Thursday, February 12, 2009

Perak Crisis - Legally speaking

The Constitution Trumps Politics

Written by:Nurhalida Dato' Seri Mohammed Khalil
Senior LecturerFaculty of Law, University of Malaya

I refer to the ongoing discussion on the role of the State Ruler when there is a request for the dissolution of the State Legislative Assembly and in the case of appointment and dismissal of a Menteri Besar, pursuant to the recent political developments in Perak.

In the recent case of the State of Perak, it may be persuasively argued that the exercise of the powers of the Sultan of Perak concerning the withholding of consent to a request for the dissolution of the State Legislative Assembly and the appointment as well as the dismissal of the Menteri Besar, is not only within the four walls of the law but also the practice of the same.

At the outset, as a constitutional monarch, the State Ruler's powers and functions are defined and limited by the Federal Constitution of Malaysia and the relevant State Constitution.

Section 1(1) and (2), Part I, Eighth Schedule of the Federal Constitution of Malaysia provides:

(1) In the exercise of his functions under the Constitution of this State or any law or as a member of the Conference of Rulers the Rulers shall act in accordance with the advice of the Executive Council or of a member thereof acting under the general authority of the Council, except as otherwise provided by the Federal Constitution or the State Constitution; but shall be entitled, at his request, to any information concerning the Government of the State which is available to the Executive Council.

(2) The Ruler may act in his discretion in the performance of the following functions (in addition to those in the performance of which he may act in his discretion under the Federal Constitution) that is to say –

(a) the appointment of a Menteri Besar
(b) the withholding of consent to a request for the dissolution of the Legislative Assembly, (emphasis added)

Clearly, the power to dissolve the State Legislative Assembly is in the hands of the State Ruler and not the Menteri Besar, in which case, the announcement of the immediate dissolution of the State Legislative Assembly made by the then Menteri Besar of Perak, Datuk Seri Mohammad Nizar Jamaluddin, on Wednesday, 4 February, 2009, at 3 pm, prior to making a request to the Sultan of Perak for the dissolution of the State Legislative Assembly, on the same day, at 5 pm, was repugnant to section 1(2)(b), Part I, Eighth Schedule of the Federal Constitution of Malaysia.

An issue arises as to whether the State Ruler can order dissolution of the State Legislative Assembly on his own initiative.

The State Ruler would not dissolve the State Legislative Assembly without the request of the Menteri Besar.

Article XVIII (2)(b) of the Perak State Constitution, which is similar to section 1(2)(b), Part I, Eighth Schedule of the Federal Constitution of Malaysia, as cited above, provides that the State Ruler may act in this discretion in the performance of his function relating to the withholding of consent to a request for the dissolution of Legislative Assembly

Thus, it is clear that the State Ruler cannot order dissolution of the State Legislative Assembly on his own initiative.

To reiterate, the matter of withholding of consent to a request for the dissolution of Parliament is a matter within the discretion of the State Ruler.

However, a related issue is whether the State Ruler is automatically bound to dissolve the State Legislative Assembly as soon as the Menteri Besar requests him to do so.

Section 1(2)(b), as cited above, envisages 2 situations in which such a request will be made:

1) prior to elections
2) a vote of no confidence has been passed against the Menteri Besar

In relation to the second situation, in theory, when the Menteri Besar loses the confidence of the State Legislative Assembly, the Menteri Besar has two choices:

1) the Menteri Besar can ask for dissolution of the State Legislative Assembly or
2) the Menteri Besar shall tender the resignation of the Executive Council

This is in accordance with section 2(6), Part I, Eighth Schedule of the Federal Constitution of Malaysia which provides:

(6) If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request the Ruler dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.

Similarly, Artikel XVI(6) of the Perak State Constitution provides:

If the Mentri Besar ceases to command the confidence of the majority 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.

A question arises as to whether the power of the State Ruler with regard to the second situation is purely discretionary.

At the federal level, the nature of the power of the Yang DiPertuan Agong (YDPA) to withhold consent to a request made by the Prime Minister to dissolve Parliament, based on the combined reading of Article 40(2)(b) and Article 43(4) of the Federal Constitution, is similar to the nature of the power of the State Ruler as embodied in section 1(2)(b) and section 2(6), Part I, Eighth Schedule of the Federal Constitution of Malaysia.

