Perak constitutional crisis

what happened

Perak's 2009 crisis began with arithmetic. Pakatan Rakyat had taken 31 of 59 state seats in March 2008 and Mohammad Nizar Jamaluddin became Menteri Besar. On 4 February 2009 three assembly members — two from PKR and one from DAP — appeared in Putrajaya alongside the then Deputy Prime Minister and announced they would sit as independents supporting Barisan Nasional. That left the two blocs level at 28 seats each, with the three holding the balance.

Nizar's response was to ask Sultan Azlan Shah, that same day, to dissolve the Assembly and send the question back to voters. The following day the Ruler received the assembly members backing Barisan Nasional, declined the dissolution request, and took the position that the office of Menteri Besar should change hands. Nizar did not resign, and no confidence motion was ever voted on in the chamber. Harding records that later on 5 February the palace issued a press statement saying the office of Menteri Besar had fallen vacant and that Zambry had been appointed. Zambry Abdul Kadir was sworn in the next day, 6 February, at Istana Iskandariah, with Pakatan members absent and more than 3,000 demonstrators outside, dispersed by anti-riot police with tear gas; nine people were arrested.

The constitutional argument turned on Article 16(6) of the Perak Constitution, which says that a Menteri Besar who "ceases to command the confidence of the majority" must tender the Executive Council's resignation unless the Ruler dissolves the Assembly at his request. The question was how loss of confidence is proved. The High Court, on 11 May 2009, said it could only be proved by a vote on the floor, and declared Nizar the rightful Menteri Besar. Eleven days later the Court of Appeal reversed that, holding that the Ruler could establish the loss of a majority by other means. On 9 February 2010 a five-judge Federal Court agreed unanimously, finding nothing in the state constitution requiring a floor vote.

The reasoning that prevailed is worth setting out, because it is the law as it stands. The Federal Court treated Nizar's request as one made under Article 16(6) rather than Article 36(2), and read the word "shall" in that article as mandatory: once confidence was lost and dissolution refused, tendering the Executive Council's resignation was, in the court's phrase, "incumbent upon" him. Because he did not resign, the court held that he and the Executive Council were "deemed to have vacated their offices" — on this reading the office fell vacant by operation of the article itself, not by the Ruler dismissing anyone. As to how confidence is proved, the court held it "may be determined by means other than a vote of no-confidence in the legislative assembly", reasoning that the opposite rule would let a Menteri Besar who had lost his majority stay on simply by never permitting such a vote. Applying that to the facts, it found the loss established at the palace audience of 5 February, at which, on the reported figures, 31 of the 59 members backed Zambry.

Parallel fights ran through the Assembly itself. Speaker V. Sivakumar convened Pakatan members under a rain tree in an Ipoh car park in March 2009 after they were shut out of the building; the Federal Court in April held that his suspension of Zambry and six executive councillors was outside his powers; and on 7 May the sitting ended with his microphone switched off and R. Ganesan installed in the Speaker's chair.

One of those parallel fights was over the three seats themselves. Sivakumar had declared them vacant on the basis of undated resignation letters and notified the Election Commission; the Commission's chairman took the opposite view. On 9 April 2009 a five-judge Federal Court held unanimously that it is the Commission, not the Speaker, that establishes whether a casual vacancy exists, and the three kept their seats. The court settled who decides; it did not rule on whether the letters were valid.

What the episode meant is still argued by named jurists rather than settled. Shad Saleem Faruqi treats the refusal of dissolution as clearly within the Ruler's discretion under Article 18(2)(b), and describes the Sultan as having then allowed Barisan Nasional, "under debatable circumstances", to form the new government. Kevin YL Tan argues the Perak Constitution gives no explicit power of dismissal at all, reading the Reid Commission Report as intending chief ministers to answer to the assembly. Harding argues the Assembly rather than the Ruler must decide confidence, warning that any other view "opens the door to further constitutional crises arising out of behind-doors deals and manipulation" — though he also asks, against his own conclusion, whether a head of state must ultimately have some power to make an obdurate chief minister go. Retired judge N.H. Chan attacked the Federal Court for never confronting whether the Ruler had any power to dismiss, and reasoned from Article 16(7) that the Menteri Besar does not hold office at the Ruler's pleasure. The court's own answer was that no power of dismissal was needed, because Article 16(6) vacated the office once Nizar declined to resign, and that requiring a floor vote would let a chief minister who had lost his majority stay on by never calling one.

In April 2009 Nizar won the Bukit Gantang parliamentary by-election with a majority of 2,789, a contest Malaysiakini records Pakatan Rakyat as viewing "as a referendum on the coup"; that is Pakatan's reading of the result, not a finding about what voters collectively intended.; For readers today the lasting consequence is the one Faruqi identifies: the "Nizar precedent" is now cited whenever a chief minister or a Prime Minister loses a majority and a ruler must decide what happens next.