RESOLVING THE CONSTITUTIONAL IMPASSE IN PERAK

Transcription

1 RESOLVING THE CONSTITUTIONAL IMPASSE IN PERAK (1) The decision made by the Speaker of the Legislative Assembly of Perak on 18 th February 2009 to suspend the Menteri Besar, Dr Zambry and 6 members of the Executive Committee from the Legislative Assembly has resulted in a constitutional crisis of the highest order. This note considers options to resolve it. It is critical for a proper understanding of the crisis to keep in mind that power is distributed among numerous branches or organs of government under a constitutional system. In general terms, the system that operates in Perak resembles that of the federal system in Malaysia, which itself is modelled on the Westminister type of government based on parliamentary democracy and headed by a constitutional monarch. One of the pillars of this system is the separation of powers between the Executive, Legislature and Judiciary, each being independent of the other, and without one branch dominating the others: an instance of separate but equal. (2) By reason of the doctrine of the separation of powers, regardless of the merits or demerits of the Speaker s decision, it cannot be challenged in the Courts: see Article 72 of the Federal Constitution which reads:- (1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court; (3) No person shall be liable to any proceedings in any Court in respect of anything published by or under the authority of the Legislative Assembly of any State. Article 63 of the Federal Constitution confers similar privileges to the Federal Parliament. Likewise, Paragraphs 2 and 3 of the Schedule to the Legislative Assembly (Privileges) Enactment, 1959 of Perak. 1

2 (4) Articles 63 and 72 of the Federal Constitution merely state a high constitutional principle of antiquity which was confirmed by the Glorious Revolution of England and the Bill of Rights of Article 9 of the Bill of Rights reads:- Freedom of Speech That the freedome of speech and debate or proceedings in Parlyment ought not be impeached or questioned in any Court or place our of Parlyment In Prebble v. Television NZ LM 1, a recent appeal to the Privy Council from New Zealand, Lord Browne-Wilkinson observed: In addition to Article 9 of the Bill of Rights, there is a long line of authority which supports a wider principle, of which Article 9 is merely one manifestation, viz that the Courts and Parliament are both astute to recognize their respective constitutional roles. So far as the Courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges: Burdett v. Abbot 2, Stockdale v. Hansard 3, Bradlaugh v. Gossett 4, British Railways Board v. Pickin 5 and Pepper v. Hart 6 As Blackstone said [1 B1 Com (17 th Ed) 163] : The whole of the law and custom of Parliament has its original from this one maxim, that whatever matter arises concerning either [1994] 3 All ER 407, 413 [PC] [1811] 104 ER 501 [1839] 112 ER 1112 [1884] 12 QBD 271 [1974] 1 All ER 609 [HL] [1993] 1 All ER 42 [HL] 2

3 House of Parliament ought to be examined, discussed and adjudged in that House to which it relates, and not elsewhere (5) This well established constitutional principle has been accepted in at least 5 reported decisions of our Courts, and therefore also represents the law in Malaysia: a. Fan Yew Teng v. Government of Malaysia 7 - Chang Min Tat J. b. Lim Cho Hock v. Speaker, Perak State Legislative Assembly 8 - Eusoffe Abdoolcader J. c. Tun Mustapha Harun v. Legislative Assembly of Sabah 9 - Abu Mansor J. d. Tun Mustapha Harun v. Tun Mohammed Adnan Robert 10 - Abu Mansor J. e. Haji Salleh Jafaruddin v. Datuk Celestine Ujang 11 - George Seah ] - Mohamed Azmi ] SCJ - Wan Hamzah ] Save for the Fan Yew Teng case which considered Article 63, the 4 other cases interpreted Article 73. (6) Thus, it is a settled principle of constitutional law in Malaysia (and elsewhere in the Commonwealth) that a Speaker s decision cannot be challenged in legal proceedings. This does not mean that any person aggrieved with a decision of the Speaker is without remedy. His remedy is to bring it to Parliament or the Legislative Assembly, as the case may be. Applying that [1976] 2 MLJ 262 [1979] 2 MLJ 85 [1986] 2 MLJ 388 [1986] 2 MLJ 391 [1986] 2 MLJ 412 [SC] 3

