Sultan must act fast to save Perak

Abdul Aziz Bari

One of the difficult issues which constantly became the point of contention between my supervisor and I, when I started my PhD degree in law sometime in early 1992, was the legitimacy of public powers vested in the ruler’s office. MCPX He maintained that such was difficult to maintain in a democracy and that the holder may misuse it. Given that a monarch is not elected such was obviously not impossible. Above all, my supervisor argued, it has the potential of compromising the very raison d’etre of the retention of the monarchy itself: to stand as the symbol of the nation, a father figure who is aloof and above political fray. I countered his argument by saying that we have seen how some good monarchs, despite being non-elected, had been able to nurture the nascent democracies in their respective countries. Top of the list are exemplary monarchs such as King Bhumipol Adulyadej of Thailand and King Juan Carlos of Spain. The latter ordered his military officers to go back to their barracks when they stormed the state legislature sometime in late 1980s. Closer to home the semi-God Thai king has intervened several times during constitutional crises, particularly the one he did during the bloody clashes in Bangkok in 1992. But of course these are exceptions rather than the rule. With benefit of hindsight I think my supervisor was quite right. What happened in Perak on Feb 5 seems to have given my supervisor’s point lots of credence. Sultan Azlan Shah and his erudite son Raja Nazrin are nowhere near the top two. Some may even say that the father and son have just disqualified themselves from the list. Much has been said about the appointment, the relevant legal provisions and so on and there is no need to be pedantic and technical over here. Let us just pick some important issues and points. These include the legality of the sultan’s appointment. My take on this is in constitutional law, unlike administrative law, legality alone will not necessarily solve the problem. A decision needs to be legitimate as well. Otherwise it would trigger another problem. Not the right move A perfectly legal decision may put the country on the road to crisis. The situation in Perak requires more than just legal acumen; it is in dire need of a great deal of maturity and statesmanship. Even though the sultan was correct in the exercise of his power of appointment; namely by personally meeting all the lawmakers claimed by the Barisan Nasional to be theirs, I do not think that was the right move under the circumstances. Such was fine after the 12th General Elections. Indeed, that was the course of action pursued by the rulers of Selangor and Perlis and indeed by Raja Nazrin himself who carried out the function in the absence of the sultan. The situation in Perak at the end of January and early Feb 2009 was different as there were reports of disappearances and even kidnapping. It has even involved the Election Commission at some point and this has made the absolute power of the state assembly’s speaker directly entangled in the whole confusion. In short, the happenings during the period made the episode something different: it was one that does not nicely fall within the formula adopted during March last year. That is why I said the sultan was wrong in appointing Zambry Kadir as the new mentri besar. Having said that, there is no need to go into details as to why I have said that the sultan did not have the power to dismiss Mohd Nizar Jamaluddin. The main argument is of course the provision in the Constitution. Added to this was the wrong move to put the government in place when the “previous government” was still around. True enough the people could not accept this. This is of course not to say that the law needs popular support. The point is simply that the people did not see the legitimacy of the decision despite it being made legally. What was done by the Barisan in Perak was some kind of blitzkrieg, to use Hitler’s strategy during World War II. But there is no need to do that as there was still a government and they have just filed an application in court to determine the status of the three lawmakers. Here lies the role of the sultan; namely to weigh the options properly and avoid being seen as taking side. As of now one cannot see how the palace could say it is neutral and impartial in the circumstances. 'Against injustice we should fight' Hence the hollowness of the Barisan’s charge of treason (derhaka) on the part of Nizar and the Pakatan Rakyat supporters. I doubt if there is such a thing in both Islamic and Malay conceptions. As the ruler is the head of Islam and the epitome of Malay civilisation and culture, perhaps it is worthwhile to mention that in Islam telling the truth before an unjust ruler is considered the highest form of piety and there is a Malay adage which says: “Raja adil raja disembah raja zalim raja disanggah” (Roughly it means: To obey the law is right, against injustice we should fight). It was reported yesterday that Zambry claimed that he had the mandate from the palace. This is utter nonsense. Even in what is known as hung parliament the role of the head of state is merely to assist the formation of government: the ruler does not provide the government the mandate to rule. That is why the Constitution says the mentri besar does not hold office at the pleasure of the ruler. It is baffling to hear what Zambry said as he used to be an exco in the state cabinet. His statement also ran counter to entire notion of responsible government which includes the cabinet principle of ministerial responsibility. It is time for Barisan to stop using the palace: it must now learn how to survive on its own as required by both the Constitution and democracy. Coming back to the ruler’s powers, the Constitution unfortunately, is silent over the order of things and so on. But I think prudence tells that power of appointment needs to be seen, in circumstances such as in Perak, together with the power to decline request to dissolve the house. Even though the commission admitted that it could not explain the circumstances, they however had recommended us to learn from the experience and practice of the older Commonwealth countries practicing Westminster democracy. It follows that the sultan should have considered the request to dissolve the house tendered by Nizar. No one knows why Sultan Azlan Shah rejected the request. Be open and transparent My view that while the ruler may point to the law it was that very law that eventually put the state in the fast lane of crisis which we now see. It is the case of applying the right law to a wrong situation. Some quarters have cautioned the critics saying the ruler know what we all do not know. And that he is in possession of information we do not have access to. But whatever it is this is a democracy where basically everybody has the right to say their views and that state governance should be open and transparent. And ours is constitutional monarchy. I believe that a dissolution, in the current confusing state of Perak, is the stone that will kill two, or perhaps more, birds. It will take care of the status of the three lawmakers, saving the palace and above all giving back to the people the right to decide who will govern the state. It is still not too late for the sultan to do that. Although the Constitution is silent, I am of the opinion that the sultan has the reserve powers to dissolve the house without any request. The basis for my contention is the constitutional law theory which puts the head of state as the guardian of the nation and the constitution. Extraordinary situations require extraordinary solutions. We have come to a crisis stage and we need an extra-constitutional measure to deal with it. It goes without saying that the constitutional provisions are meant to deal with ordinary, normal circumstances. By way of analogy, the state of affairs in Perak now requires an open heart surgery; a coronary bypass. Ordinary panadol or pain killer will not do. And only the sultan has the power to do this. Some lawyers may doubt this but we are now talking about the future of the state and democracy. The problem with some of these lawyers is that they tend to pick and choose the provisions and case law which they know and spin it around, forgetting the constitutional framework , the bigger picture as well as the intensity of the problems at hand. Above all what we are facing now is not just a legal or constitutional problem. It is far bigger than that. DR ABDUL AZIZ BARI is a professor of law who has published widely on constitutional law which includes some eight books and various journal articles including a book on the Conference of Rulers.