MB v MB appeal: 3 Answers

With reference to the 3 questions for the Federal Court on the MB v MB appeal mentioned here, my answers are as below:

1. There is no provision in Article 16(6) for the seat of a Menteri Besar (MB) to become or has been vacated.

But Article 34(1) says:

If a member of the Legislative Assembly becomes disqualified for membership of the Assembly or dies, his seat shall become vacant.

We all know that whenever there is a situation when there is no MB, such as, when the incumbent MB dies (Article 34(1)) or resigns (see Article 16(7) which says “any member of the [Executive] Council may at any time resign his office”; a MB is a member of the EXCO: see Article 16(1) and (2)(a)) or has been disqualified as an assemblyman (see Article 31) or has been removed from office by the Assembly, then the Ruler can appoint another assemblyman as MB (because Article 16(2)(a) says that the Ruler appoints an assemblyman as MB based on his judgment).

2. Whenever one has to determine a loss of confidence of the majority in the legislature, surely it must follow that the Legislative Assembly is the only place to go to for such determination? Anything short of a vote being taken at the legislature would be unacceptable to the voters who put the assemblymen there in the Legislative Assembly.

I ask, can there be any other means other than a vote of confidence in the Assembly which would be acceptable to the voters who put the assemblymen there? Certainly, it cannot be the Sultan who does not have the power to do so in the first place. Can you think of any other acceptable means?

3. I think I have answered this in my answer to the first question. The reality of the situation is that the incumbent MB Nizar has refused to resign and the Sultan has no power to dismiss him or to deem the office of MB vacant.

Clause (7) is clear on the point:

Subject to Clause (6) a member of the [Executive] Council other than the Menteri Besar shall hold office at His Royal Highness’ pleasure.

(the emphasis is mine)

So that, until the issue of confidence on Nizar has been determined in the Legislative Assembly, he is not bound to tender the resignation of the Executive Council. Therefore, until it is known that the MB had ceased to command the majority of the members of the Assembly, there is no obligation for the MB to tender the resignation of the Executive Council.

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Posts by NH Chan

NH Chan, a much respected former Court of Appeal Judge, is a gavel of justice that has no hesitation in pounding on Federal Court judges with wooden desks for heads. Retired from the Judiciary to become the People’s Judge. Wrote the explosive “Judging The Judges”, now in its 2nd edition as “How To Judge The Judges”. Once famously hinted at a possible “case match” between lawyer and judge by remarking that “something is rotten in the state of Denmark” (see Ayer Molek Rubber Company Berhad & Ors v Insas Berhad & Anor [1995] 3 CLJ 359). We need more people like NH Chan. That is why you should buy PASOC and his book.

Posted on 13 July 2009. You can follow any responses to this entry through the RSS 2.0.

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10 Responses to MB v MB appeal: 3 Answers

  1. When is an Assembly an Assembly? When the individual members of the Assembly came together at the sultan's palace, did they constitute an Assembly? Could members of an Assembly coming together on the fly or coming together at a funeral or at a wedding and there decided to conduct an urgent matter of Assembly business, would that constitute a legal Assembly?

    I would have thought an Assembly can only be such when it comes together, having formally been called into session. the place they meet should not matter. It could be under a tree for all I care.

    It can be quite dangerous if we were to consider the Assembly as having met when they got together at the Sultan's palace as then this would set the precedent for decisions to be made on the fly just because a majority of the members had occasion to be present at a place at a given time.

    When the Sultan determined that more than half the members of the Assembly had indicated to him that they had no confidence in Nizar that the majority in the Assembly had indicated no support for Nizar the Sultan has to ask himself, if the next time these same majority met at a coffee shop and decided on some issue without first going through due process, is he bound by it?

    After all, isn't the Sultan saying that the sum of the individuals in the Assembly does constitute the Assembly! no need for proper notice being given, no need for Assembly to be called into session whether by the speaker or the constitutional authority! why then even bother going through the various processes and procedures?

  2. Lawyer Lua

    Nizar went to see the Ruler under Article 36(2), therefore Article 16(6) is not applicable to Nizar's case.

    The Majority just want to know.

