Its tweedle-dee, tweedle-dum again. Zambry is not or is? Nizar is or isn't. What has brought this sad state of affairs to Perak? It is politics. The problem we now have in Perak is essentially a political one. It is not an issue of legality. If we allow the courts to decide on what is essentially a political problem, we will continue to have this see-sawing.
What is at stake here is constitional democracy. Democracy as is commonly understood is rule of the people, by the people and for the people. It is a process of getting a government by way of free elections. We may not get the government that we particularly want, but the process of getting it is democratic. Hence a 'bad' government that is cavalierly dismissed by the catechetical 'we get the government we deserve' is useless analytically. What does it mean? It does not conform to a personal catalogue? Unless it's properly analysed, this often snide remark is just what it is- just an cynical oral expression.
Hence when elections are held involving multi parties, the elections are said to be democratic.
It is constitutional since these rights are secured by the rule of law. When we combine the term constitutional democracy, we mean the process of getting a government that has at its goals the qualities normally associated with democracy- free elections, guarantee of inalienable rights, the primacy of the rule of law and so forth.
So, when we asked what is at stake here, the answer is: what is at stake in the destruction of (a) democracy (b) constitutional safeguards to that democracy.
I asked a lawyer friend- what does a stay of execution mean. He says it means the judgement is not operative yet. Who is the MB I asked. Zambry- came the answer.
I am puzzled here. A stay of execution means, the judgment given is not operative yet. It does not strike out the judgement granted. My initial understanding was- a stay of execution means just that- the judgment is stayed, not overturned. This means the finding of the high court judge were still intact. They have not been overturned by the Court of Appeal.
Now, if the findings of the court at first instance are still whole, what are they? Among others, I would think that Nizar is the rightful MB and Zambry, the illegitimate. Nizar is ruled to have never ceased to be the MB right from the beginning. If like now, the court of Appeal has agreed to a stay of execution, it does not confer a right to install Zambry as MB. That would make Zambry's assumption of the MB's post illegal and in contempt of a court judgement.
If Zambry is allowed to retake the MBship, we have a curious application of the law- which is accepting an unlawful person as MB. The decision of the high court wasn't overturned- it was stayed. The findings up to this point, unless the Federal Court now overturns it, are among others, that Nizar is the lawful MB,
Yesterday, I have offered an opinion as to the manner by which a head of government is deemed to have lost majority support. It must be resolved on the floor of a dewan sitting. 'In sitting' should take its ordinary meaning. There is no other political way in determining a loss of majority support, except by way of a resolution from the floor. It is not decided any other way.
It is not as simple as a case of BN has the support of the 3 deserters and therefore it has the majority. The sultan met them and confirmed it. We are offered a storied version of HRH Sultan of Perak asking each and everyone who attended, do you support BN and the answer was affirmative.
It then boils down to the issue of determining how one is deemed to have lost majority support. It is a question of politics. And the political solution is to have the matter debated in a dewan sitting.
When a head of government is deemed to have lost the majority support which is also the same as having received a no confidence motion, he has two options; one- to offer resignation and two, seek dissolution of the state assembly.
These two actions were played out by two different actors.
- Nizar sought dissolution of the state assembly which means, he accepted if votes were called in the dewan sitting, assuming the 3 deserters supported BN, he would be voted out.
- On the other hand, BN believing that it has the support from the 3 ex PR ADUNs, sought to have Nizar replaced as MB and in his place, offered Zambry Kadir.
What distinguishes the two approaches? To me the paramount principle that distinguishes the two approaches is:-
One party seeks a change in government by way of the ballot box; the other seeks a change in government by way of political roulette.
As a democratic country, we need to ask how do we bring a change of government? The only answer I think is, it can only be brought about by democratic means, which is through the ballot box. As Tengku Razaleigh observed, any other means of changing the government is unconstitutional and undemocratic, and subverts the basis upon which we are a civilised society.
What happens when the only democratic and legitimate way of changing a government is subverted? Among other things we lose the people's trust, we lose the people's confidence in the Constitution, in democracy and in our constitutional monarchy. In particular, powers reserved for the Legislative Assembly, which represents the sovereign will of the people, cannot be taken away under any circumstances by anyone.
It is not a question of who started it first. I have addressed this issue sufficiently in my earlier articles. I have also given reasons why I think the desertion of the 3 ADUNs was more damnable than the out-in leap of Nasarudin of Bota.
The Kalong Ningkan case as well as the African case cited therein, reaffirm the political principle, that what is essentially a political problem, need to be solved politically. The question of losing majority support must be resolved on the floor of a dewan sitting. And further, the political impasse such as this can only be resolved by allowing the rakyat to judge for themselves. That process of getting a government must never be made subordinate to political sleight of hand. That would not only subvert the will of the people, but one that reduces our own political future into a game of political roulette.