(Storm clouds © Akbar Nemati / sxc.hu)
THE political and legal storm in Perak over the disputed status of the Parti Keadilan Rakyat (PKR) assemblypersons for Behrang and Changkat Jering is not going to die down anytime soon. Though by-elections for the two state legislative assembly seats are off, the unfolding saga threatens to bring down the Pakatan Raykat-led state government.
At the heart of the matter is the validity of the undated resignation letters that Jamaluddin Mat Radzi (PKR-Behrang) and Mohd Osman Jailu (PKR-Changkat Jering) were made to sign along with other Perak Pakatan Rakyat representatives after the March 2008 general election.
Both reps denied resigning as assemblypersons and say they did not send those letters to the Perak Speaker V Sivakumar on 1 Feb. They also say they intend to challenge their resignations in court.
Jamaluddin (left) and Osman (Source: psuk-majlis.perak.gov.my)Jamaluddin and Mohd Osman had written to the Election Commission (EC), claiming that the resignation letter sent to Sivakumar was not authorised. This was the basis used by the EC when it decided on 3 Feb not to hold by-elections. Not surprisingly, the Perak government has announced that it will challenge the EC’s decision.
Associate and disassociate
Parallels have been drawn between the disputed resignations of the two PKR Perak reps and the Kelantan State Legislative Assembly vs Nordin Salleh case decided by the Supreme Court in 1992.
Most comparisons drawn with Nordin Salleh are quick to conclude that the letters can be challenged because of their effect of forcing elected representatives to vacate their seats in the state legislative assembly. This was found to have violated Article 10(1)(c) of the Federal Constitution, which guarantees the freedom of association.
The Supreme Court in 1992 had declared that this article also covered the right to disassociation.
However, upon closer inspection, one would find a subtle difference between the ongoing Perak drama and Nordin Salleh.
In the latter, the issue at stake was Kelantan’s enactment of an anti-hopping law, whereby any member of the state legislative assembly who resigns or is expelled from the political party he or she contested under is punished, so to speak, by having his or her seat vacated.
The plaintiffs in the case were elected to the state assembly on Semangat 46 tickets during the 1990 general election. They resigned from their party the following year, causing their seats to be vacated and by-elections held.
In the current Perak case, Jamaluddin and Osman’s pre-signed letters were with regards to their posts in the state assembly, and not their party. Does the question of freedom to associate or disassociate arise, if they had not quit PKR at the time the letters were sent?
(© Stephen Finn / Dreamstime)Cart before horse
The undated letters they pre-signed stipulated their resignation as elected state representatives, in the event that they changed parties. But it appeared that the PKR leadership had put the cart before the horse by assuming the two would defect based on their “disappearance” and what was taken for a confirmation by the Umno leadership.
Thus, the difference between the Kelantan case and Perak is that while both resulted in the “vacating” of state assembly seats, the causes are different. In Nordin Salleh, the cause was resignation from a political party, subject to the state anti-hopping enactment. In Perak, the cause was resignation from the state assembly.
In light of this difference, how successful will Jamaluddin and Osman be in challenging their resignations if they rely on the freedom of association argument?
They will have to prove that they signed those letters under duress, something constitutional lawyer Tommy Thomas considers difficult. He views the pre-signed letters as documents signed in escrow, which must be honoured.
Questions remain
PKR was clearly agitating for elections as its deputy president Dr Syed Husin Ali had said the party was not about to sit by and let the BN take control of the state through defections.
There appears to be a small stroke of genius in the way PKR has designed its pre-signed resignation letters for its elected representatives in the case of defections. It seems to have side-stepped the issue of resignations from the party and hence, the freedom of association argument. However, this remains untested in court.
Now that the EC has decided not to hold by-elections for Behrang and Changkat Jering, will Jamaluddin and Osman still challenge their resignations in court? Or will they merely end up buying time, before by-elections are held eventually? This will be for the court to decide.
Or will the Pakatan Raykat-led Perak government opt to seek dissolution of the state assembly and call for fresh state elections?
The defection cases in Perak present a legal
minefield (Mines sign © Sascha Burkard; gavel
© Cory Thoman / Dreamstime)If Jamaluddin and Osman make good on rumours and defect to the BN or become independents, continued chaos is ensured in Perak as the Pakatan Rakyat state government would be extremely unstable. Before the duo “resigned”, the Pakatan and BN had a 32:27 ratio in the state assembly. With two fewer reps in the picture, the possibility of more defections from the Pakatan camp looks likely, ultimately leading to the BN retaking Perak.
