IT is a cardinal rule in the game of musical chairs that once someone has occupied a seat, no one else can validly sit in it. The Federal Court however, appears to think otherwise in declaring the Barisan Nasional (BN)’s Datuk Seri Dr Zambry Abdul Kadir the rightful Perak Menteri Besar. This is despite the fact that ousted Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin, from Pakatan Rakyat, never resigned from office.
The Federal Court ruled that the sultan could establish a loss of confidence in the menteri besar by referring to “extraneous sources” and therefore appoint a new menteri besar. In its 11 May 2009 decision, however, the High Court said that this could only be decided by a vote of no-confidence in the legislative assembly.
Party politics and even Perak aside, has the Federal Court’s decision helped or hindered Malaysia’s progress in becoming a more genuine democracy? Should the sultan or any other head of state have the power to decide when a menteri besar has lost the assembly’s confidence? Or is a democratically-elected legislative assembly the proper forum for such issues to be settled?
“Extraneous sources”
Article 16(6) of the Perak Constitution states that if a menteri besar loses the majority’s confidence in the state assembly, then he or she shall resign together with the executive council. This must happen unless the sultan dissolves the assembly at his or her request.
The Federal Court‘s unanimous decision was that Nizar had indeed lost the majority’s confidence in the assembly. They cited several reasons for their conclusion:
Nizar himself admitted this loss of confidence by requesting the sultan to dissolve the assembly under Article 16(6), and
Thirty-one out of 59 Perak representatives had declared their support for the BN to the Sultan of Perak.
The court rejected Nizar’s argument that he had invoked Article 36(2) instead of Article 16(6). Article 36(2) confers general powers on the sultan to dissolve the assembly without mentioning any prerequisites.
At any rate, the Federal Court ruled that regardless of which article Nizar invoked, it was clear that Nizar had lost the majority’s support. This was because of the undisputed testimony of the 31 elected representatives to the Perak Sultan.
The sultan was therefore right in concluding that the assembly had lost confidence in Nizar and hence was also correct to direct Nizar to resign. Since Nizar failed to resign, to give effect to Article 16(6) which states that the menteri besar shall resign upon losing confidence, his seat was therefore deemed vacant and a new menteri besar appointed.
The Federal Court also affirmed the sultan’s right to refuse to dissolve the assembly despite the menteri besar’s request as this was within the ruler’s absolute discretion.
Legislative assembly decides
High Court Judge Datuk Abdul Aziz Abdul Rahim, whom the Court of Appeal and the Federal Court overruled, took a different view.
He held that only a vote in the legislative assembly could determine the loss of the majority’s confidence as described under Article 16(6). Although he firmly affirmed the sultan’s constitutional role to appoint a menteri besar, Justice Aziz said the sultan’s opinion was “irrelevant” when it came to ascertaining a loss of confidence amongst assembly members. His reasons were as follows:
Nothing in Article 16(6) says the sultan is involved in ascertaining a loss of the majority’s confidence in the assembly.
Article 16(7) expressly states that the menteri besar does not hold office at the sultan’s pleasure. The sultan therefore has no power to dismiss or direct a menteri besar to resign.
Article 16(5) also states that the executive council, which the menteri besar heads, is collectively responsible to the legislative assembly.
Justice Aziz concluded that as the menteri besar was accountable to the assembly, and not to the sultan, it is only through the assembly that a loss of confidence can be determined.
This was in line with established precedents such as the Stephen Kalong Ningkan case in 1966. It was held by the Borneo High Court then that the Sarawak Governor had no jurisdiction to direct the chief minister to resign. This was despite the governor receiving a letter signed by a majority of the state assembly declaring their loss of confidence in the chief minister.
Deemed vacant?
Justice Aziz also ruled that even if it was established that the menteri besar had lost the majority’s confidence, the constitution did not give the sultan any power to direct him to resign.