4 principle to the instant case would mean that Dr Zamry cannot appeal to the Court to overturn the Speaker s decision to suspend him from the Legislative Assembly; instead, Dr Zamry has to appeal to the Perak Legislative Assembly. It is clear from media reports that Dr Zamry does not intend to pursue that remedy. Neither can Dr Zamry or any other person or authority remove the Speaker from office because Article 36A (2) of the Perak State Constitution specifies the 4 circumstances under which his office is vacated, and it does not extend to Dr Zamry: the most relevant being (d) if the Assembly at any time so resolves. Hence, only a resolution passed at the Assembly can legally remove the Speaker. (7) The constitutional stand-off has occurred because the Speaker s decision, which is valid until set aside by the Legislative Assembly, has the effect of suspending Dr Zamry from the Legislature, which is a requirement under Article 16(2)(a) of the Perak Constitution, indeed, a condition precedent to Dr Zamry holding the office of Menteri Besar. Thus, the continued holding by Dr Zamry of the office of Menteri Besar is questionable in constitutional terms. (8) In these circumstances, the Sultan of Perak is entitled to inform Dr Zamry that unless he takes urgent steps to cause the Legislative Assembly to over-turn the Speaker s decision to suspend him (Zamry), he cannot remain as Menteri Besar because he is not a sitting or participating member of the Legislative Assembly, contrary to Article 16(2)(a), if not in its letter, certainly in its spirit. (9) Alternatively, His Royal Highness can exercise the power/discretion conferred by Article 36(2) of the Perak Constitution which reads: His Royal Highness may prorogue or dissolve the Legislative Assembly. As a constitutional monarch, the Sultan of Perak is given power to dissolve the State Legislative Assembly in two separate situations or fact patterns. First, under Article 16(6) when a Menteri Besar who no longer commands the confidence of 4

5 the majority of the members of the Legislative Assembly requests the Sultan to dissolve the Assembly. For this situation to apply, 2 conditions must be satisfied: the Menteri Besar must no longer enjoy confidence of the members of the House and as outgoing Menteri Besar makes the request to dissolve to the Sultan. Secondly, under Article 36(2). Article 36 deals with summoning, prorogation and dissolution of the Legislative Assembly. Article 36(3) states that the Assembly s maximum term is 5 years. However, if a shorter term is required, then Article 36(2) becomes applicable, and the Sultan can dissolve the Assembly. Constitutional convention is clear: the monarch acts on the advice of his first Minister (whether Prime Minister or Chief Minister) when dissolving the Legislature before the maximum duration of 5 years. Thus, the Sultan in normal circumstances is required to act on the advice of Menteri Besar Dr Zamry when exercising His Royal Highness s discretion under Article 36(2). Incidentally, identical provisions exist in the Federal Constitution : see Articles 43(4) and 55(2). (10) A strong case can however be made that objectively speaking normal circumstances have not existed in Perak since the beginning of February There is no doubt that the 3 branches of government in Perak are on a collision course. Decision-making has been paralysed. When the world is facing the greatest economic and financial crisis for 80 years since the Great Depression, the Perak State government is rudderless. More significantly, from a constitutional perspective, there are material changes in circumstances from 5 th February 2009 when the Sultan refused to dissolve the Assembly on the request of the out-going Menteri Besar Nizar and instead appointed Dr Zamry as Menteri Besar to the present time (23 rd February 2009), and, in particular, the Speaker s decision to suspend Dr Zamry and his 6 colleagues from attending the Legislative Assembly. In these extreme circumstances, the Sultan can depart from convention by declining to seek or rely upon the advice of Dr Zamry s government, and should act in his personal discretion by dissolving the Assembly pursuant to Article 36(2). In so acting, His Royal Highness can take as the paramount consideration the wishes of the rakyat, that is, the will of the people. Ultimately, a constitutional monarch s primary duty is to preserve, protect and promote the interests of his people: after all, it is their government, and the voters should 5

6 have the final say. Apart from being the best constitutional option in resolving the impasse, it will accord with democratic principles. Finally, compared to other options, dissolution of the Assembly and the calling of new election has the added advantage of finality in that will determine all the problems once and for all, and confer moral, political and legal legitimacy to the freshly elected government. Dated this 23 rd day of February,