… it is my view that the genius in our Constitution is that we have chosen a system of Government anchored on the principles and practices of Constitutional Monarchy and parliamentary democracy whereby the Yang di Pertuan Agong and the Rulers constitutional roles are set out in the Constitution and the people is given the freedom to elect a government of their choice in a free election with the elected government being made answerable to the elected legislature….
per YA Dato’ Abdul Aziz bin Abdul Rahim J in Dato Seri Ir Haji Nizar bin Jamaludin v Dato’ Dr Zambry bin Abd. Kadir (KLHC Application for Judicial Review No. R6(R3)-25-25-2009)
The following are selected quotations from the Grounds of Judgment of the High Court. Scroll down for a link to the full judgment.
…It is clear from the above passages that the provision of the Constitution is not be construed in a narrow or pedantic sense. It must be construed liberally. However in so doing, 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. Applying this principle, can a deeming provision, (as suggested by the Attorney General and Dato’ Abraham for the respondent) be read into Article XVI(6) Perak’s State Constitution to deem that the Office of the Menteri Besar falls vacant when the applicant refused to resign? A deeming provision is a legal fiction. It refers to something which does not exist but to be taken as in existence. Ordinarily a deeming provision would be expressly provided for by the draftsman in a statute if the legislature wants the particular provision of the statute to be read in that manner. In the absence of such express provision I do not think that a deeming provision should be read into Article XVI(6). To do so would be do violence to the language of the Article XVI(6) Perak’s State Constitution which in my opinion contains no ambiguity whatsoever. But in my view no matter how mandatory is the word “shall” in Article XVI(6), it cannot be read to mean that the office of Menteri Besar becomes or deemed to be vacant if the Menteri refuses to resign under the circumstance of Article XVI(6) Perak’s State Constitution. It cannot be done because the language of Article XVI(6) is so plain and obvious. What is so plain and obvious in Article XVI(6) is that the Menteri Besar shall tender his resignation if he faces the circumstances specified in the said Article which is that he has ceased to command the confidence of the majority in the State Legislative Assembly. I will reiterate what NS Bindra said about the doctrine of implied construction which is that the doctrine is limited to the extent of preventing judicial amendment of the fundamental law and that the Court has no right to insert any clause in the Constitution which is not expressed and cannot be fairly implied. What if the Menteri Besar refuses to tender his resignation and he cannot be removed from office? It is obvious that there is a lacuna in the said Article. But that lacuna cannot be filled up by reading into the Article a deeming provision. The lacuna must be filled up by amendment to the said Article.
…In a democratic society and under the framework of constitutional monarchy, the ruler is expected to discharge his constitutional role and function in accordance with the provision of the Constitution. He is expected to act and decide in the best interest of the country in discharging his duty under the Constitution to give effect to the democratic principles enshrined in the Constitution. In this respect, it is wise to recall what High Royal Highness Sultan Azlan Shah in his book ‘Constitution of Monarchy, Rule of Law and Good Governance on the Role of the Yang di-Pertuan Agong’ (and this will also be applicable to the Rulers and Governors in the States) on giving on withholding of consent to dissolve Parliament (or the State Legislative Assembly on the case may be). His Royal Highness said, “..under normal circumstances, it is taken for granted that the Yang di-Pertuan Agong would not withhold his consent to a request for dissolution of Parliament. His role under such a situation is purely formal.”
…In another word, one cannot say that because His Royal Highness has judged that the respondent is likely to command the confidence of the majority in the Legislative Assembly therefore the applicant ceases to command the confidence of the majority of the members of the Legislative Assembly. I would say that the personal opinion or judgment of His Royal Highness is irrelevant to the construction of Article XVI(6). The second reason is that Article XVI(5) Perak State Constitution states that the Executive Council shall be collectively responsible to the Legislative Assembly. Under Article XVI(2)(a) the Menteri Besar is appointed to preside over the Executive Council. Article XVI(6) speaks of “If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly..”. Reading these three provisions in Article XVI Perak State Constitution it is logical and in fact Article XVI(6) requires it to be so, that it is the Legislative Assembly that determines whether it has confidence in the Menteri Besar as the Head of the Executive Council. The Legislative Assembly may make the determination through a vote of no confidence against the Menteri Besar.
…On that premise I would say that phrase ‘ceases to command the confidence of the majority of the members of the Legislative Assembly’ in Article XVI(6) ought to be construed as to have ceased to command the confidence of the majority after the a vote of no confidence had been taken in the Legislative Assembly.
…On the above principles and on the facts in this case I am of the view that a writ in the nature of the quo warranto can be issued at the instant of the applicant against the respondent. There is no dispute that the respondent appointment was by His Royal Highness the Sultan of Perak in the exercise of His Royal Highness royal prerogative; but at the time of the appointment there is already a Menteri Besar Perak that is the applicant. He has not resigned and there is no vote of no confidence passed against him on the floor of the State Legislative Assembly. There is no provisions in Perak State Constitution that allow the appointment of two Menteri Besar at the same time.
…Guided by the wise words of His Royal Highness in the above passage, it is my view that the genius in our Constitution is that we have chosen a system of Government anchored on the principles and practices of Constitutional Monarchy and parliamentary democracy whereby the Yang di Pertuan Agong and the Rulers constitutional roles are set out in the Constitution and the people is given the freedom to elect a government of their choice in a free election with the elected government being made answerable to the elected legislature. It is to this genius in our Constitution that the Prime Minister or the Menteri Besar, as the case may be, must answer. For that reason, I hold the view that in construing Article XVI(6) Perak State Constitution, a vote of no confidence on the floor of the Legislative Assembly is require to remove the Prime Minister or the Menteri Besar.
The 78-page Judgment may be downloaded here.
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