PUTRAJAYA, 21 May 2009: A chief minister or menteri besar (MB) cannot be removed even if the person fails a vote of no-confidence in the state legislative assembly, the Court of Appeal hearing the case to determine the rightful Perak MB was told today.
Lawyer Sulaiman Abdullah, who is representing Pakatan Rakyat (PR)’s embattled Perak MB Datuk Seri Mohammad Nizar Jamaluddin, said this was his conclusion from the 1966 Stephen Kalong Ningkan case, which resulted in the Sarawak constitution being amended through emergency legislation to allow the state governor to remove the chief minister.
In the Ningkan case, the court had ruled that the only way to determine whether a chief minister had lost the majority confidence of assemblypersons was by way of a vote in the Council Negri.
But Sulaiman told the appeals court judges today that because the judgment did not resolve Sarawak’s crisis since Ningkan refused to resign, the federal government had imposed emergency rule on the state so as to institute amendments that gave the governor powers to remove the chief minister. The amended provisions lapsed after six months.
Nizar speaking to a crowd of reporters after the appeals court postponed its judgment to the next day
Sulaiman said the fact that amendments were made through emergency legislature showed that the chief minister could not be constitutionally dismissed in the first place. That they had lapsed showed that there was no law existing to support dismissal of a chief minister or MB.
Sulaiman used this argument to support his submission as to why Perak ruler Sultan Azlan Shah could not ask Nizar to resign or deem the MB’s post vacant if he refused to. He noted that the provisions in the Sarawak and Perak constitution on this point were similar.
“The [Sarawak] state constitution confers no power on the governor to dismiss or by any means to enforce the resignation of a chief minister even when it has been demonstrated that he has lost the confidence of the majority.
“Since Ningkan did not resign, his office could not be deemed vacated. Therefore, there was emergency rule in order to amend the Sarawak constitution so as to remove the chief minister,” Sulaiman told the appeals court three-person bench.
Judges Abdul Raus Sharif, Datuk Zainun Ali and Ahmad Maarop were hearing the Barisan Nasional (BN)’s Perak MB Datuk Seri Dr Zambry Abdul Kadir’s appeal against the High Court’s judgment on 11 May that Nizar was the lawful Perak MB.
Nizar’s application to set aside the stay order granted to Zambry will be decided after the appeals court rules on Zambry’s appeal against the High Court’s ruling. The appeals court will deliver judgment at 3.30pm tomorrow.
The key issues of the case being heard by the Court of Appeal bench is the sultan’s power to dismiss Nizar and to deem his office vacant if he refused to resign, and whether Nizar had to go before the assembly for a no-confidence vote to determine if he had the majority support.
Zambry’s lawyers argued that High Court judge Datuk Abd Aziz Abd Rahim had erred in ruling that an assembly vote was the only way to determine if Nizar had lost the majority confidence.
Zambry’s team said there was nothing expressly stated in Article 16 (6) of the Perak constitution that a vote in the assembly was the only way to determine support for the MB.
Article 16 (6) states: “If the menteri besar ceases to command the confidence of the majority of the member 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.”
Zambry (File pic)Zambry’s lead counsel, Datuk Cecil Abraham, said that Article 16 (6) required Nizar to tender his resignation, as he was part of the executive council, and as he had fulfilled the criteria expressed in the provision, which is that he lost the majority confidence.
Case intervener Attorney-General Tan Sri Abdul Gani Patail submitted that a deadlock of 28 PR and 28 BN assemblypersons was the same as the absence of majority support.
“A deadlock means he [Nizar] has no majority at 28-28. It is a self-admission that he does not have the majority,” Abdul Gani said, adding that since the speaker was not allowed to vote, one could say that Nizar had already lost the majority confidence as the numbers would be at 27 for the PR and 28 for the BN.
Holding that a vote in the assembly was not the only way to determine majority support for the MB, Zambry’s team contended that the sultan was entitled to ascertain where the majority confidence lay by other means.
The sultan had taken these means by interviewing the three independents who left the PR to support the BN, by granting an audience to then Deputy Prime Minister Datuk Seri Najib Razak, and by meeting the 28 BN assemblypersons, all on 5 Feb before meeting Nizar a second time later the same day to reject his request for a dissolution.
Abraham said the sultan had to determine the circumstances at the time when Nizar had his first audience with him on 4 Feb and made his oral request for a dissolution.
Abraham said at the time when Nizar had his 4 Feb audience with the sultan, the three independents had already declared their support for the BN, even if Nizar did not acknowledge this.
“Nizar did not take into account evidence that the three assemblypersons had defected. He just ignored the fact that they defected,” Abraham said.
To dissolve or not dissolve?
Sulaiman agreed that the sultan had the prerogative to use any means to decide whether to withhold consent to a dissolution request.
“But it is an impermissible jump to say, ‘I find you to have lost the majority’. The sultan’s prerogative is solely to decide whether to dissolve or not to dissolve [the state assembly],” Sulaiman said.
