Suggestion to ban Karpal from Perak unconstitutional?

ALOR SETAR: The Kedah Royal Household Association (PKDK) is proposing the Sultan of Perak, Sultan Azlan Shah, ban DAP national chairman Karpal Singh from entering the state. [The Star, 12/2/09]

DAP veteran leader Karpal Singh (image) announced his intention to take the Sultan of Perak to court for allegedly 'acting unconstitutionally' in the latest political coup by the Barisan Nasional coalition. The Pakatan Rakyat state government of Perak found themselves out in the cold when four assemblypersons defected to the BN, allowing the latter to form a new state administration under Datuk Dr Zambry Abdul Kadir as the succeeding Chief Minister.

To read a detailed chronology of events, click here.

Despite the disputed resignation letters filled by three of the four defectors, by which their seats could be considered if its validity could be verified, the Sultan of Perak did not only fail to dissolve the state assembly for a re-election but also asked then Chief Minister Datuk Seri Mohammad Nizar Jamaluddin to step down. His Majesty's actions were viewed by some as unconstitutional as Article 16(6) of the Perak Constitution states that:

If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.

In other words, the only way the Chief Minister can resign from his post is for a vote of no confidence by the Perak State Assembly or the assembly being dissolved by the monarch. There has neither been a call for a vote of no confidence against him nor has the assembly been officially declared dissolved. Nonetheless, the new BN state government went on to install a new Chief Minister despite the legal discrepancies.

The biggest critic of His Majesty Sultan Azlan Shah was Bukit Gelugor MP, Karpal Singh. The ever-fiery politician planned to take the monarch to court to settle the legitimacy of his actions over the appointment of the new Chief Minister and the establishment of a new state government. Many quarters have heavily condemned the politician with some even suggesting he'd be stripped of his citizenship for questioning the power of Malay rulers.

On February 11, Karpal decided to back down after a long discussion between party leaders to take the Sultan to court. Pakatan leaders unanimously agreed that the monarch should not be sued and Karpal said he would fall in line with the party's stand despite disagreeing with it.

However, that did not stop further criticism being hurled at the DAP national chairman. The latest of which was from The Kedah Royal Household Association (PKDK). The association is proposing to the Sultan of Perak to ban Karpal from entering the state. Its president Datuk Tengku Zainol Rashid Tengku Yahya suggested it was an appropriate form of punishment for one who had insulted the Perak Ruler.

“We propose that the Sultan of Perak ban Karpal from entering the state as we feel that his action is against the country’s Constitution. His action also (does no good) to his credibility as a senior lawyer and as an elected representative,” he said at a joint press conference with the Malay Unity Action Front (BBPM) here Thursday. [The Star, 12/2/09]

Now, the last time I checked, we live in the 21st Century where the monarchies of our country are bounded by the written law we call the constitution. A more superior law would be the Federal Constitution which takes precedence over the constitution of any state within the federation. Hence, for the PKDK to suggest or think the Sultan of Perak has the power to ban any citizen from entering the state is unconstitutional.

I may not be a lawyer (and correct me if I am wrong, lawyers) but from my quick study of our Federal Constitution, I found out that in Article 9, it states:

• (2) Subject to Clause (3) and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof.
  

• (3) So long as under this Constitution any other State is in a special position as compared with the States of Malaya, Parliament may by law impose restrictions, as between that State and other States, on the rights conferred by Clause (2) in respect of movement and residence.

There are two points which, I believe, the PKDK have overlooked. Article 9 (2) states that every citizen (and I believe Karpal is one!) has the right to move freely throughout the country. The Federal Constitution already provides the liberty to every citizen the freedom of movement within country. So, what gives PKDK the right to suggest who should be banned from entering which state.

Clause (2), however, mentions the restriction of such liberties to citizens who are deemed threats to national security . The PKDK may argue that Karpal is a 'threat' to public order for questioning the Sultan of Perak and rousing the anger of many. Even so, Clause (3) states quite clearly that such restrictions are under the jurisdiction of the Parliament. The issue here is that the PKDK has asked the Perak Ruler to ban Karpal from entering the state, implying that His Majesty has the power to do so.

We no longer live in feudalistic days where the monarchy was absolute. State governments are democratically elected and hence, the real power lies with the people.

In his 2004 book, Constitutional Monarchy, Rule of Law and Good Governance, the Sultan of Perak said:

"Under normal circumstances, it is taken for granted that the Yang diPertuan Agong would not withhold his consent to a request for the dissolution of Parliament. His role is purely formal."

And that extends to state Rulers as well, I presume? But then again, what do I know about law!