In this respect, a constitutional expert observed that a literal interpretation of Article 40(2)(b) of the Federal Constitution of Malaysia would mean that the YDPA may refuse and invite some other member of the House of Representatives (Dewan Rakyat) likely to command the confidence of the majority. However, as opined by the same constitutional law expert, on a deeper reflection, the YDPA may not use his discretion on the basis that the YDPA is supposed to play a neutral-non political role. Otherwise the YDPA gets involved in partisan politics.

In relation to the same matter, in practice, in Malaysia, no Prime Minister has ceased to command the confidence of the majority in the House of Representatives (Dewan Rakyat)
However, according to the same constitutional law expert, it is generally accepted in the United Kingdom, albeit with some disagreement, that the Queen has 'reserve power' to refuse an improper request for dissolution. This prerogative is regarded as dormant but not dead. The situations in which the Queen could refuse a request for dissolution of Parliament are:

1) If the Queen believes a stable alternative government can be formed without going to the polls
2) If a Prime Minister, having lost his party's leadership, sought to improve his chances for a comeback by requesting dissolution.

At the state level, in the recent case of the State of Perak, on Thursday, 5 February 2009, the Sultan of Perak interviewed all 31 members of the State Legislative Assembly, including the four assemblymen at the centre of the political development in Perak, to ensure that they fully support Barisan Nasional and will be able to form a stable state government.

Accordingly, on the same day, the Sultan of Perak decided not to dissolve the State Legislative Assembly and ordered the then Menteri Besar of Perak, Datuk Seri Mohammad Nizar Jamaluddin to resign from his post as Perak Menteri Besar together with the members of the State Executive Council with immediate effect.

However, the former Menteri Besar of Perak, Datuk Seri Mohammad Nizar Jamaluddin, up until now, has refused to resign on the conviction that he still legally holds the post under the Perak State Constitution. Instead he pleaded with the Sultan of Perak for the dissolution of the State Legislative Assembly, despite the Sultan of Perak's earlier refusal to the former's earlier request to dissolve the Assembly.

In this respect, two pertinent questions may be raised:

Firstly, whether the second request made by the then Menteri Besar of Perak, Datuk Seri Mohammad Nizar Jamaluddin for the Sultan of Perak to dissolve the State Legislative Assembly despite an earlier refusal on the part of the State Ruler, is sanctioned by any provisions of the Federal Constitution of Malaysia or the relevant State Constitution,

Secondly, in the event that the Menteri Besar ceases to have confidence in the State Legislative Assembly and at the same the Menteri Besar fails to secure the State Ruler's consent to dissolve the State Legislative Assembly and yet refuses to tender his resignation, whether the State Ruler is constitutionally justified in dismissing the Menteri Besar.

Section 2(6), Part I, Eighth Schedule of the Federal Constitution of Malaysia, cited above, implies that only the State Legislative Assembly can dismiss a Menteri Besar in a vote of no-confidence.
Furthermore, section 2(7), Part I, Eighth Schedule of the Federal Constitution of Malaysia provides:

(7) Subject to subsection (6), a member of the Executive Council other than the Menteri Besar shall hold office at the Ruler's pleasure, but any member of the Council may at any time resign his office.

Section 2(7), Part I, Eighth Schedule of the Federal Constitution of Malaysia explicitly states that members of the Executive Council other than the Menteri Besar shall hold office during the pleasure of the State Ruler.

Based on a literal interpretation of the above provisions, it appears that the State Ruler can dismiss any members of the Executive Council but not the Menteri Besar.

In practice, at the state level, in Malaysia, the case of Stephen Kalong Ningkan, supports the view that the Menteri Besars or the Chief Ministers cannot be dismissed except by their respective State Assemblies.

However, in the same case, the High Court did envisage the possibility of the dismissal of the Chief Minister by the Yang DiPertua Negeri when he is defeated on the floor of the House and he neither resigns nor requests the dissolution of the House.

At the federal level, the relevant articles are Article 43(4) and 43(5) of the Federal Constitution.
Article 43(4) implies that only the House of Representatives (Dewan Rakyat) can dismiss a Prime Minister in a vote of no-confidence.

Article 43(5) explicitly states that Ministers other than the Prime Minister shall hold office during the pleasure of the YDPA.

