A constitutional crisis in the making? For the people of Selangor, I hope not.
Where it was the Barisan Nasional (BN) in Nizar’s case on the Perak Constitution, the numerically weakest party PKR is now embarking on a venture to test the limits of the Laws of the Constitution of Selangor, or better known as the Selangor Constitution. Unlike Nizar’s case, the ‘threat’ to the current MB Khalid – so to speak – is not from the outside of Pakatan Rakyat (PR) but from within PKR. Like in Nizar however, it does not appear that an overwhelming majority of reasonable, right-thinking voters wish to see the current MB replaced by another.
One failing of our electoral system is that Malaysians are not able to directly elect our PM or MB. The choice of our Prime Minister is with our MPs while the choice of our MB is with our ADUNs. I think this must change given the pranks MPs and ADUNs play on us, the latest being Lee Chin Cheh who has resigned for no apparent good reason. The respective Federal and State constitutions should be reformed to allow for direct elections.
Back to the issue at hand, would there be a constitutional crisis in Selangor if Khalid decides to stay on? Perhaps … this is the wrong question.
The right question should be would there be a crisis even if Khalid decides to go? You decide after reading this and adding your spice in the ‘Comment’ section below this post.
1. Khalid resigns as the MB. He must also tender the resignation of his EXCO. He gives no reasons for his resignation. He provides no advice to HRH on what is to be done next. HRH may appoint another MB who commands the confidence of the majority of ADUNs in the Assembly or HRH may dissolve the Assembly for fresh elections. Given the intra-party factionalism in PKR, it would be unlikely HRH appoints the MB from PKR. Anyway, PKR is in the minority in PR.
2. Khalid has lost the majority at the Assembly – evidenced by a floor vote or if an important State bill is defeated. This would happen only if DAP and/or PAS ADUNs revolt, with PKR. PKR on its own does not have the numbers. BN may also enter the fray. Khalid advises HRH to dissolve the Assembly for fresh elections. To stay above partisan politics, it is anticipated HRH would consent to the request. If HRH withholds consent, Khalid and his EXCO must resign for HRH to appoint another MB. Again, a candidate from PKR would not likely feature.
In the permutations above (and there are a few more), one must not rule out BN’s manoeuvring to steal the State from the people and PR without needing a new Statewide election. This was cunningly done in Perak to oust Nizar. Currently, not only are Selangorians angry, HRH’s patience is no doubt being tested and this does not portend a good outcome for the future of PR.
In this adventure, I suggest that if the conflict comes to a head, the best option in the circumstances would be to dissolve the Assembly and let the voters punish PKR.
I would only conclude to say that Khalid is – unlike Nizar in Perak then – in a strong position to hold out if he wishes to. It is only for PR to lose the State.
There are however two further options Khalid could take now before the Kajang by-election to strengthen his hand. Would you care to guess what these options are?
Nice!
Postscript:
Some have questioned the validity of the proposition that HRH may, in his absolute discretion, dissolve the Assembly without being advised so to do by the MB.
The issue has been settled by the Federal Court in Dato' Seri Ir Hj Mohammad Nizar Jamaluddin v Dato' Seri Dr Zambry Abdul Kadir; Attorney General (Intervener) [2010] 2 CLJ 925 at paragraph [34]:
[34] In this regard we would, however, add that the power to dissolve the LA is vested in HRH by art. XXXVI(2) no matter in what circumstances it was made. This is clear from our reading of the said article which provides:
(2) His Royal Highness may prorogue or dissolve the Legislative Assembly.
This is the only provision touching on the dissolution of the LA. Article XVI(6), in our view, does not provide for the dissolution of the LA as such, but merely provides that the MB may in the circumstances stated in art. XVI(6) request HRH for the dissolution of the LA. It does not confer the power on HRH to dissolve the LA. So in the event HRH accedes to the request for the dissolution of the LA it has to be done under XXXVI(2) not under art. XVI(6). As we see it art. XXXVI(2) is a general power to dissolve the LA, but the circumstances under which the LA may be dissolved are varied, and one such circumstance is when there is a request by the MB to do so under art. XVI(6) and HRH agrees to such a request. Other instances that we can think of, is where the Government of the day may request for the dissolution of the LA prior to expiry of the five year term in order to get a fresh mandate from the electorate. It is important to note that in all cases, the decision whether or not to dissolve the LA is in the absolute discretion of HRH. HRH does not act on advice of the Executive Council in the matter of dissolution of the LA. This is clearly stated in art. XVIII(2)(6).
Whether this interpretation by the Federal Court is desirable or morally defensible in a democracy is a different question, and one usually within the remit of academia.
Edmund Bon Tai Soon