Nizar’s case decided tomorrow at Putrajaya
Regardless of points of law or consideration of justice, a ruling in favour of ousted Perak menteri besar Mohd Nizar Jamaluddin may mean more trouble ahead for the Silver State.
“Should the court rule in favour of Nizar tomorow, it would put the state in a difficult position,” said renowned constitutional law expert Abdul Aziz Bari.
The UIA law professor explained that in the past year or so, Zambry had made a lot of decisions in his ‘rule’ over Perak.
“A ruling in favour of Nizar would render those decisions illegal,” he stressed.
This situation will surely wreak havoc with the Perak government, especially in its currently fragile state. As it is, the state is already purportedly suffering a loss of investor confidence.
A decision for Nizar may unravel all the administrative decisions of the past year or so, including the recently passed budget.
Abdul Aziz also refuted suggestions from certain quarters that the courts make a prospective ruling to avoid that difficulty.
‘Prospective decision improbable’
In most cases, the law would apply retroactively, meaning that the decision decided on today will also be applied to past events in relation to the case.
There are arguments that in the Perak situation the law should only apply prospectively, that is, only to events transpiring after the date of the judgement.
However in this case, the new MB will of course need to put his own policies in place and remove those of his predecessor. Zambry did the same when he came to power.
“I personally just do not see how that (a prospective ruling) can be done,” he added.
‘Wife with uncertain husbands’
The root of this problem, Abdul Aziz contends, were the gross judicial errors committed by the Court of Appeal in the first place.
“It was wrong for the Court of Appeal to suspend the High Court ruling which held that Nizar was the rightful MB last year.
“The judges in the appellate court should instead have made a ruling; either confirming or reversing the high court’s earlier decision,” he said.
Abdul Aziz (right) likened what the Court of Appeal did was like allowing a man (Zambry) whose status as a husband was still unclear to live with a woman (Perak) whose marriage to another man (Nizar) was still undecided.
The decision to simply suspend the earlier ruling affirming Nizar as MB, he believes, is like allowing the man (Zambry) to cohabit with the said woman (Perak) until it eventually led to the birth of children.
The ‘children’ in this case being the decisions Zambry has made since.
“But then one should not be too surprised with the clumsy manner the judges handled the Perak case. This was not the first time the judiciary has erred,” he added.
Abdul Aziz gave the example of how a magistrate granted an injunction (to the police) to prohibit citizens from exercising their constitutional right to assemble peacefully as granted under article 10(1) of the federal constitution.
“Under this (constitutional) provision only parliament has the power to deny that right,” he exclaimed.
He also pointed to another case in which the Federal Court in 2005 ruled that the prohibition on gender discrimination under the constitution did not apply to MAS as it was a private company.
This, Abdul Aziz said, obviously ran counter to the principle of constitutional supremacy contained by the constitution.
He also gave an example when a court decision could throw a state into turmoil. In 1966, the first Sarawak Chief Minister, Stephen Kalong Ningkan, was ousted when the state governor showed him a letter of no confidence issued by 21 out of 42 legislators and asked Ningkan to resign as chief minister.
Ningkan refused, saying the letters were not the equivalent to a vote of no confidence in the state legislative assembly. He was sacked by the governor but eventually reinstated by the Borneo High Court, which saw the necessity of a formal vote of no confidence.
Abdul Aziz said the court was right in its decision, but it catapulted the state into chaos, when the federal government, upset and embarrassed, declared a state of emergency and suspended the state constitution.
The Perak hullabaloo
The hullabaloo surrounding the Perak case, both in the past and impending future, he said, underlined the point that taking political problems to court, was not the answer. “Especially when judges fail to act swiftly and correctly,” he concluded.
Abdul Aziz’s view is echoed by others. Indeed there are many who feel that the right to determine the government of Perak should have been returned to the people.
February 07, 2010 12:08 PM
Chronology Of Events In Perak Political Crisis
IPOH, Feb 7 (Bernama) — Following is a chronology of the events which unfolded during the political crisis in Perak after the 12th general election on March 8, 2008, leading up to the ruling on Tuesday (Feb 9) of the Federal Court on who will be rightful menteri besar of Perak — the current Datuk Seri Dr Zambry Abdul Kadir of the Barisan Nasional (BN) or his predecessor Datuk Seri Mohammad Nizar Jamaluddin of PAS from the DAP-PKR-PAS pact.