Thus, based on a literal interpretation of the above provisions, it appears that the YDPA can dismiss any Ministers but not the Prime Minister.

However, in this respect, a constitutional law expert has opined that there is one situation that the YDPA will be constitutionally justified in dismissing the Prime Minister, that is, if the Prime Minister ceases to command the confidence of the House of Representatives (Dewan Rakyat) and also fails to secure the YDPA's consent to a dissolution of Parliament and yet refuses to tender his resignation.

On this point, the same constitutional law expert has cited that in the United Kingdom, scholars do accept the preposition that the Queen's power to dismiss the government may be dormant but not dead. The Queen may exercise her reserve powers to dismiss the government if it is purporting to subvert the democratic basis of the constitution.

Related to the above prepositions, is the following question: Should the lack of majority support for the Menteri Besar be always judged on the floor of the State Legislative Assembly or on the basis of what happens outside the State Legislative Assembly?

In the case of Stephen Kalong Ningkan, the court, in declining to follow the decision of the Privy Council in the Nigeran case of Adegbenro vs. Akintola, held that want of confidence must be expressed on the floor and not outside it.

However, in the subsequent Sabah case of Datuk Amir Kahar Mustapha vs. Tun Mohd Said Keruak, which concerns a petition signed by a majority of the members of the State Legislative Assembly stating that they had lost confidence in the Chief Minister Of Sabah, it was held that a vote in the Assembly is not the only means to determine the confidence of the members of the Assembly in the Chief Minister but depends on the circumstances. Other extraneous matters may provide sufficient evidence to establish the fact of the Chief Minister ceasing to command the confidence of the majority of the members of the Assembly for the purposes of the Constitution of Sabah.

In the course of its judgment, the court in Datuk Amir Kahar Mustapha vs. Tun Mohd Said Keruak, distinguished the Sarawakian case of Stephen Kalong Ningkan from the Nigerian case of Adegbenro vs. Akintola, and concluded in the following words:

In the circumstances, Stephen Kalong Ningkan's case must be distinguished, being a decision based on its own facts and circumstances. The hard fact in that case (Ningkan) was that the alleged loss of confidence was highly suspect. There was a top secret representation made by persons outside the Council Negri which on the fact of it did not disclose that the representors were the majority of members in the Council Negri. Also, the fact represented was suspicious in the sense that the letter was not signed by all persons listed in the letter and even in respect of those who signed, one of them was represented only by a `chop' It was that reason the learned judge (Justice Harley) said at page 193 `Men who put their names to a `top secret' letter may well hesitate to vote publicly in support of their private views ...

Whereas in the present case, the issue does not arise. The chief minister resigned on his own accord and the reason for the resignation was sufficiently given in his press statement and in the `explanation' given in the Borneo Mail on 11 May 1994 giving his interpretation of the matter.

In theory, in the case of appointing the Menteri Besar, the State Ruler enjoys a discretion as underlined in section 1(2)(a), Part I, Eighth Schedule of the Federal Constitution of Malaysia:

(2) The Ruler may act in his discretion in the performance of the following functions (in addition to those in the performance of which he may act in his discretion under the Federal Constitution) that is to say –

(a) the appointment of a Menteri Besar

Nevertheless, section 2(2)(a), Part I, Eighth Schedule of the Federal Constitution of Malaysia provides:

(2) The Executive Council shall be appointed as follows, that is to say:

(a) the Ruler shall first appoint as Menteri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the Assembly;…

Thus, the choice of the State Ruler to appoint a Menteri Besar is specifically limited to members of the State Legislative Assembly. Moreover, such a person is to be appointed as the Menteri Besar, who in the State Ruler's judgement, is likely to command the confidence of the majority of the members of the State Legislative Assembly.

Furthermore, in practice, during normal circumstances, the State Ruler does not appear to have much of flexibility.

During normal circumstances, for example, when there are two political parties and one of them has a clear-cut majority of the State Legislative Assembly, the State Ruler has no total discretion in the matter and the State Ruler appoints the leader of the majority party as the Menteri Besar.
In the event that the State Legislative Assembly becomes divided, for example, into three or more parties and the parties are well balanced with no party having a clear-cut majority, it would appear that the State Ruler therefore may exercise discretion in such a matter, that is the State Ruler will have to appoint one of the claimants, as the Menteri Besar despite the fact that the claimant does not have majority support at the time of appointment.

