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Cablegate: Court Decision On State Power Play Ends Legal Battle, but Sets Worrisome Precedent

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OO RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHKL #0092/01 0430353
ZNY CCCCC ZZH
O 120353Z FEB 10
FM AMEMBASSY KUALA LUMPUR
TO RUEHC/SECSTATE WASHDC IMMEDIATE 3774
INFO RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY
RUEHBY/AMEMBASSY CANBERRA PRIORITY 2918
RUEHLO/AMEMBASSY LONDON PRIORITY 0707
RHHMUNA/CDR USPACOM HONOLULU HI PRIORITY
RHEHNSC/NSC WASHDC PRIORITY
RUEKJCS/SECDEF WASHDC PRIORITY

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

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