17 March 2008:
– Mohammad Nizar, the state assemblyman for Pasir Panjang, is sworn is as the menteri besar of Perak.
1 Feb 2009:
– Perak State Assembly Speaker V. Sivakumar announces he has received the resignation letters of Behrang assemblyman Jamaluddin Mat Radzi and Changkat Jering assemblyman Mohd Osman Jailu. Both assemblymen deny they have resigned.
3 Feb 2009:
– Election Commission (EC) decides Behrang and Changkat Jering seats are not vacated and as such by-elections are not required for the constituencies.
4 Feb 2009:
– Then Deputy Prime Minister Datuk Seri Najib Tun Razak announces that Perak BN has a simple majority to set up the state government after two PKR assemblymen and one DAP assemblyman quit their parties and become independent assemblyman friendly to the BN.
Perak BN and Pakatan Rakyat both have 28 seats each in the state assembly while three assemblymen are independents.
5 Feb 2009:
– A media statement issued by the office of the Sultan of Perak states that the sultan will not dissolve the state assembly and has asked Mohammad Nizar and the state executive council to resign or their positions will be deemed to have become vacant.
6 Feb 2009:
– Dr Zambry is appointed as the 11th menteri besar of Perak, replacing Mohammad Nizar.
– BN officially takes over the administration of the Perak government.
13 Feb 2009:
– Mohammad Nizar initiates legal action, seeking a court declaration that he is still the rightful menteri besar and an injunction prohibiting Dr Zambry from discharging his duties as the menteri besar.
6 March 2009:
– High Court Judge Lau Bee Lan refers to the Federal Court for an explanation of constitutional issues in the summons filed by Mohammad Nizar challenging the validity of the appointment of Dr Zambry as the menteri besar of Perak.
23 March 2009:
– Federal Court decides that the Mohammad Nizar vs Dr Zambry case be sent back to the High Court.
3 April 2009:
– Mohammad Nizar is given the “green light” by the Kuala Lumpur High Court to challenge the validity of appointment of Dr Zambry as the Perak menteri besar following a ruling by Judge Abdul Aziz Abdul Rahim that the application filed by Mohammad Nizar in February was not frivolous or vexatious and that there was a prima facie case to be argued in court.
11 May 2009:
– High Court declares Mohammad Nizar as the rightful menteri besar of Perak after finding that he had never vacated his post as he had not lost the confidence of the majority of the state assemblymen.
12 May 2009:
– Dr Zambry remains as menteri besar until the Court of Appeal hears his appeal against the High Court decision declaring Mohammad Nizar as the right menteri besar following Court of Appeal Judge Datuk Ramly Ali’s decision allowing Dr Zambry’s application to stay the execution of the High Court ruling.
22 May 2009:
– The decision of the High Court is dismissed by the Court of Appeal which declares Dr Zambry as the rightful menteri besar in accordance with the constitution.
19 June 2009:
– Mohammad Nizar files leave application to Federal Court to challenge Court of Appeal decision.
5 Nov 2009:
– Five-man bench of Federal Court adjourns decision to Feb 9, 2010 after hearing submissions.
The Federal Court is expected to make its decision tomorrow regarding who should be the state’s rightful menteri besar, with the possibility of a snap election being called after that.
The majority of the critical 24 seats are Malay constituencies located in rural or semi-rural areas, and accordingly, Malay votes will be vital in determining the final winner of any snap election.
All these state seats were only won by a mere 10 percent majority in last General Election, and a 5 percent swing would result in a change of party.
12 marginal seats are now occupied by Umno, while the remaining seats are being filled by Pakatan.
There are total of 59 parliamentary seats in Perak, of which Pakatan won 31, in the last general election, with Barisan getting 28.
All of Umno’s marginal seats are Malay constituencies, while Pakatan have eight such seats, bringing 20 the total number of Malay-majority constituency seats.
Those marginal seats owned by Umno include Pengkalan Baharu, Kubu Gajah, Alor Pongsu, Manjoi, Sungai Rapat, Selam, Kamunting, Rungkup, Manong, Kampung Gajah, Sungai Manik and Lintang.
Pakatan’s eight marginal Malay seats are equally owned by PAS (Lubuk Merbau, Selinsing, Changkat Jong and Titi Serong) and PKR (Kuala Kurau, Kuala Sepatang, Changkat Jering and Behrang).
