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RUEHBY/AMEMBASSY CANBERRA PRIORITY 2918
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C O N F I D E N T I A L SECTION 01 OF 03 KUALA LUMPUR 000092 
 
SIPDIS 
 
FOR EAP/MTS AND INR 
 
E.O. 12958: DECL: 08/19/2019 
TAGS: PGOV PREL KJUS MY
SUBJECT: COURT DECISION ON STATE POWER PLAY ENDS LEGAL BATTLE, BUT SETS WORRISOME PRECEDENT 
 
REF: A. 09 KL 342 -- PANDEMONIUM IN PERAK STATE ASSEMBLY 
     ¶B. 09 KL 78 -- NAJIB LEADS TAKEOVER IN PERAK 
     ¶C. KL 20 -- WHAT IS GOING ON IN MALAYSIA? 
 
Classified By: Political Counselor Brian D. McFeeters for reasons 1.4 b 
 and d. 
 
Summary and Comment 
------------------- 
 
¶1. (SBU) Malaysia's Federal Court, the highest level in 
Malaysia's judicial system, announced on February 9 that the 
Sultan of Perak had the legal authority to appoint a new 
Chief Minister in his state, as he did in February 2009, 
after concluding that the ruling National Front (BN) 
coalition commanded the majority of seats in the Perak state 
assembly.  The case effectively ends the Perak constitutional 
crisis, which has been simmering since three opposition 
politicians declared themselves independents friendly toward 
BN, tipping the balance of seats in the state assembly toward 
BN (refs A and B).  The Sultan came under unprecedented 
scrutiny because replacing a Chief Minister is not 
specifically mentioned in the state constitution.  The 
opposition coalition People's Alliance (PR) announced that 
they would no longer contest the issue as they had vigorously 
done for the past year, and instead work alongside the BN for 
the benefit of the people of Perak, if certain conditions 
were met.  A recent independent poll confirmed that most 
Perakians believe that the only way to fairly resolve this 
crisis would be to hold snap elections in the state, which 
the BN has announced they will not do prematurely. 
 
¶2. (C) Comment:  This Federal Court decision in the BN's 
favor raises renewed questions about the independence of the 
Malaysian judiciary, already in question in connection with 
the Anwar Ibrahim trial and other cases (ref C).  While the 
GOM argues that the decision is based on a sound 
interpretation of the Perak constitution, opposition figures 
disagree and argue the decision legitimizes political 
maneuvering to change the results of democratic elections, 
setting a dangerous precedent by implying that the King could 
remove the Prime Minister, without a no-confidence motion in 
Parliament.  A well-financed political coalition could 
persuade members of Parliament to support the other side, 
shifting power through undemocratic means, as many allege 
occurred in Perak.  Before this Federal Court decision, the 
assembly would have instead been dissolved for fresh 
elections, but now the sultan can legitimize the takeover 
without voter input.  End Summary and Comment. 
 
The February 9 Decision 
----------------------- 
 
¶3. (U) The Federal Court ruled on February 9 in a unanimous 
5-0 vote that the Sultan of Perak, Azlan Shah, had the 
authority to appoint a new Chief Minister if he believed that 
a different political coalition commanded the allegiance of a 
majority of seats in the state assembly.  In announcing its 
decision, the Federal Court confirmed that the Sultan was 
correct in his February 6, 2009 decision to verify that 
veteran politician Zambry Abdul Kadir, a member of UMNO (the 
United Malays National Organization -- the dominant political 
party in the BN) had the support of a majority of the members 
of the state assembly, replacing Mohd Nizar Jamaluddin.  The 
switch in support came after three members of the People's 
Alliance simultaneously declared themselves to be 
independents friendly to the BN in early February 2009, a 
maneuver that is widely believed to have been driven by the 
BN.  Zambry's attorney Cecil Abraham went to great lengths to 
stress that "this decision is binding on the state government 
and the federal government." 
 
Predictions and Reactions 
------------------------- 
 
¶4. (C) Poloff and Pol Specialist visited Perak from February 
1-3 (to be reported septel) and discussed the (then upcoming) 
February 9 Federal Court decision with politicians and 
attorneys familiar with the case.  Nizar's lead lawyer Chan 
Kok Keong told Poloff ahead of the February 9 decision that 
he was certain the judges would rule in favor of Zambry.  He 
opined that it would not be a "constitutional decision" but 
rather "a political decision."  Chan pointed out that when he 
and his legal team were making their submission at the 
Federal Court, all five judges "were extremely hostile" to 
them.  Chan added that by ruling in Zambry's favor, the 
Federal Court "will be rewriting its own decisions and the 
constitution."  Former Chief Minister Nizar told Poloff that 
a ruling in favor of Zambry would result in "the Prime 
Minister or the Chief Minister holding office at the pleasure 
of the King or the Sultan."  Nizar added that this would set 
a "dangerous precedent."  DAP Vice President and Member of 
Parliament from Perak Kulasegaran also told Poloff ahead of 
the decision that the courts would favor Zambry because "the 
political stakes are too high for Prime Minister Najib." 
Poloff also spoke with Zambry's political secretary Abdul 
Rahman and the assembly speaker S. Ganeson; both expressed 
confidence that the court "will make the right decision" by 
ruling in favor of Zambry. 
 