Nizar on the steps of the Putrajaya court complex. Flanking him are (left) Kuala Sepetang assemblyperson
Tai Sing Ng, and Nizar’s wife Datin Seri Fatimah Taat
He contended that the sultan could not determine the majority confidence for the MB, as the correct avenue for that was a vote in the assembly. As such, Sulaiman deemed the number of assemblypersons on either side of the House as irrelevant to the case.
Both sides are also arguing on whether Nizar had correctly requested a dissolution using Article 36(2), which is a general provision for a request for dissolution. The article gives the sultan the power to summon the assembly, dissolve or prorogue it.
Nizar’s lawyers argue that he rightfully submitted his dissolution request based on this article as he had not lost the majority confidence, but only that there was a hung assembly.
Zambry’s lawyers, however, argue that Article 36(2) was the wrong basis to request dissolution and that Article 16(6) was the correct provision to make that request as they hold that Nizar had already lost the majority confidence.
Nizar’s lawyers also contend, as did the High Court in its ruling, that there is a lacuna in 16(6) which did not address the issue of the MB’s removal if he did not resign.
Sulaiman said that lacuna should not be filled by reading something into it “which is not there”, such as giving the sultan, or the governor citing the Sarawak case, power to remove the MB.
Abraham countered that 16(6) was “plain and clear” on the provision for the MB to resign or his office deemed vacant if he lost the majority confidence.
[Sulaiman said that lacuna should not be filled by reading something into it “which is not there”, such as giving the sultan, or the governor citing the Sarawak case, power to remove the MB]
But is there a provision for the Ruler to decline a name proposed by BN for the post Menteri Besar, as in the case of Perlis and Terengganu last year?
There is also no laws that says that the Sultan can make his decision with regards to “no confidence in the MB” in his palace. The proper and correct place to do is in the state assembly after a no confidence vote is taken. The reason is obvious, and that is to show transparency of action to all and sundry. Second, is to show that the Sultan is 100% neutral in his decision.
I heard the speech by Barrack Obama on the American Constitution and his intention to defend it with his life….it brought tears to my eyes ….
No. Not because I love the USA but because it brought to attention the lack of such leaders in our country who value the constitution as much as he does …. I have been noticing that since the time of Tun M the Malaysian constitution has taken quite a bit of knocking.
The democratic system of governance and the laws of the land came about to protect the interest of the people and not the rulers or leaders..
In Perak I think it is very clear where the interest of the people rests so I plead with many Perakians and to the rulers and the leaders…let us vote …let us decide … Bubar Dun.
Steve McCoy says
Agree with you that it is abundantly clear where the interests of the people lie… and it should be crystal clear to the sultan, regardless of personal feelings on whether PR can bring political stability to Perak (my speculation). Dissolving the assembly and triggering fresh elections is a reasonable expectation, I feel, of the ruling family.
However, do not share your views about the constitution. How we value the constitution depends on how valuable the constitution actually is.
Not all documents with the word ‘Constitution’ at the top of the page are created equal. All such documents are rooted in historical context. Those that stand the test of time, an essential indicator of value, are those that effectively embed eternal truths and principles which allow the document to ‘escape’ (ie, not be bogged down) by immediate and expedient political considerations of the day.
For me, the American Founding Fathers exhibited incredible wisdom and foresight in this regard (I recommend Jack Rakove’s book ‘Original Meanings: Politics and Ideals in the Making of the Constitution’ for insight into the process) which the Reid Commission, unfortunately, did not come close to matching.
I feel that the pace of change, both globally and within our country, will mean that our constitution will exponentially be less and less useful as a guiding document over the next 50 years or so, and a case can be made for a rethink. Constitutional revision should never be undertaken lightly or for vested interests, but should not not be considered simply because it is ‘the constitution’.
wAN mOHAMAD says
The decision at the Federal Court level is also predictable. On the first day when I heard about the High Court’s decision to reinstate the previous MB, I told myself it would be overturned by the Court of Appeal. And that’s what happened. Do not forget we have two systems running together: that of a parliamentary democracy and a monarchy. Tell me is there any judges who would dare to declare that a sultan has no power or that a ruler is only supposed to be there for administrative purposes. And whatever happened to the two frogs who jumped from PKR and the corruption charges they are facing? Has everything gone silent?
Ang Tan Loong says
The sultan can only appoint an MB to take over a caretaker MB,and he cannot appoint an MB to takeover an MB of the day who had been duly elected by the rakyat. This is what we meant by constitutional monarchy and not absolote monarchy.
We should be differentiate between appointments and elections. We can elect anyone irrespective of their credentials, whether is is an ex-con or an actor (the Philippines) but a public appointment should be at best endeavor be above reproach.
The Perak sultan after Marc 2008 did the commendable in appointing Nizar as the MB despite PAS not having the majority to replace the caretaker MB, but the sultan erred in appointing Zambry as the MB in place of the MB of the day.
Thanks Steve on your take on the constitution. It is well put ……