saga involved different parties such as Sultan Azlan, politicians from both sides, civil servants, the rakyat and civil society. It reveals a lack of understanding of the spirit of constitutional monarchy and also separation of state, government and political party among Malaysians.

After initial reactions to the case, the discussion turned to whether it is morally acceptable for members of parliament to cross the floor. Perhaps only as a last resort action ‘against’ their party, which is true of none of the recent cases. The principle of freedom of association would appear to be an argument in favour. The article by William Leong suggests that our political system is such that MPs are voted ‘as themselves’ and not as placeholders for their parties. This may be true in theory, but if the perception is otherwise, that is to say that people vote for parties rather than candidates then there is a moral question.

Do people vote for parties or for candidates? It would appear sometimes for one and sometimes for the other. (It was noted that in Malaysia people sometimes also vote on ‘religious’ lines.) Example of Sharir Ahmad who resigned from BN and was returned by his constituency as an independent, thus causing then PM Mahathir to amend the constitution (1990) such that MPs who resign are barred from standing for five years. (This was clearly in bad faith.) Another example of a Kluang MP who was only born there and was voted in simply because of the BN banner.

People should vote only for candidates and not for parties. No, people should vote for whom/whatever they want – it is their right. An MP can determine whether or not it is OK to party hop based on whether people voted for him or his party. In the two cases above, this was clear. This is ideal but unworkable given the character of most politicians.

It was proposed that, as a compromise, MPs who party-hop could be required to resign after three or six months. This allows government to continue in the case of an emergency and removes most benefits to party-hoppers. Some disagreed with this proposal based on freedom of association. Yes, but it is constrained by the community that one is in.

What mechanisms do parties have to prevent hopping? Holding undated resignation letters is immoral. Is it possible to have a contract between a candidate and his party? No, issues of public office cannot be made a matter of private contract – no court would enforce it.

Would we be having this discussion if 9/16 had happened? PR promised to dissolve Parliament after forming the government. Do we believe that?

A technical question was raised about how confidence is determined in the assembly. Generally, any supply bill (that is to say involving money) is traditionally seen as a vote of confidence. The same goes for the budget, any major piece of legislature and, in England, the Queen’s speech. Other things can also be made issues of confidence; this is usually done to pressure party members to vote along party lines.

Next, the discussion turned to the actions of DS Nizar, in particular whether he should have resigned, given the action of the Sultan not to accede to his request to dissolve the assembly. It was quite clear that he has lost the confidence of the majority of the ADUNs. Yes, but in the Malaysian context, would resigning have been seen as ‘going down too easily’? Perhaps not if the move was properly explained. This is hard to do when the media is controlled; it is hard to be gentlemen when the other side are not. The announcement by the PM on national TV of the fall of Perak was a clear indication of federal interference in state matters, not to mention government control of the media.

It was opined that finally neither Sultan Azlan nor DS Nizar acted in the best interests of the state – a case of bad faith all the way on all sides, a statement which is true of all actors in the larger story as well. However, probably the biggest losers in this story are not BN or PR but the Perak royal family, who have lost credibility in the eyes of their subjects.

There are arguments on both sides for whether the Sultan did the right thing; however, if he wanted to spare the state more elections, he could simply have summoned a sitting of the DUN to put it to the vote. He should not have decided on behalf of his subjects. This is complicated by the fact that the Speaker would not have recognised the three party-hoppers. Yes, but it would still have been 28-27 as the Speaker does not vote. In Malaysia, he would have. So it would have been inconclusive.

The point of highest moral hazard was when the Speaker was dragged out of the DUN. (At least he was not beheaded!) The civil service was clearly one-sided in this matter. Does the average Malaysian realise this? There is a lot of confusion over the distinctions between the government, the state and the civil service. Example: ‘Satu lagi projek BN’ on roadworks, as if the party BN owned the JKR.

There were some questions about the role of the Speaker. Why was he not independent in this matter? On what basis was he appointed Speaker? In the UK, the Speaker has to be an MP or ADUN. In Malaysia, this is no longer the case. In the UK, the Speaker resigns from his party. In subsequent elections, no major party stands against him/her. His/her constituency is dealt with directly by ministers. All of these are conventions and not law.

Conventions are very important, especially in legislative assemblies because they make the laws that govern the whole country and are in some sense above the law. They are/should be governed by honour. As in game theory, someone has to make the first move to get the ball rolling. Who will be the first Speaker to take the risk of resigning from his party?

It is interesting how Malaysians pervert parliamentary conventions. E.g. in other countries the Speaker calls in MPs for a vote by voice. In Malaysia, the Speaker calls in BN MPs when there are not enough of them to pass a government bill. The last budget nearly failed to pass because not many BN MPs were in Parliament. It was noted that this would have been seen as a vote of confidence…under certain conventions.

What other conventions should we try to adopt? What rules are there for bills to be debated? In the UK there are opposition days. This probably helps with having substantive debate and bipartisanship.

The last part of the meeting was devoted to preparing questions for YB Datuk Seri Nizar during his visit the following weekend. The meeting was adjourned at 6pm after several participants had to leave; the rest headed out for dinner after the meeting.

Disclaimer: As with most of our meetings, this discussion was held under the Chatham House Rule; this summary has been written in accordance with this. Please note that all views expressed above are of the participants and not of MF as a whole.