NizarHe acknowledged that there appeared to be a lacuna in the law as the constitution was silent on what would occur if the menteri besar refused to resign. Justice Aziz stressed that nonetheless, it would be wrong to therefore conclude that the seat would be deemed vacant, stating: “…the Court is not at liberty to stretch or pervert the language of the constitution for the purpose of supplying omission or of correcting supposed errors.”
Any lacuna should be dealt with by proposing an amendment to the constitution which can be debated in the assembly and not by the courts reading their own corrections into it.
As no vote was taken in the assembly on Nizar, a loss of the majority’s confidence was therefore not established. Nizar therefore did not need to resign according to Article 16(6). And since he had indeed not resigned, Nizar was still the menteri besar. And as there was nothing in the constitution that allowed for Perak to have two menteris besar at the same time, Zambry’s appointment was therefore invalid.
Democracy
Although the loss of the majority’s confidence may seem like a simple mathematical sum which anyone can calculate, democratic structures and constitutions must be followed to ensure accountability and fairness. Malaysia has a constitutional monarchy and a ruler’s prerogatives and discretions are strictly governed by the federal and state constitutions.
In the absence of any provision conferring power on the sultans, their opinions would be as legally relevant as any other Malaysian’s in deciding state matters. Perak has a democratically elected state government, accountable to the people and subject to fresh elections every five years. Justice Aziz’s conclusion that it was the assembly that should have determined the confidence issue, rather than the sultan, seems closer to democratic principles.
Zambry
Although the Federal Court is the apex court in Malaysia, and can freely overrule the High Court, it still has to do so based on sound reasoning and in reference to established precedents. In affirming Zambry’s position, the Federal Court has read extra meanings into Article 16(6) of the Perak constitution other than what a plain reading would produce. These extra meanings are that:
The sultan can conclude that a menteri besar has lost the majority’s confidence through extraneous sources despite the constitution giving no role to the sultan on this matter; and
That the menteri besar’s seat can be deemed vacant if he doesn’t resign, even though the constitution is silent on this.
Whatever the merits of this recent decision, its weaknesses will certainly not help build public trust and confidence in the judiciary’s already battered image. And that surely cannot bode well for democracy in Malaysia. 
Ding Jo-Ann never encountered such a mix-up when playing musical chairs.
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somethingStirring says
“Thirty-one out of 59 Perak representatives had declared their support for the BN to the Sultan of Perak.”
Does ‘support’ include support given under undue influence? Before the coup d’etat, the corruption charges against two of the defecting assemblymen was well publicised in the media. Then they disappeared and resurfaced and became BN friendly. Did the ruler and these judges consider these? Is this so-called justice? Isn’t it that justice must be seen to be done not only done?
So now anybody can kidnap enough numbers of MPs (or their families), threaten them, get in the limousines, drive to the palace, say they have a change of heart, and voila, the government changes hands?
Then what is the point of having elections?
Can TNG follow up on the corruption [charges] against the two frogs?
Curmudgeon, Subang Jaya says
As I sit thinking about how Dr Zambry and his leading national Umno backers in Kuala Lumpur might now feel as they walk the “corridors of power” Kuala Kangsar, I am reminded of that wonderful Canadian “folk poem”:
Yesterday, upon the stair,
I met a man who wasn’t there
He wasn’t there again today
I wish, I wish he’d go away…
When I came home last night at three
The man was waiting there for me
But when I looked around the hall
I couldn’t see him there at all!
Go away, go away, don’t you come back any more!
Go away, go away, and please don’t slam the door… (slam!)
Last night I saw upon the stair
A little man who wasn’t there
He wasn’t there again today
Oh, how I wish he’d go away
Reza says
It is painfully clear that some Federal Court judges are not fit to judge, as they can’t even interpret the law correctly. Or [maybe] they were “coerced” by our ruling coalition to give them a favourable ruling.
