Checkmate Barisan Nasional in Perak

Like most ordinary people, I was initially very confused by all the articles and commentaries on the Perak constitutional crisis. Just like reading an interesting book, I was anxious to know what the ending would be. There is one important difference though.

Unlike a book, the ending of this crisis – for better or for worse – will affect my life and the lives of the ordinary rakyat of Perak, as well as all Malaysians, given the ramifications that the outcome will have on the constitutional process of political power and governance.

In recent weeks I have become increasingly concerned with the twists and turns in this modern version of the Perak wayang kulitwhich – as with some of the stories found in the traditional form – contains strong moral and ethical elements.

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These recent developments include the infamous act of demolition of the ‘Democracy Tree Plaque’ put up by the rain tree and the recent action taken by the federal government to charge Karpal Singh under the ISA for saying that the Perak Sultan can be sued.

All these events seem to indicate that the Barisan Nasional government has prevailed in its attempt to oust the Pakatan Rakyat state government from power. Reading the official media accounts and analysis one can certainly be forgiven for thinking this. I, too, similarly was of this view until I attended the talk given by former Appellant Judge NH Chan at the Perak Bar Council on March 19.

The title of his talk was ‘How to judge a judge’. After the talk, I asked a few questions and the answers I got, clarified all my doubts. In the English or Western chess game, the situation is now called zugzwang. It is a German word to describe a chess player’s position when he has to make a move that will only worsen his position.

The legality of the Perak assembly convened under the rain tree on March 3, is the key to resolve the impasse. The following is my analysis of the political chess game which has now taken place in Perak and the moves by the two opposing sides.

1. According to Article 72(1) of the federal constitution, the validity of any proceeding in the legislative assembly of any state shall not be questioned in any court.

2. The assembly is the master of its own procedure and laws. Any redress must be made in and come from within the House. In other words, a member can move a resolution to rectify any perceived error or irregularity.

3.The jurisdiction of the Perak assembly over its own members and its right to impose discipline is absolute and exclusive.

4. Therefore, the suit filed by Zambry Abdul Kadir and his de factoexco to challenge the legality of their suspension by Mohd Nizar Jamaluddin is doomed to fail, if the proper law is applied.

5. Such being the case, the BN does not command a majority in the assembly.

Without Zambry and the six other suspended members, BN only has 21 members. And even assuming the three others who have ‘resigned’ are included, BN is still in the minority with 24 members against PR’s 27.

6. We have a unique situation now where the ‘new’ mentri besar would not dare call for any sitting of the assembly because that would expose his vulnerability. Furthermore, the fact that he is unable to attend the sittings is a good enough reason for him to resign from the assembly as he is legally and constitutionally unable to present the Budget and also defend his policies in the assembly.

7. Zambry’s position seems now to be untenable as it is contrary to established constitutional theory whereby the chief executive should be a member of the assembly. It is a matter of time before he is forced to resign by sheer force of circumstances.

8. Before the assembly meeting under the tree, the state assembly met on Nov 11 and 12, 2008. Assuming that all the BN elected assembly persons attended the assembly, they did not attend the assembly convened under the tree.

According to Article (xxxv) of the Perak constitution, the assembly can declare the member’s seat vacant if he or she is absent for assembly meetings for a period of six months. So by May 13, 2009, if an assembly is called, the BN members will be voted out and if they do not attend the assembly, their seats will be automatically declared vacant.

Therefore, it is a checkmate and the game is over.

To enlighten readers further, let me explain the term ‘checkmate’ in chess. It is when an opponent has no legal move to protect his king.

As we all know, currently there is no government in Perak. The delay in resolving the political crisis is affecting the state’s economy and social order – not to mention political order; and sooner or later all Perakians will suffer.

The BN leaders must consult their legal team and quickly resolve the problem. What is the opinion of the Queen’s Counsell? If what I wrote is legally correct, they should not wait till May 13, 2009 to be forced out in ignominy and disgrace.

A quick return to the ballot box to see which party the Perak electorate wants as its state government is the only morally and legally defensible option for all stakeholders. It is also the way out of this political quagmire.

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