In this respect, will the State Ruler be acting inconsistent with section 2(2)(a), Part I, Eighth Schedule of the Federal Constitution of Malaysia, as previously cited?

Such was the issue raised by the former Menteri Besar of Perak, Datuk Seri Mohammad Nizar Jamaluddin when he submitted the following prepositions:

Firstly, that both the political parties of Pakatan Rakyat and Barisan Nasional have the same number of assemblymen at 28, and that three former Pakatan Rakyat's assemblymen were no longer members of the State Legislative Assembly,

Secondly, that the Speaker of the State Legislative Assembly had filed an application to the High Court for a declaration that the trio were no longer assemblymen,

Thirdly, that the Barisan Nasional's claim to have the majority is questionable,
Fourthly, that the Sultan of Perak is requested to await the outcome of the application before deciding to establish a new government in Perak, and

Lastly, that the best solution to the issue in Perak is to dissolve the State Legislative Assembly in order to allow the people of Perak to choose a new government.

At the federal level, addressing the issue of the power of the YDPA to appoint the Prime Minister, in the case of a Hung Parliament, a constitutional law expert has opined that the YDPA can take recourse to the phrase `likely to command the confidence of the majority' as embodied in Article 43(2)(a) of the Federal Constitution of Malaysia. In these circumstances, the YDPA may appoint a person who in his subjective satisfaction may obtain majority support in the course of time, even if that person may not have such a support at the time of appointment.

Therefore, in a hung Parliament, the YDPA's preference may cause a bandwagon effect in favour of the preferred candidate.

At the state level, in the recent case of Perak, prior to the appointment of Barisan Nasional's Datuk Dr Zambry Abdul Kadir as Perak's new Menteri Besar by the Sultan of Perak on Friday, 6 February, 2009, the Sultan had decided that the then Menteri Besar, Datuk Seri Mohammad Nizar Jamaluddin had ceased to command the confidence of the majority of the members of the State Legislative Assembly, on the following premise, as stated, inter alia, in the media statement of the office of the Sultan of Perak, issued on Thursday, 5 February, 2009:

Yang Amat Berhormat Datuk Seri Mohd Najib informed that the Barisan Nasional and its supporters, now comprising 31 state assemblymen, had the majority in the State Assembly.
On the order of the Duli Yang Maha Mulia to ascertain that the information given was accurate, all the 31 state assemblyman were to present themselves before Paduka Seri Sultan.

After meeting all the 31 assemblymen, DYMM Paduka Seri Sultan of Perak was convinced that YAB Datuk Seri Mohammad Nizar Jamaluddin had ceased to command the confidence of the majority of the State Assembly members.

Therefore, in the case of the appointment of the new Menteri Besar of Perak, it appears that the Sultan of Perak had more than fulfilled the criteria as embodied in section 2(2)(a), Part I, Eighth Schedule of the Federal Constitution of Malaysia.

Thus ends my brief legal overview of the issues at hand.

I would sincerely appreciate your kind thoughts and comments.

2 comments:

Termizi said...

Satu ulasan ilmiah yang menarik. Saya ada juga mengupas tajuk ini secara ilmiah dan cuba untuk membawa sebanyak mungkin hujah kedua-dua belah pihak. Sla layari blog saya untuk menambahkan ilmu saudara di http://mizico.blogspot.com/2009/02/perbincangan-tentang-isu-perlantikan.html

The Fox and the Hound said...

I do not agree with Nurhalida's views. Her interpretation of the Sultan's 'wisdom' in establishing for himself as to which party commands the support of the majority in the House appears to be fundamentally flawed. HRH's motives in doing so have been questioned. Nizar's request for a dissolution is also not according to the manner laid out in the constitution i.e vote of confidence first, then HRH to decide whether to dissolve the assembly or not. Of course it is well known fact that had the State Assembly reconvened, the outcome of the vote will be a foregone conclusion.. with the anticipated suspension and non participation of members from one party, its a walk in the park for the other. We now know from the recent court decisions that the situation is even more muddled than ever. So, as people in a land that is deemed not only to uphold the rule of law but also the principles of human rights, human decency and morality, the best option would be for HRH to dissolve the Assembly under Article 55 and fresh elections be held.