The Loss of Confidence: Who Decides?

Kevin YL TanIntroduction

Last week, I wrote an online comment on the nature and ambit of the Sultan of Perak’s powers (see www.loyarburok.com here), basing my thoughts on the High Court decision in that case. Shortly afterwards, two of the three Court of Appeal judgments – those of Dato’ Raus Sharif and Dato’ Ahmad Maarop JJCA – were issued. As I write this, the third judgment has yet to be released.

By now, the events leading to the constitutional crisis in Perak are well known. A defection of three Pakatan Rakyat (PR) assemblymen led Dato’ Nizar Jamaludin (Nizar), the PR Menteri Besar (MB) to request the Sultan (HRH) to dissolve the Legislative Assembly (LA), so that the numeric deadlock in the LA between supporters of PR and the Barisan Nasional (BN) could be resolved. Nizar’s request was refused and HRH proceeded to appoint Dato’ Zambry Abdul Kadir the new MB for the state. Nizar applied to the High Court for a declaration that he remained MB of Perak and on 11 May 2009, the Kuala Lumpur High Court held that since there had been no vote of confidence on the floor of the LA, Nizar remained the rightful MB of Perak and Zambry appealed.

Dissolution of the Legislative Assembly: Two Regimes

Raus JCA agreed with the High Court Judge, Abdul Aziz J, that there were two regimes under which a request for the dissolution of the LA could take place – a general request to dissolve under Article XXXVI(2) and a specific request under Article XVI(6) which reads:

If the Menteri Besar ceases to command the confidence of the majority of the members 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.

Even though Abdul Aziz J and the judges in the Court of Appeal felt that Article XVI(6) is clear and unambiguous, they arrived at diametrically opposed readings of this key provision.

Articles XVI(6) and XXXVI(2): A Plausible Reading

Article XVI comes under the heading “The Executive Council” and the relevant provision is the 6th of its 8 sub-clauses. Though headings, sub-headings and marginal notes do not technically form part of the constitutional text, they help us understand the structure and organisation of the Constitution. Article XVI is clearly intended to deal specifically with matters relating to the Executive Council and not generalities.

A general request to dissolve the LA and the Sultan’s discretion thereof is governed by Article XXXVI(2) read with Article XVIII(2)(b). That means that HRH has a general power to dissolve the LA and may act in his discretion in withholding a request for dissolution. This general request for dissolution does not fall under Article XVI(6) which must be read sequentially: A MB who has already ceased to command the confidence of the majority of the members of the Legislative Assembly must tender the resignation of the Executive Council, but only if HRH exercises his discretion to refuse to dissolve the Legislative Assembly upon that MB’s request for dissolution. Whether the MB has lost the confidence of the majority of the members of the LA – as opposed to whether the MB was likely to command the confidence of the majority of LA members under Article XVI(2) – is a matter for the LA and not HRH.

Loss of Confidence: Who Decides?

Raus JCA’s judgment assumes HRH’s sole authority in determining if the MB had ceased to command the LA’s confidence the moment the MB makes a request to dissolve the LA. There is something contradictory about this position. Who actually decides whether the request for dissolution is made under Article XVI(6) or Article XXXVI(2)? If the MB decides, then HRH has no role in determining if the MB has lost the LA’s confidence.

Raus JCA took great issue with the High Court’s finding of fact, holding that Abdul Aziz J “failed to properly and adequately appreciate the evidence adduced before him” (para 50). Raus JCA went on to state that the events “bear out the undisputed fact that Nizar’s request for dissolution was made because he lost the command and support of the house” (para 23). Nizar’s request for dissolution was thus under Article XVI(6) and not Article XXXVI(2).

Even assuming that it is commonplace and acceptable for appellate courts to overturn the finding of facts by the court of first instance, this reading presents us with a conundrum. Does this mean that if an MB goes to HRH with a request for dissolution, HRH must decide – at that point – whether the MB before him is one who still has confidence of the LA. If he does, the dissolution proceeds under Article XXXVI(2), and if he does not, it will proceed under Article XVI(6). Assuming that this sounds logical – and it does not – then why did the Court of Appeal go to such lengths to controvert the High Court’s finding of fact that the request had indeed been made by Nizar under Article XVI(6) and not Article XXXVI(2) as Nizar himself claimed?

Conclusion

Many questions remain unanswered and we hope that leave to appeal to the Federal Court will be granted so that this matter can be resolved authoritatively. My closing thoughts are these:

(a) The only way to determine confidence (or otherwise) of anyone as MB is to have a formal vote on the floor of the LA. This is especially crucial where the absence of anti-hopping laws allows assemblymen and assemblywomen to transfer loyalties at a drop of a hat.

(b) MBs should be required to state clearly in requests for dissolution, whether this is being done under Article XVI(6) or Article XXXVI(2). That way, there can be no issue of how HRH is to deploy his discretion.

Postscript: Datuk Zainun Ali JCA’s judgment is now accessible here. On 9 July 2009, the Federal Court granted leave to Nizar on three questions.


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15 Responses to The Loss of Confidence: Who Decides?

  1. Pingback: The LoyarBurok Book Review: “Perak: A State Of Crisis” – Cascading Illegality | LoyarBurok

  2. Pingback: The Perak Crisis: Keep Focused on the Real Issues

  3. Loyar Bagus

    Mat Top,

    Prior to the dismissal, Nizar did not have a "minority government"; a minority government rules where it has the confidence of independents or minor parties (or where these independents have not expressed their loss of confidence in the Government or it has not been tested). The three frogs had publicly declared that they had lost confidence in Nizar – the only missing link was the vote of no confidence, which would have been the first item on the agenda at the next sitting day at the Assembly had events not taken their current turn.

    I don't think it is plausible to think that Nizar's current Government could have continued in any form after the frogs had jumped.

