comment Is there such a thing as a constitutional crime or a constitutional scandal or a constitutional error? Not being trained legally, I can only surmise that there must be such a thing.

Why? Well, whatever the reasons, the outcome of a crime, scandal or error is regrettably the same. A constitutional crisis or impasse.

It may have dire consequences too, such as what we are witnessing in Perak - instability and animosity - is the antithesis of the spirit and objective of having the constitution in the first place.

nizar jamaluddin dr zambry abdul kadir perak Perak has two menteris besar and, along with this, two state governments. Whoever has created this acrimonious impasse has surely has committed an error, perhaps a genuine one.

If it is well contrived and strategically executed, with all its evil or sinister intention, it could be tantamount to a scandal or a crime, in layman’s terms.

Since it is counter-productive to be engaged in a blame-game, this article is an attempt at providing alternative perspectives to what is turning into a watershed event in political history, reminiscent of the sacking of Stephen Kalong Ningkan from the Sarawak state assembly in 1966.

I’m not about to place all the blame on the sultan of Perak. Let’s first recall the action of the Election Commission (EC) which could very well have averted the crisis.

The EC acted unconstitutionally and beyond its jurisdiction in refusing to recognise the decision of Perak speaker V Sivakumar on the vacancy of the Changkat Jering and Behrang seats initially.

ec election commission abdul rashid abdul rahman blunder Former EC head Abdul Rashid Rahman has said the commission’s constitutional duty was to act on the speaker’s official notification and call for by-elections within 60 days.

It was surely not the EC’s business to usurp the jurisdiction of the courts to adjudicate on the speaker’s decision to declare the seats vacant. Any legal challenge should have come from the representatives if they wished to challenge the legality of the resignations.

In this case, the EC even acted as a court of law - in a decision which was clearly influenced by the political interests and considerations of the Barisan Nasional (BN).

As the court ruling would have taken time to materialise and the crisis was fermenting, it was then in the hand of the Perak sultan to exercise his judicial acumen to thwart all possibility of an impasse.

He was, after all, former Lord President and an astute personality who has written books on law.

All hopes were naturally pinned on Sultan Azlan Shah’s decision, but revisiting his judgment makes one really wonder what has gone wrong with this great legal mind.

Settling the dispute

That Pakatan Rakayat MB Mohd Nizar Jamaluddin’s request for dissolution of the assembly was in the best interests of the public is open to debate. It may have served Pakatan’s interests but would BN dare face another round of humiliation?

But the bottom line in a deadlock such as this is that voters would have been the best judge in the dispute, if it had been taken to a state-wide election. Could anyone possibly dispute that? No! That would have been the most democratic option.

malaysian law conference 291007 sultan azlan shah 1 Not willing to fulfill Nizar’s request, the sultan has contradicted the position he preached in 2004, in a book called ‘Constitutional Monarchy, Rule of Law and Good Governance’.

He wrote: ‘Under normal circumstances, it is taken for granted that the Yang di-Pertuan Agong would not withhold his consent to a request for dissolution of parliament. His role is purely formal.’

He also noted that no sultan or Agong had withheld consent to dissolve a legislative body, except in Kelantan in 1977.

The state constitution clearly provides in Article 16.6: ‘If the menteri besar ceases to command the confidence of the majority of the members of the legislative assembly, then, unless at his request His Highness dissolves the legislative assembly, he shall tender the resignation of the executive council.’

The sultan, having refused the dissolution of the state assembly, could have alternatively summoned a state assembly proceeding, as also provided for by the state constitution. He could have suggested a vote of (or no) confidence be taken before telling Nizar to resign and hand over power to BN.

Interestingly enough, Article 16.7 reads: ‘Subject to paragraph (16.6) a member of the executive council other than the menteri besar shall hold office at His Highness’ pleasure, but any member of the council may at any time resign his office.’

This directly means that the person of the menteri besar shall hold office, in so far as he enjoys the confidence of the majority of the assemblypersons (not so much at the sultan’s pleasure). Again a vote of (or no) confidence to ascertain that position, is best done in a state assembly sitting.

candle light vigil in perak 070209 01 You can’t help the rakyat believing that until the MB is defeated, either in the assembly or through the ballot box, he still is the legitimate menteri besar.

Quite sadly, the sultan was adamant about what he wanted - for Nizar to step down immediately and a few hours later, to back the appointment of the new menteri besar.

That was immensely regrettable that sultan could no longer grasp the heartbeat of the majority of his people who had voted in the Pakatan-led government 11 months ago. Many have alluded that his discretionary power has played into the hands of the other power-that-be.

Consequently, what has happened is now widely regarded as a political coup d’etat staged by the Umno-BN government, when the overwhelming majority of voters wanted the matter settled through the ballot box.

Going against the rule of law places the state in the act of forming an illegal government. The sultan must undo the crisis, judiciously and beyond partisan interests. Otherwise he runs the risk of living with an illegitimate MB and an illegal state government advising him.

Wouldn’t it be in the best interests of the state and rakyat for the sultan to ask for a fresh mandate and enable the state government to start on a clean slate?

He does have the ‘reserve power’ to dissolve the House, as suggested by a constitutional law professor.

DZULKEFLY AHMAD is the head of PAS research centre and the MP for Kuala Selangor.