Absolute or constitutional monarchy?

Court Observer says:

Having just digested the 78-page judgment of High Court judge Datuk Abdul Aziz Abdul Rahim on who is the rightful MB of Perak, I conclude it is a well-reasoned decision.

The judge holds the view that only a vote of no confidence on the floor of the house (state legislative assembly or Dewan Rakyat) is required to remove the Prime Minister or the Menteri Besar/Chief Minister.

Abdul Aziz’s ruling reaffirms the widely acclaimed constitutional position that the chief executive of a state does not hold office at the pleasure of the ruler. Once appointed to the office, the MB of Perak, in this case, Dato’ Seri Mohammad Nizar Jamaluddin and his executive councillors are responsible to the state assembly. Ideally, if a vote of no confidence was taken against Nizar, then he and the councillors would have to tender their resignations.

The judge in ruling that Nizar was still the rightful MB found support in the celebrated case of Stephen Kalong Ningkan -v- Tun Abang Openg and Tawi Sli [1966] 2 MLJ 187. The case stated the principle that the vote of no confidence against the chief executive must be taken in the house, not outside and the appointing authority could not dismiss him.

However, the judge concedes that there is a loophole in the Federal Constitution and the State Constitution if the head of government who lost the confidence vote refuses to tender his resignation. Aziz said:

That lacuna cannot be filled up by reading into the Article a deeming provision. That lacuna must be filled up by amendment to the said Article.

As it stands, such an amendment to the Federal Constitution could not be done as the ruling Barisan Nasional does not have the two-thirds majority in the Dewan Rakyat.

By the way, the Attorney-General Tan Sri Abdul Gani Patail who acted as intervener and Datuk Cecil Abraham who represented Zambry, relied heavily on the case of Datuk (Datu) Amir Kahar Tun bin Datu Haji Mustapha -v- Tun Mohd Said Keruak & Ors [1995] 4 CLJ 184. They argued that the office of MB is deemed vacant when Nizar refused to resign.

Aziz flatly disagreed with them and went on to say that a deeming provision is a “legal fiction” as it refers to something which does not exist but to be taken as in existence. In fact, the judge said the Amir Kahar case did not support the A-G’s contention. [In that case, the then Chief Minister Datuk Seri Joseph Pairin Kitingan of the ruling PBS lost the majority to the BN due to defections. Pairin had sought the Governor’s consent to dissolve the house but was denied. He then tendered his resignation. Amir Kahar, a member of Pairin’s Cabinet brought an action that he was still a minister because only the chief minister had resigned. The Court held that when the chief minister resigns, the Cabinet resigns with it; whether or not there was a letter of resignation.]

In the present case, Nizar did not resign and a no confidence vote was not taken against him.

Aziz’s decision, to my mind, is well within the framework of our Constitutions – that the King is above politics and the ruler acts on the advice of his chief executive.

Pausing for a moment, what would happen if judgment was given in favour of Zambry at the High Court? It would be like this:

1. Our constitutional monarchy would seem to be heading towards an “absolute monarchy”, and the Prime Minister, MB or Chief Minister would then be holding their positions at the pleasure of the rulers/governors despite clear words to the contrary in the Constitutions.

2. Imagine – had Datuk Seri Anwar Ibrahim got 30 or more federal legislators crossing over to Pakatan Rakyat and the King agreed in appointing Anwar without a vote in Parliament – Anwar would be Prime Minister!


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Posted on 19 May 2009. You can follow any responses to this entry through the RSS 2.0.

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4 Responses to Absolute or constitutional monarchy?

  1. This judgement by Justice Datuk Abdul Aziz is long overdue to put back some integrity and dignity to our courts. It is a pity, "ONE SWALLOW DOES NOT MAKE A SUMMER"….only 24 hours later, the joy was shortlived!

    Once again, we have to painfully witnessed another dickhead judge, who has no sense of human decency sitting on the bench in the appeal court to bring the situation back to square one!

  2. Alfred Charles

    This is a great judgment by Justice Datuk Abdul Aziz Abdul Rahim and it is judges like him who will bring the integrity and independence of the judiciary to its heights. The function of a judge is to uphold and interpret the constitution.

    The law has been made very clear that the Ruler of a state cannot sack the MB of Perak and Zambry is certainly the usurper MB, and that is a shame. The Perak Ruler is a constitutional monarch who does not have the power to sack YB Nizar. The Ruler has misused his powers which is an illegality.

    As usual the AG as the intervener in this case has displayed his utter ignorance of the law and once again has displayed to the general public he is an incompetent AG.

  3. non-observer

    Firstly, the AG intervenes in the suit to support and to argue for the illegal Zambery. He had been doing this in all the Perak's cases and has the temerity to say that he intervenes in the public interest. Zambery's lawyers just adopt his submissions.

    I don't agree with the Judge's decision on two points only, namely that the Sultan could dismiss his Exco members. I say the Sultan can only dismiss his Exco members on the advice of his MB and not at his whims and fancies, although they holds office at the Ruler's pleasure.

    My reason is based on Art.132(2A) of Fed Consti which says that, ' all public service officers hold office during the pleasure of the YDPA'. Notwitstanding that clause, the YDPA simply can't dismiss any officer without just cause and lawful excuse.

    Secondly on the discretionary powers of the Sultan to appoint an MB and to withold consent to dissolution of the Leg Assy. I say all discretionary powers are justiciable. All disceretionary powers to make decisions and which are derived from statutes must be exercised lawfully, reasonably and in accordance with the law. You can't make decision at your whims and fancies.

  4. This piece would be much more effective if "Court Observer" would do us the courtesy of introducing him or herself.