REFLECTING ON THE LAW
By SHAD SALEEM FARIQI
There are no winner-take-all solutions to the Perak political crisis, a hydra-headed monster that cannot be eliminated by ding-dong judicial decisions.
THE Perak political crisis can be likened to a malignant cancer that is voraciously spreading to the lymph nodes of our other institutions – the Sultanate, the judiciary, the federal executive, the civil service, the police, the law officers of the Crown, the court registry, the Anti-Corruption Commission and the Election Commission.
The longer we wait, the farther the affliction will spread. It is time, therefore, to stop this madness, this divisiveness, this polarisation.
There are no black and white, open and shut, or simple solutions.
The issues are so complex and so interconnected that arguments from both sides of the divide have depth and richness.
In sych a politically-charged situation, the courts cannot supply any satisfactory solutions. The judiciary is suited to resolving legal issues, not political ones.
The courts usually provide piecemeal solutions to simple, succinct questions.
But when there is a bottomless cesspool of polarising and contentious issues, no court, here or anywhere, can wipe away the discord and restore harmony and sanity.
Thus, even if after an agonizingly slow course of interim proceedings, ap peals and cross appeals there is an authoritative judicial determination of who the legitimate Mentri Besar is, a plethora of other connected is sues — each capable of toppling the apple cart — will still be left unaddressed.
Among the issues are the validity of the resignation letters by the three who opted out of Pakatan Rakat to be Independents friendly to Barisan Nasional; the unilateral power of the Speaker to declare Assembly seats vacant; and the power of the Election Commission to make a ruling on the same issue.
If there are calls for a vote of confidence on the floor of the House, the Speaker may frustrate it by disqualifying and barring 10 out of 59 members of the Assembly from attending the proceedings.
Is the Speaker subject to a restraining order from the court, or are proceedings in the Assembly immune from judicial interference?
If the result of a vote of confidence is influenced by exclusion of a large number of members, is the Sultan bound by it?
Or does he have any other way of determining the question of “confidence of the members of the Assembly”?
There are disagreements about the legal validity of the “assembly un der the tree” and the resolutions it passed.
The removal of V. Sivakumar as Perak Assembly Speaker and the installation of Datuk R. Ganesan as the new Speaker aroused deep revulsion and raised many legal issues.
The repeated dismissal and rein state ment of the Secretary of the Perak Assembly, the State Secretary and the State Legal Advisor pose ma ny queries.
Scores of local authority personnel have lost their jobs in the musical-chair manner in which governments are rising and falling in Pe rak.
Till a judicial decision is made on the validity of the removal and the reinstatement, there will be doubts about the legality of any decisions they may have made.
Partisan tactics by the police within the premises of the State Assembly raise constitutional issues of the sanctity and privileges of state as semblies.
The officers involved may one day have to appear before the Privileges Committee to answer charges of contempt.
In sum, the political crisis in Perak is like a hydra-headed monster that cannot be eliminated so easily by ding-dong judicial decisions.
Let us stop this insane and naked show of unprincipled politics.
Let us accept that in this stalemate, there are no winner-take-all solutions.
For this reason, recourse to the courts is pointless. The warring factions should negotiate and accommodate.
There are four more years to the next general election.
Barisan and Pakatan can agree to share two years each at the helm.
Alternatively, there is the political possibility of appointment of a neutral, caretaker government advising dissolution and state elections within 60 days from the date of dissolution.
There is the legal sledgehammer of federal intervention through an emergency proclamation under Arti cle 150 of the Federal Constitu tion, as happened in Sarawak in 1966 and Kelantan in 1977.
This may restore order out of chaos to pave the way for a state poll in due course of time.
The country as a whole is more important than the fate of Barisan or Pakatan in Perak.
In Rome, Nero played the fiddle while the city burned. We should not allow that to happen to us.
Perak politicians have no right to paralyse the rest of the country or to distract us from the many urgent and daunting tasks staring us in the face.
Among them are an economy reeling under the effects of the world financial turmoil, racial polarisation, the conflict between civil and syariah courts, and the deeply divisive is sue of religious conversion of minors upon one parent changing his or her religion.
The liberalisation of the economy requires deft handling. The review of such controversial laws as the ISA requires thorough con sultation and deep soul-searching. The education system is ripe for review.
Because of the shenanigans in Perak, the country is on the verge of a political precipice.
We are afraid both to climb or to fall. But the ground is slipping be neath us.
Quick action is needed.
The public is fed up with political intrigues and wishes a closure to this Perak temasya.
Perhaps the Conference of Rulers can exercise its powers under Article 38 (3) to discuss issues of national importance and to propose some viable solutions to the Perak crisis.
Perhaps the Yang di-Pertuan Agong can draw on his vast prerogative power to advise, caution and warn about the long-term effects of Perak to the integrity of our legal and political system.
Perhaps politically disinterested, towering personalities like Tun Musa Hitam or Tan Sri Razali Ismail could be roped in to broker peace and to stop this haemorrhaging of public trust.
We have had enough of political mudslinging and acrimony. We need to move on to the real problems and challenges of living.
Prof Dr Shad Saleem Faruqi is a Professor of Law at Universiti Teknologi Mara
Extracted from Loyarburok, 23 May 2009
ReplyDeletehttp://www.loyarburok.com/selected-judgments/notes-of-decision-in-zambry-v-nizar-case-coa/
"4. There is no mandatory, express requirement that provides for a motion of no-confidence to be passed in the State Assembly against the Respondent before he ceases to command the confidence of the majority.
5. The fact that the Respondent has ceased to command the confidence of the majority may be ascertained through extraneous means."
I have to respect the decision of the COA. However, it is difficult to accept, based on the notes, that-
a) for a case of such importance, the decision can be made in such a hasty and no-frills manner, and
b) the decision seems to be based on the fact that the no-confidence of the majority can "be ascertained through extraneous means".
The "extraneous means" employed by BN lacked the necessary transparency and integrity. How can such means be acceptable?