  4. Lawyer Lua, no need to ask Professor lah. Your questions, first year law students who had studied British constitutional law can easily answer.

    Firstly, Uk and many other commonwealth countries have had minority governments over the years, meaning, in the LA they had minority members. Go to Wikepedia and search for the meaning of minority gov't and the number of minority gov'ts which UK and Canada had over the years. You want to topple this minority gov't, the LA/Parliament has to pass a vote of no confidence. Otherwise the minority government continues to operate with 'minefields' in its path since it is in the minority.

    In Perak,tThere was a hung assymbly( 28:28) with the 3 frogs having their seats declared vacant. Even assuming that the seats were not declared vacant then you have a minority gov't( 28:31). Whether it is a hung LA or a minority gov't, for the PR led gov't to function effectively especially in matters of the the smooth implementation and passage of Gov't bills they have to kowtow to BN Assy'men to support those bills. A rejection of any bill introduced by the MB can tantamount to the MB being regarded as having lost the confidence of the majority of LA. And he had to tender the resignation of the Exco according to constitutional convention.

    In any constitution the MB/PM is given a secret weapon which he can use in time of crisis; namely to advise the Sultan to dissolve the LA which in most cases the Sultan has to accede. This is what Nizar did but the Sultan has other personal interest and rejected the request.

    Finally, it is not a matter of logic but of constitutional law and of convention that a minority government operates and continues to operate until it has been kicked out by the LA and no one else Sultan only waits the outcome of the LA or the most he can do is to order the LA to debate on a no confidence motion against his MB and to report back to him the result of such motion.

    Other than the above Sultan cannot do what he likes or what other people ordered him to do to their liking.

  5. Lawyer Lua

    Professor,

    When the MB is in control of the Majority(31:28) he did not request HRH to dissolve the LA.

    But when the MB is in control of the Minority(28:31) he requested HRH to dissolve the LA.

    Professor seems to suggest that HRH should do nothing further after HRH has refused to dissolve the LA but wait for the report of the LA.

    As a matter of logic, can Professor suggest what would happen to the MB who is only controlling the Minority(28:31)?

  6. Hong

    In Malaysia, courts are under presure by political party, BN. I dont have hope that Nizar will win in Federal court this time.

    All rakyat will wait for next GE if we want justic in court. PDRM are on BN side. People wearing black also have to go into lockup, even those 5 solicitors have to face the same. Where got laws now in Malaysia under BN.

  7. Stevemax

    u know at most the lower court judges are only susceptible to errors in making their decision [if any] however unlike the higher court judges, the lower court judges dont suck up to the government. to certain extent they represent the aspirations of the younger generation who only wants to be guided by justice and fair play.

  8. Stevemax

    well, unlike the lower courts nowadays you hardly get justice at the higher courts. i would rather appear before junior magistrates than old junks at the higher courts. the lower court judges are quite straight in their approach though at times they are naive.

  9. aca

    it depends on BN, simple aint it.

    throw the constitution to the bin. there aint no meaning anymore.

    bye.

  10. NO PUPPETS ALLOWED IN COURTS

    It will indeed be very sad

    If any judge ever acts

    Like a puppet on a string

    With only bad facts spring

    (C) Samuel Goh Kim Eng – 100709
    http://MotivationInMotion.blogspot.com
    Fri. 10th July 2009.

  11. Malaysian

    In short, the Appeal and Federal courts will make any decision UMNO wants. It's not very difficult to make convoluted decision.

  12. Mmmm….!

    veryupset lah this…!

  13. Loyar Bagus,

    Correct. We are wasting our time. According to NH Chan, which I fully agree, " The language of these two clauses, Clause (2)(a) and Clause (6)( Article 16) is easy to understand. There is no ambiguity". Read again his 'gobbledegook' article.

    It is ver rare for an appellate Court to overturn or to reverse the finding of facts by the Trial crt. Very rare indeed and it only happens in very exceptional cases where the Trial judge had committed a serious and grave error and had grossly misdirected himself. Nizar avers, and which was disputed by that SLA, that he requested dissolution under Art. 36(2). To resolve the contradictions, both were called for cross-examinination on this issue and the Court having read their affidavits and considered their answers and demeanors whilst under cross examination came to a finding of fact that Nizar did'nt ask for a dissolution under Art.16. Nizar asked for dissolution under Art 36(2).

    Why Appellate crt go and reverse this finding of fact which was correctly made by the High Crt. That is why I say they were politically directed to reverse the High Crt decision and then try to reason their judgement later. NH Chan said, "gobbledegook" reasoning.

    I say why politically directed; why on earth did that Ramly fella gave a stay order just 3 hrs after Zambery filed his appeal. And incidentally when Nizar requested for a stay order, it was conveniently rejected by the Court. Where got fair play lah.

  14. Loyar Bagus

    MatTop,

    So you mean we were wasting our time arguing over the interpretation of Art 16?

    Damn.

  15. Any first year student would understand and would come to a finding of fact that Nizar went to seen R. Azlan Shah and request for dissolution under the general provision of Art 36(2). Every politicians knows that and it is constitutionally accepted practice that an MB lose confidence of the majority when the LA had passed a vote of no-confidence. The court precedents are Kalaong Ninkan and the Kelantan case of MB Mohd Nasir. To reiterate again, that is accepted common practice known to all practicing politicians and in accord with constitutional convention and the Perak/Fed consti.

    Since a vote of no-confidence had not been passed by the Assy, everybody knows that Nizar could not have asked for a dissolution under Art.16(6). Only an idiot doesn't understand that and that includes the 3 CA judges.

    The trouble with the CA judges is that they decide first, perhaps on political instructions and then try to reasons their decisions later. That is why it is all gobbledegook according to NH Chan.