    For the purpose of appointing the MB, the Majority are allowed to meet the Ruler in the Palace and express their confidence.Can the Majority do the same(meet the Ruler in the Palace) for the purpose of removing the MB?

  3. I agree lah. The CA judges may have not studied British constitutional law. Since there are and there will be many constitutinal issues that will arise later, given Umno's propensity of seizing power by the back door, perhaps it is best the CJ should send the 3 CA judges for a special course on British constitutional law. Otherwise we'll be reading gobbledegook dan balderdash( borrowing from the new legal terminology of Judge NH Chan) judgements on constitutional law.

    r_venugupal said above; Nizar should be re-instated. Why may I ask that he be re-instated. Nizar was and still is the legitimate MB of Perak, duly appointed by Perakian and assented to by the Sultan; and prevented from performing his lawful and legal duties. You should ask that illegal and unlawful Umno 'MB" Zambery to vacate his office instead. That guy has no guilt of shame and embarrassment in occupying the MB's office illegally, unlawfully and unconstitutionally.

    And finally, during the time of Eusoffe Chin as CJ, he used to get directions from his political master how to fix/decide cases. Eusoffe Chin of all people referred to Mahathir, then PM, as my political master/boss which he had to obey at all cost. So much for seperation of power, and that is the trouble when you have below average malays being appointed as judges more so superior court judges. They could be easily manipulated by other smart and intelligent but evil malay politicians.

  4. bengaun

    I propose all Appeal Judges go for a refresher course in English and Constitution Law coupled with special emphasis on integrity, honesty and competency. Of course, if the Ag or Chief judge were to conduct such a course then all is lost!!!!!So, whatever, have someone qualified to do the necessary. In the meantime, I hope the religious sector will preach to their followers to be God-fearing and be trustworthy as well as humane and full humility. Honourable Chan, may the Good Lord Always Bless U….Pray for Malaysia and Malaysians…..maybe our only hope..never mind which 'God'…

  5. Alfred Charles

    The judiciary has become a mockery because it is prepared to interpret the Perak constitution to suit the powers that be. What happened to their oath "to protect and uphold" the constitution. The doctrine of separation of powers has been emasculated by the judiciary. What a shame!!! The Sultan of Perak having the powers to sack MB Nizar, so declares the CA is the 21st century joke. MB Nizar's losing his confidence because of three turncoats from PKR to BN has to tested at the floor of the Legislative Assembly.

  6. Ibrahim

    What many fail to realise is that a vote of no confidence in the legislative assembly is essential because we practise a system of parliamentary (in this case) legislative assembly) democracy where the elected representatives are elected to represent the constituents in a particular constituency. Where notice that a no-confidence vote is being proposed/tabled, it gives the voters an opportunity to give their views to their respective elected representatives, who, at least in theory, will then weigh and take into account, before voting for or against the motion. The people of Perak have been denied this very intrinsic yet fundamental right, as the Sultan has presupposed that each ADUN will vote according to party lines BEFORE they have had the opportunity to obtain the views of the rakyat they represent. THAT is why what has happened in Perak, is flawed.

  7. wira

    It is in the federal constitution that, except in the areas where discretionary powers are given to the King, the sovereign MUST act according to the advice of the Prime Minister.

    I believe the spirit of the state constitution would also encompass that.

    Hence clause 7

    "Subject to Clause (6) a member of the [Executive] Council other than the Menteri Besar shall hold office at His Royal Highness’ pleasure."

    does not really mean a member of the exco shall hold office at His RH pleasure. It means the advice of the MB must be adhered to in determining whether a member of the exco shall hold office or otherwise ie. the member could be removed according to the advice of the MB.

  8. r_venugopal

    We have read articles that gives crystal explanations why Nizar should be re-instated as the MB or to call for elections in Perak. What is stopping the wise ruler and the judiciary from making a good decision are they under some sort of pressure or there may be a revised version of the constituion which is in their possession. In the name of god let the ruler and judiciary decide what is good for the nation and people.

  9. Which state constitution are you referring, I am blurred la.

    Everything now days has gone to the dogs.

    Anyway, every dog will have its day.

    Wuff wuff wuff

  10. aca

    what clause?



    Lingam, I am with you. You are CORRECT.