Interestingly, almost all the marginal Malay seats were contested between Malay candidates, with the exception of Kuala Sepatang; a seat with a significant number of Chinese voters and was contested by two Chinese candidates from Gerakan and PKR respectively.
Four marginal seats have a non-Malay majority, including Kepayang, Pokok Assam and Malim Nawar (won by DAP) and Teja (won by PKR).
It is widely believed that Malay voters – especially those in rural areas – will swing back to BN, as Umno has played up the issue of penderhaka and boneka against Pakatan MB Nizar Jamaluddin (left). It is further expected that more Chinese voters will turn against BN, and the Indian votes will be split.
Sources from Pakatan estimated that in last year’s Bukit Gantang by-election, they got and additional 15 percent to 20 percent of Chinese votes, while 4 percent of Malay voters went back to BN.
PAS face the highest risk
On the surface, if Malay voters swing back, Umno will have advantage in these majority-Malay marginal seats. However, it also depends on how many Chinese voters turn to Pakatan, and offset the swing in these constituencies.
On this basis, Umno should be able to wrest back those seats with a high Malay majority, while both parties will have a tough fight in constituencies with significant numbers of Chinese voters.
Hence, among the three Pakatan parties, PAS contestants in Malay majority seats face a higher risk in the coming election, as the party might lose most of its seats.
All six seats won by PAS have at least a 60 percent Malay constituency, including the seats of Lubuk Merbau (72 percent), Selinsing (71 percent), Changkat Jong (61 percent), Titi Serong (74 percent), Gunung Semanggol (80 percent) and Nizar’s Pasir Panjang (66 percent).
PKR also faces sizable risk because their seats are mixed-race constituencies, while most of the DAP seats are considered safe as they are located at Kinta Valley with non-Malay majorities.
Adding salt to Pakatan’s wounds is that hasn’t been much good news for the coalition in the last year, but plenty of bad news including internal bickering- and, most notably, Anwar Ibrahim’s sodomy case.
However, Perak PAS election director Asmuni Alwi remained confident about their chances. He analysed that those seats which the party lost marginally in the last general election were due to non-Malay voters, many of whom were still suspicious of the party.
He believes if the state held re-elections, PAS could gain more non-Malay votes, with the co-operation of Pakatan and the popularity of Nizar.
“The co-operation between the three parties was not so strong in last general election, but this time we are more confident of getting more non-Malay votes,” he said.
The seats which PAS lost marginally were Sungai Rapat (lost by 636, non-Malay percentage 38 percent), Pengkalan Baru (lost by 14, non-Malay percentage 36 percent), Kubu Gajah (lost by 66, non-Malay percentage 9 percent) and Selama (lost by 355, non- Malay percentage 17 percent).
Although Asmuni admitted that Umno still has strong support in Malay rural areas, he said PAS had expanded their grassroots after the last general election and the response has been good.
In the past, Perak PAS was strong in Kerian and semi-urban areas, while north Perak and rural areas were Umno’s strongholds.
PKR are expected to have tough fight in Kuala Kurau, Kuala Sepatang, Behrang and Teja.
Perak PKR vice president Chang Lih Kang (right) – who is also the Teja Assemblyman – believed that Chinese support is not an issue, but their main concern is their Malay support, which is relatively weak.
Besides, the Hutan Melintang seat – which won with a majority of 1721 votes – is also not comfortable, as it was part of Umno Vice President Zahid Hamidi’s Bagan Datoh parliamentary seat.
According to Chang, Zahid has aimed to wrest back the state seat and they have invested a lot of resources to woo the voters, including repairing roads.
Although DAP is relatively comfortable compared to PAS and PKR, the biggest Pakatan party in the state also has three worrisome marginal seats.
According to DAP Tebing Tinggi assemblyperson Ong Boon Piow, both Pokok Assam and Malim Nawar were held by MCA strongmen before the last general election.
Pokok Assam was previously won by former state exco Ho Cheng Weng while Malim Nawar was held by current Deputy Foreign Minister Lee Chee Leong.
For Kepayang, Ong said, “the state seat got a lot of postal votes from army and police, around 2000 to 3000.”
Meanwhile, the sole MCA seat which currently held by BN state exco Mah Hang Soon is considered safe, as according to Chang, the constituency has a lot of Orang Asli, who traditionally vote for BN.