Crises of Confidence and Perak’s Constitutional Impasse

8/14/2019 Crises of Confidence and Peraks Constitutional Impasse

1/6

Crises of Confidence and Peraks Constitutional Impasse Andrew Harding

JUNE 8 In 1966 it was Sarawak, in 1985 it was Sabah, and in 2009 it is Perak.

But the issue in these times of crisis in state governments has been essentiallythe same: how are the so-called Westminster-type constitutional conventionsrelating to the appointment and tenure of chief ministers, and written into bothfederal and state constitutions in Malaysia, supposed to operate?

Crucially, in the present and intensely litigated impasse:

1. are matters arising outside the legislature relevant in assessing whether aMenteri Besar (MB) still commands the confidence of a majority in the StateLegislative Assembly; and

2. can the head of state appoint a new MB if he judges that the existing MB haslost that confidence and does not resign?

Abdul Aziz Abdul Rahim J in the High Court of Malaya sitting in Kuala Lumpur hasruled in Dato Seri Mohd Nizar Jamaluddin v Datuk Dr Zambry Abdul Kadir (11th May2009) that under Peraks Constitution a vote of no confidence must be passed in

the assembly before an MB is obliged to resign.

According to this decision Nizar remained MB of Perak. The High Courts decisionwas then overruled by the Court of Appeal on 22nd June in a decision in favour ofZambry.

However, the grounds for the Court of Appeals decision have not yet been releasedand the case is on appeal by Nizar to the Federal Court.

Article 16

The provisions which fell to be interpreted were as follows.

Article 16(2)(a), in the context of appointment of the Executive Council, states:His Royal Highness shall first of all appoint as Menteri Besar to preside overthe Executive Council a member of the Legislative Assembly who in his judgment islikely to command the confidence of a majority of members of the Assembly

Article 16(6) goes on to state: If the Menteri Besar ceases to command theconfidence of the majority of the members of the Legislative Assembly, then,unless at his request His Royal Highness dissolves the Legislative Assembly, thenhe shall tender the resignation of the Executive Council.

The facts

The complex facts giving rise to the case were these. Nizar was appointed MB ofPerak following the March 2008 elections as the Pakatan Rakyat coalitions choicefor this office.

In a 59-member assembly, Pakatan held 31 seats, while the BN held 28 seats.

In February 2009, three Pakatan members of the assembly (dubbed the 3 ADUN inthe litigation) announced their resignations from the assembly, leaving theassembly apparently deadlocked at 28-28.


2/6

Nizar approached His Royal Highness the Sultan of Perak as the Head of State(HRH) on 4th February 2009 for a dissolution of the assembly to resolve thedeadlock in the assembly.

On the 5th, HRH refused the request, but, previously to informing Nizar of hisdecision, he had met with 31 members of the assembly at the Istana and satisfiedhimself that these 31 members supported Zambry as the MB.

The 31 included the 3 ADUN, who had apparently meanwhile indicated that theirresignations from the assembly were withdrawn and they had transferred theirsupport to Zambry.

HRHs decision

Accordingly, HRH, immediately following his refusal of a request for dissolution,informed Nizar that he no longer commanded the confidence of a majority of themembers of the assembly and asked for his resignation as MB.

This was not forthcoming but, later the same day, the Office of HRH issued a pressstatement stating that the office of MB had fallen vacant and that Zambry had been

appointed MB as he commanded the confidence of a majority of members of theassembly.

No motion of no confidence

It is common ground that there had not been any motion of no confidence in Nizaras MB, nor had there been any event in the assembly to indicate loss of confidencein him, for example, defeat on an important bill; that at no point had or hasNizar resigned or been dismissed from the office of MB; and that Nizar has beenprevented from acting as MB, for example, by being evicted from his office.

Nizar asked the High Court on judicial review for orders having the effect of

declaring him to be legally the MB of Perak. Nizars claim was that only theassembly had the power to decide that it had no confidence in him, and that therewas no provision for the MB to be dismissed or for the office to fall vacant.

Zambry argued that the office of MB fell vacant when Nizar refused to resign andcircumstances arising outside the assembly were relevant to the issue ofconfidence.