¶5. (U) After the February 9 decision, BN Chief Minister 
Zambry was quoted in the media on saying he was thankful for 
the court's decision, adding that "hopefully all parties can 
accept this decision and this political crisis in Perak can 
finally be put to rest."  Prime Minister Najib appealed for 
everyone to respect the court's decision, commenting "We have 
to accept the decision of the country's highest court.  The 
issue and saga of who is the right Chief Minister of Perak 
has been decided, and I hope they (the opposition People's 
Alliance) accept this decision."    National opposition 
leader Anwar Ibrahim slammed the decision, claiming UMNO 
"does not have the courage to face the people" in elections. 
Democratic Action Party leader Lim Kit Siang called the 
verdict "legalization of BN's coup d'etat."  Former de facto 
law minister Zaid Ibrahim called the decision "warped legal 
reasoning" done for "political expediency." 
 
Nizar: Will Work with UMNO in Perak, but with Conditions 
--------------------------------------------- ----------- 
 
¶6. (SBU) Former Chief Minister Nizar convened a special 
meeting of state PR leaders on the day of the Federal Court's 
ruling, announcing that the opposition would give its full 
cooperation to the BN government in Perak.  He said, "for the 
good of Perakians, we have decided to become a strong 
opposition in the state assembly and lend our services to the 
Barisan National government in implementing policies that are 
good for the people."  Nizar, however, caveated that the 
opposition would only give its full cooperation if Zambry's 
government agreed to four conditions.  First, they must allow 
opposition parties to use public premises for the purpose of 
hosting functions; second, they must give memberships to 
opposition assemblymen to special committees; third, they 
must provide all opposition assemblymen with allocations of 
RM 150,000-RM 200,000 (approximately $40,000 to $55,000 USD) 
per year; and fourth, the BN must base its administration "on 
the principles of honesty, integrity, transparency, justice, 
and welfare."  Chief Minister Zambry responded on February 10 
by stating "we have never discriminated against them on the 
allocations, so no need for conditions.  We must help the 
public.  That's the yardstick."  (Note: The BN traditionally 
only grants "development funds" to constituencies held by BN 
representatives.  Just prior to the takeover last year, 
former Minister in the PM's department Ahmad Zahid 
Hamidi--who is now the Minister of Defense--announced that 
each BN assemblyman would receive RM 300,000, while the other 
constituencies would receive nothing.  End Note.) 
 
Poll: Decide Through an Election, not a Court Decision 
--------------------------------------------- --------- 
 
¶7. (U) The independent Merdeka Center announced results of a 
poll taken of Perak voters on February 5, in conjunction with 
the one year anniversary of the BN's takeover of the state. 
Among the key findings of the poll: 74% of the respondents 
feel that fresh state elections are the best way to resolve 
the political crisis in Perak; 65% of respondents believe the 
Perak political crisis remains a relevant issue after one 
year; and 60% place a higher priority on having a 
democratically elected government than on improving the 
economy. 
 
Looking Ahead 
------------- 
 
¶8. (SBU) Although it appears that both sides want to move 
ahead, there are still two pending legal cases that could, 
theoretically, result in a shift in power.  The first case 
involves a lawsuit by former state assembly Speaker 
Sivakumar, who was not initially removed from his position 
until after the first state assembly session under Zambry was 
conducted.  As speaker, Sivakumar held the power to suspend 
people for contempt; during the first meeting in April 2009, 
he suspended Zambry and six others for assuming their new 
positions before the initial court decision (Nizar v. Zambry) 
was complete.  Although it is unlikely the courts will find 
in favor of Sivakumar, if they do it is possible that his 
authority to suspend Zambry and six others will stand, 
thereby giving Nizar the majority of seats again.  The second 
case concerns the alleged resignations of the three state 
assemblymen who defected from the PR.  Just prior to the 
defections, Nizar claimed that the three had resigned from 
the state assembly, and held undated letters of resignation 
from each as proof.  The Election Commission, however, did 
not accept these letters as legitimate and refused to call 
for elections to replace the three.  The PR filed a lawsuit 
for the letters to be recognized as legitimate, currently 
under judicial review at the Federal Court.  All legal 
decisions on this lawsuit thus far have rejected the PR's 
assertions. 
KEITH