Ibnu Suffian says
A royal prerogative to override parliament and to short-circuit processes or obviate actions that ought to occur and be decided “on the floor of the House”, or else (as was sought in this instance by the then incumbent menteri besar) by direct electoral referral to the voters as a whole–whom those elected to the legislature are explicitly chosen to represent–amounts to “selective democracy at royal pleasure and continuing personal discretion”.
I am not sure that this is what those who framed and solemnly promulgated the national constitution in 1957 had, even remotely, in mind.
Tan says
“Any lacuna should be dealt with by proposing an amendment to the constitution which can be debated in the assembly and not by the courts reading their own corrections into it.”
Look like the judgment is bad and the verdict is of poor reasoning. Perhaps, judges need to go back to school too.
danny leebob says
Justice Aziz admitted that there is a lacuna in the law. That is where the main issue of the problem is. If the law is silent then who is going to say what is right and wrong. The judge also said he cannot stretch or pervert the law.
However, it seems that the Sultan has already done that. By declaring the seat of the Menteri Besar vacant, he has purported to add into the law a solution on “what if the Menteri Besar refuses to resign?”
This type of issue has not happened before so there are no precedents to refer to. The Perak government is based on the English model. There is a delicate balance between the legislative, the executive and the constitutional monarchy. The English have, for centuries, managed to maintain this delicate balance without even a [written] constitution. May be Ms Ding should do some research on the conventions and practices of the English Parliament. I understand English parliamentarians take the issue of accountability seriously. They will resign from their positions if there are doubts on their competency and morality. Conventions and practices may enlighten us on issues, like what if the MB refuses to resign and what are the perogative powers of the constitutional monarchy.
However I believe all laws will be useless if the people who are subject to it, do not have an understanding that their action is ultimately subjected to the Canon law.
thokiat says
Could this lead to an overruling by the Federal Court itself, the way it did for the Adorna case 10 years down the road? By then, irrepairable damages would have been caused.
M.K. says
It looks like game-over for PR in Perak for now. Let us look forward and wait for GE13 to show them what the Perakians want (and had wanted in the first place).
Antares says
The name of the game is Gamuda…
ellese A says
It is disheartening to see that Ding is partisan and not balanced in reporting. In all her writings she fails to even mention the culpability of Nizar in holding basic democratic principles which all Western liberal democracies (including Israel) uphold. Clearly when you are partisan you would not have the objectivity to accept the decision of the Federal Court.
Let’s not get into the details of the judgement and establish basic precepts of democracy. From established public facts, it is undeniable that Nizar has lost the majority. Trying to argue otherwise is conceited and not truthful. From here, once a leader loses his majority the honourable thing to do is to resign. In fact it can be argued that it’s a convention under the English constitutional law that he must resign as well. This is a basic principle of democracy. When the PMs of Israel and Italy lose the majority they too have resigned. There are too many instances to cite on this. This principle is embeded in our constitution including Art 16 of the Perak Constitution.
What if he does not want to resign? Does it mean he must tender? Art 16 is clear that “he shall resign” meaning that if he doesn’t the law deems that he has resigned. Any other way to interpret this will lead to the preposterous conclusion that an MB can hold office even though he has lost the majority’s confidence. So the federal court decision on this issue is without doubt very sound.
Next question is who decides? Prior to this case there are two types of legal precedents i.e. “extraneous circumstances” and “by the assembly”. Whichever the case, the fact is by then it’s public knowledge that Nizar had lost the majority. It is public knowledge also that Nizar took steps not to proceed with the sitting of the full assembly and denying all Aduns to vote. Don’t you think that a reasonable objective person would have concluded that Nizar had lost it and there was someone [else] with a clear majority? Don’t you think that as a fair determinant person you would want those who have the majority to rule? The Sultan did just that. He was fair and right and it is reflected by the federal court.
What was wrong was Nizar. He condemned the Sultan for not allowing the dewan to decide but he took all the steps that he could so that a full proper dewan did not decide. In other words he condemned the Sultan for not following Ningkan’s case but he never at any instance want to apply Ningkan’s himself.