The ruling of the High Court

The learned Judge in the High Court decided that:

i) the issue raised was justiciable;

ii) HRH exercises his discretion and may resort to any means to satisfy himselfand form his judgment as to who is likely to command the confidence of themajority of the assembly under Article 16(2)(a), but this is not true of Article16(6) where there is no judgment to be exercised by him;

iii) similarly, HRH exercises discretion in deciding whether to refuse a requestfor a dissolution of the assembly; but

iv) the MB does not hold office at the pleasure of HRH nor can he be dismissed by


3/6

him;

v) the office of MB cannot be deemed to be vacated under Article 16(6);

vi) the MB is responsible to the assembly collectively with the Executive Council;and

vii) a MB cannot be appointed if there is already a MB who has not resigned and no

vote of no confidence has been passed against him.

Accordingly he held that Nizar still held the office of MB, and relief was grantedin the terms of his application.

What is loss of confidence?

On the question of whether account can be taken under loss of confidenceprovisions (such as Peraks Article 16(6)) of matters arising outside thelegislature, the court was faced with apparently conflicting decisions inNingkans case (Sarawak, 1964) on the one hand, and on the other hand Amir Kahar(Sabah, 1995) and Adegbenro v Akintola (Western Nigeria, 1963).

The Judge made fairly short work of the case law on this point, regarding Article16(6) as plain, obvious and unambiguous.

The Constitution, he said, must be given a liberal interpretation and not beconstrued in a narrow or pedantic sense; nonetheless the court is not at libertyto stretch or pervert its language for the purpose of supplying omission orcorrecting supposed errors.

Amir Kahar, he said, was correct on its facts but did not raise the issue inquestion as the Chief Minister of Sabah in that case had in fact resigned and theonly issue was as to the effect of his resignation with regard to the rest of the

Cabinet; accordingly the courts views in that case on the issue of confidencewere merely obiter dicta (incidental).

Further, in Ningkan, the court had correctly distinguished the Privy Councilsdecision in Adegbenro, because both the facts and the applicable constitutionalprovisions were different.

He pointed out that the power in the Federal Constitution to remove the PrimeMinister from office for lack of confidence had been originally indicated but didnot finally appear in Article 43(3) of the Federal Constitution of 1957, whoseprovision in this respect is obliged by Schedule 8 to be replicated in all thestate constitutions (in Perak this is Article 16(6)).

Public interest

Clearly the issues at stake in this case are of huge importance, and it isreasonable for the public to be intensely interested in the outcome and also theprocess and the reasoning.

At the same it is critically important that the matter is assessed not from aparty political point of view, but as a matter of broader public interest.

From this point of view, the Judges decision clearly has much merit. As he


4/6

pointed out at the end his 78-page judgment the genius in our Constitution isthat we have chosen a system of government anchored on the principles andpractices of constitutional monarchy and parliamentary democracy whereby the Yangdi-Pertuan Agong and the Rulers constitutional roles are set out in theConstitution and the people are given freedom to elect a government of theirchoice in a free election and with the elected government being made answerable tothe elected legislature.

Undoubtedly so.

Nonetheless it can be legitimately asked whether the position is tenable that, ifthe MB does not resign when there is lack of confidence in him, the MB cannot bedismissed and his office does not fall vacant.

Surely, it can be argued, and indeed it was, that there must, finally, be a meansof making the MB go in this situation, otherwise the Constitution would becomeinoperable?

Is it not consistent with parliamentary democracy, and also with constitutionalmonarchy, that, ultimately, the head of state has the power to dismiss him? Ofcourse. However, such a right may only be exercised when the situation have become

totally untenable, e.g. after a vote of no confidence which the MB nevertheless isobdurate in not resigning.

No power to dismiss

Interestingly enough, it was not part of Zambrys case that HRH did have a powerto dismiss; rather it was argued merely that the office fell vacant when Nizarrefused to resign.

There are two other alternative views about Article 16(6).

One, as the Judge appears to hold, is that neither of these positions applies and

it is simply up to the MB, after a no confidence vote against him, to resign; inthe final analysis this presumably means that the remedy is purely politicalrather than legal.

Alternatively it could be argued that in a suitable case a suitable applicant (amember of the assembly or of the electorate?) could obtain a writ of mandamus fromthe court to compel the MB to resign.

But perhaps a better answer is that, important as this issue is, and much as itrequires a definitive decision, it did not actually arise on the facts becausethere was simply no obligation on Nizar to resign in the absence of a no-confidence vote in the assembly.

The issues in this case

Let us then revisit the facts.