Chaos in Perak
Whether or not by-elections are called, voters are being held ransom by politicians who are thinking more of what they stand to gain than serving the people. It’s not just Jamaluddin and Osman; it’s PKR and the BN who are both fighting a high-stakes game to determine control of Perak.
Neither side should anger the public further by accusing the other of “starting it first” with regards to defections. To the public, who started it first is irrelevant as both sides are by now guilty of it.
At a time of looming recession, with 15,000 Malaysians having lost their jobs since January, surely politicians should be focusing on solutions for the country rather than be distracted by political games.
Politicians should quit the double-speak about ethics and weigh an anti-hopping law against the bigger picture of public order.
Article 10(2)(c) of the Federal Constitution does allow Parliament to impose laws to restrict the freedom of association “as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality”.
With politicians on both sides of the divide (Umno and the DAP) showing support for anti-hopping laws, perhaps it is time for them to demonstrate they mean business by debating it in Parliament. Otherwise, what’s happening in Perak now could be foreshadowing more such incidents to come. 
johnny says
Fully support a snap election. Let Perakians decide their destiny.
Andrew I says
In the US, it’s the Republicans v the Democrats. In the UK, it’s the Conservatives v Labour (though some might argue New Labour are Conservatives in sheep’s clothing).
Here, it’s basically a free for all, like international football fans who support a football club based on its performance.
Killer says
The strange thing is, all those people who speak so vocally about party-hopping were completely silent when the Bota assemblyman was “persuaded” to defect. There was no outcry when Anwar for months was trying to hijack the federal government via defections. In fact many people were supporting Anwar to do so. But now that Pakatan Rakyat is in the same boat, the very same people are singing a very different tune. Don’t blame BN here, they have done nothing (yet) and the Aduns are still Independent. It has been Pakatan’s own stupid games that led to their present problems.
Singam says
Any likelihood of an anti-hopping law was killed off when legislation was enacted preventing a resigning member of either State Assembly or Parliament from contesting again for five years.
If BN lawmakers are serious about bringing ethics into the business of elected representatives, they would, in a bi-partisan vote, revoke the law prohibiting the re-contesting and amend the constitution to allow for an anti-hopping law.
This way, if there is any dispute about representation, the contesting parties can bring the matter back to the people.
This is if the BN lawmakers are sincere about this.
Antares says
Let me S-P-E-L-L it out for those still arguing the legal/moral pros and cons of defections: Umno/BN can only operate with a two-thirds majority, being too arrogant, corrupt and unethical to accept their fate as Opposition in the five Pakatan-led states.
Nobody can manage a state while constantly being sabotaged. Since GE12, Umno/BN’s complete failure to adapt to a changing political scenario has become a deadly threat to the viability of Malaysia as a democracy. There is every possibility that Umno/BN hopes to push Najib Razak into power so that he can attempt to forcibly wrest control of the country, by muzzling and imprisoning critics and buying over the less courageous members of Pakatan Rakyat.
This is why it is IMPERATIVE that all right-thinking Malaysians focus all their energy on removing Umno/BN from power ASAP – before they steal EVERYTHING in the larder and flee to Zimbabwe.
Rakyat says
The fairest court of justice will be the rakyat themselves, not the Malaysian courts as we have seen. For PKR, now is the time to go back the Perakians and ask for their decision. Dissolve the assembly and let the people decide. It’s democracy so the people’s voice should be heard.
Andrew I says
That’s quite funny, Antares. After making a pile here, they’d most likely build another pile over there.
Hollywood might then consider making a film called “The Boys from Zimbabwe”.
Killer says
Antares
Let’s be rational and not go over the top with emotional comments.
To be fair, BN has allowed the five states held by Pakatan Rakyat to be ruled without major problems unlike Anwar who had been unashamedly using undemocratic suggestions (katakracy) to undermine and takeover the Federal govt.
I think the victory of Pakatan Rakyat in 12GE should be construed and celebrated as a step forward in our democratic process and let’s give due credit to BN (and especially to Badawi) to allow this to happen.
We hold Pakatan Rakyat to a higher standard and don’t expect them to employ undemocratic, underhanded and illegal tactics to seize or consolidate power.
krazl says
Seems like politicking and fighting is rife in this recession period. They afraid of retrenchment where their boss is the People.
Way to go politicking.
USJ resident says
Those who benefit from the frog hoppers will also be destroyed by the frog hoppers.