Sunday, February 08, 2009

'Hopping is legal and constitutional' - Prof Abdul Aziz Bari in Malaysiakini

Constitutional expert professor Abdul Aziz Bari said that Karpal's grouse against Anwar over the latter's policy on party hopping was weak and flawed.
"Hopping is legal and constitutional," he told Malaysiakini.
He said that switching sides may even be approved by the voters.
"In any case come election they will decide whether it is moral or otherwise," he added.

And on the test of morality attached to these defections, Abdul Aziz said: "Simple. Don't bribe, kidnap or intimidate members of parliaments or state assemblyperson. Let them decide on their own freewill."

He also said that a law to stop the hopping, as espoused by Karpal, was unconstitutional as it would breach someone's right to association.

"There is even a case to stress this point - the Supreme Court ruling in 1993 in the Nordin Salleh case," he said.
Abdul Aziz was referring to Karpal's outburst earlier today, blaming Anwar for the disarray Pakatan was in at the moment, especially in Perak.
The DAP politician also urged Anwar to step down as the chief of Pakatan, stating that Anwar had created enough trouble for Pakatan with his open calls of enticing defectors from Barisan Nasional to form the federal government.

Last week, defections from Pakatan resulted in the collapse of the Perak government, with BN taking over, with the support of the Sultan of Perak.

Although the state was led by a PAS leader, DAP was seen as the biggest loser in the collapse as the party had dominated the state assembly with its members.
Karpal told reporters today that Karpal said that party-hopping can never be justified.

Sultan's reserve power
On another matter, Abdul Aziz also said that it was time for people to stop criticising Sultan Azlan Shah for asking Mohd Nizar Jamaluddin to step down and then hand over the powers to BN's Zambry Abd Kadir.

At the same time Mohd Nizar has refused to resign, stating that he will do so once a vote-of-confidence is taken at the state assembly, or with the dissolution of the assembly.

This situation has resulted in Perak having two menteris besar at work.

And the sultan has been widely blamed for causing this situation, over his refusal to dissolve the assembly so that the people can decide on who the want to lead them through polls.

"I think we got to be fair to the sultan and suggest ways to solve the problem," said Abdul Aziz.

He added that it appeared as though the BN has realised the critical state the matter has come to now and perhaps not knowing how to solve the situation."

Zambry seems to have realised the difficult position he is in. BN have stopped the 'uncivilised' approach taken by the state secretary and Ipoh police chief early Friday morning. Now the new MB says Nizar can take time to vacate the official residence," he said.

He however added that neither the federal constitution nor the state constitution provided any remedy for the prevailing situation.

However he said that in constitutional law theory there was a view which allowed the head of state to take drastic measures to handle such a situation.
"This includes what is known as reserve powers. And apart from this power, I believe the sultan can act on the state authority vested in his office.

And he suggested that the two things the sultan could do now to solve the impasse are:
  • To revoke the appointment of Zambry and restate Nizar (though this may not be necessary as revocation is enough to allow Nizar to continue), or
  • To use the reserve powers to dissolve the assembly so that a state election could be held. He added that in the meantime, the Nizar government could be retained as caretaker government.
Alternatively, the state secretary can be asked to undertake the routine administration of the state.
The sultan can do either of these to empower and enhance democracy.

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