It is not made clear in the judgment but is clearly relevant, that at his audiencewith HRH on 4th February 2009, Nizar believed that the 3 ADUN had merely resignedtheir seats. In fact, the three seats had been declared vacant by the Speaker whohad notified the Election Commission accordingly.

It does not appear that HRH informed Nizar that this was not the case that, in


5/6

fact, the 3 ADUN had withdrawn their resignations and transferred their support toZambry.

According to Nizars understanding at the time HRH asked for his resignation, itwas likely (but by no means certain) that he would have difficulty in maintaininga majority in the assembly; and equally likely too that Zambry would have the samedifficulty.

Given this understanding (albeit a false one as it turned out), it seems clearthat Nizar was justified in asking for a dissolution, because only by a motion ofconfidence or by an election could the situation be resolved.

Nizar had asked for a summoning of the assembly, but there had been no responsefrom HRH; and his request for a dissolution was denied.

It is of course usual in Westminster-type constitutions to judge a chiefministers own assessment of his political viability by his willingness to test iton the floor of the legislature. There is indeed no reason to suppose that heshould not have the right to do so.

There was in this case no obstacle, such as a threat of violence, to prevent the

assembly meeting.

Clearly in a confused political environment the only definitive opinion is that ofthe assembly. Members have the right to express their views, consider whether theyare persuaded by anything they hear in the debate which would follow a motion ofno confidence, and finally to cast their vote on the motion.

Anything else is surely a denial of democratic process. When politicians are aptto change their minds at will, how do we know which way they will vote in advance,whatever they state their position to be?

Legislature, and not ruler, who decides loss of confidence

Accordingly the issue seems to become, who was empowered to make the judgment asto whether the MB still had the confidence of a majority? The Judge gave a correctanswer to this question by saying it is the legislature, not the head of state.

That the conditions in Article 16(6) are stated as facts rather than judgmentspowerfully indicates an interpretation that no judgment is involved, and that theMB ceasing to command the confidence of a majority is simply a matter for theassemblys decision. Following the assemblys decision the matter should of coursebe beyond doubt, but if lack of confidence was expressed in some other manner, forexample by the failure of a money bill or other important measure, it would thenbe for the MB to consider his position on the basis of events in the assembly.

In short, he must know he has lost the confidence of the majority before he isobliged to resign.

Thus even on the view that the issue of confidence arises without the assemblyexpressing its view, there must be some latitude to the MB to assess his position.

And surely this is all the more true if he is not even in possession of all thefacts? Must he not have an opportunity to check the facts and consult with hiscolleagues to ascertain whether he has or has not lost the confidence of themajority?


6/6

But, as the Judge also said, it is in any event clear that the head of state isnot given the power under Article 16(6), as he is under Article 16(2)(a), to makea judgment as to matters of confidence.

Public policy

We can conclude that public policy requires that the courts view these

constitutional conventions in such a way as to implement the democraticprinciple by letting the peoples representatives decide transparently and after adebate.

Any other view not only renders the legislature otiose, but also opens the door tofurther constitutional crises arising out of behind-doors deals and manipulationwhich could even engulf the federal government at some juncture as well as makinga political football of Malaysias ancient monarchies.

Hopefully the Federal Court will consider these issues seriously. loyarburok.com

* Professor Dr. Andrew Harding, after the demise of the late Professor RH Hickling

CMG QC, would (with Professor Dr HP Lee) arguably share the honour of being theforemost jurists on the Malaysian Constitution. Among others, he is the author ofPublic Duties and Public Law (OUP, 1989), Law, Government and the Constitution inMalaysia (MLJ, 1996) and Comparative Law in the 21st Century (Kluwer, 2002), andco-editor of Preventive Detention and Security Law: a Comparative Survey (Nijhoff,1993) and Constitutional Landmarks in Malaysia: The First 50 Years 1957-2007(LexisNexis, 2007). Formerly he was Professor of Law, Head of Department of Lawand Chair of the Centre of South East Asia Studies at SOAS, University of London.He is now based in the University of Victoria, Canada.

* The Malaysian Insider - Monday June 08 2009URL: http://www.themalaysianinsider.com/index.php/opinion/breaking-views/28849-crises-of-confidence-and-peraks-constitutional-impasse--andrew-harding

Documents

Crises of Confidence and Perak’s Constitutional Impasse