He is definitely two-faced and a hypocritical liar. As Ding is partisan I don’t expect her to see this. But as a journalist she should at least be fair and responsible. Nizar was culpable in the whole episode. The Sultan exercised his discretion lawfully. He was right. You cannot deny those who have the majority of the assembly to rule. For a Sultan to act otherwise would be irresponsible and lead to anarchy.
Cicero Kelantanis says
As for the idea that the law rests upon, presumes and even itself creates a “level playing field” for all contenders and claims regardless of the power that they may wield, the opposite view is not novel or original.
The point was eloquently made by Anatole France (1844-1924):
“The law in its magnificent impartiality forbids rich and poor alike to steal bread, beg in the streets and sleep under bridges.”
Paris and Perak are not all that far apart, in some senses anyway.
Reza says
@Ellesse
You are clearly deluded to think what happened was fair and just. Yes, Nizar lost the majority support of the assembly. Undeniably, the reason for this change was because of the frogs. The real question is: Did these frogs have the blessing of their constituents?
There are two reasons why people vote:
1) They vote for the candidate
or
2) They vote for the party represented by the candidate
In the case of the frogs, did their constituents vote for them or for the coalition they represented, which is the opposition? This is why Nizar called for the assembly to be dissolved so that fresh by elections could be held in the affected constituencies to determine if the frogs still had the support of their constituents. Instead, the sultan of Perak denied Nizar’s request. It is clear that it is the sultan who acted undemocratically, not Nizar.
Also, there is no evidence to support your claim that Ding is partisan and biased in her reporting. She is merely stating that democratic due process was not followed, which is not only true in this case, but it is her job as a journalist to report such things.
Ellese says
Dear Reza,
I am not under any delusion at all. I once met one of Anwar’s highly respected lawyers. On the issue of the frogs, his view was strikingly different. He said that if a person has a right to associate he should also have the right to disassociate. This to him is a constitutional right. (For your information there is no law to prohibit the frogs.) It is on this basis also that Anwar went about the infamous 916 plot in overtaking the government by alluring the frogs. Now who is deluded?
Contrary to your belief, frog jumping is actually democratic. We see this very often in various developed liberal democracies from Italy to UK and even Israel. In fact as pointed out by the esteemed lawyer, even Winston Churchill has jumped ship and became a frog but yet he then became a very famous, respected PM.
The point I was trying to make is that there are general principles long established in a democratic procedure. Time and time again, in a Westminster-style democratic parliamentary system which we have adopted, representatives’ numbers are crucial. Whoever has the majority must be respected.
This angle was totally ignored by the writer in all her writings. The culpability of Nizar was never once highlighted. As Sultan Azlan decided at that point of time, the striking fact that distinguishes this case with all the cases which Nizar had alluded to in court was that he had clearly lost his majority and that there was a clear majority by BN. Is it not incumbent then of a ruler to respect the basic rule of democracy where the majority must be given the right to rule? The Sultan in my view was right and wise. It’s a landmark case [in] which constitutional lawyers must appreciate the fact of the matter.
fauzikir says
Dear Ellese,
You are right and the Sultan was right too, if, yes, there is a very big IF, you looked through the window from when Nizar met the Sultan when he was asked to resign.
But try to expand your horizons a bit. Try to understand the underlying reason on why this tragedy happened.
Then you get the big picture, [which is] closer to the truth and fairer. This the Sultan and even sadder, those learned judges failed to do.
What you are talking about is not unlike what the Israelis have kept doing, justifying their bombing on the Palestinians just because some rocks and mortars were thrown to them. But the bigger picture which began 60 yrs earlier of why the Palestinians went into rock-throwing and rocket launching, which is to rise against the thievery of their lands was not painted.
Therefore all I can say is do not put blinkers on your views and try to get closer to fairness as fairness is closer to godliness.
Salam