Professor Dr. Andrew Harding, after the demise of the late Professor RH Hickling CMG QC, would (with Professor Dr. HP Lee) arguably share the honour of being the foremost jurists on the Malaysian Constitution. Among others, he is the author of “Public Duties and Public Law” (OUP, 1989), “Law, Government and the Constitution in Malaysia” (MLJ, 1996) and “Comparative Law in the 21st Century” (Kluwer, 2002), and co-editor of “Preventive Detention and Security Law: a Comparative Survey” (Nijhoff, 1993) and “Constitutional Landmarks in Malaysia: The First 50 Years 1957-2007” (LexisNexis, 2007). Formerly he was Professor of Law, Head of Department of Law and Chair of the Centre of South East Asia Studies at SOAS, University of London. He is now based in the University of Victoria, Canada.
In 1966 it was Sarawak, in 1985 it was Sabah, and in 2009 it is Perak. But the issue in these times of crisis in state governments has been essentially the same: how are the so-called “Westminster-type constitutional conventions” relating to the appointment and tenure of chief ministers, and written into both federal and state constitutions in Malaysia, supposed to operate?
Crucially, in the present and intensely litigated impasse:
1. are matters arising outside the legislature relevant in assessing whether a Menteri Besar (MB) still commands the confidence of a majority in the State Legislative Assembly; and
2. can the head of state appoint a new MB if he judges that the existing MB has lost that confidence and does not resign?
Abdul Aziz Abdul Rahim J in the High Court of Malaya sitting in Kuala Lumpur has ruled in Dato’ Seri Mohd Nizar Jamaluddin v Datuk Dr Zambry Abdul Kadir (11th May 2009) that under Perak’s Constitution a vote of no confidence must be passed in the assembly before an MB is obliged to resign.
According to this decision Nizar remained MB of Perak. The High Court’s decision was then overruled by the Court of Appeal on 22nd June May in a decision in favour of Zambry.
However, the grounds for the Court of Appeal’s decision have not yet been released and the case is on appeal by Nizar to the Federal Court.
The provisions which fell to be interpreted were as follows.
Article 16(2)(a), in the context of appointment of the Executive Council, states: “His Royal Highness shall first of all appoint as Menteri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of a majority of members of the Assembly …”.
Article 16(6) goes on to state: “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, then he shall tender the resignation of the Executive Council.”
The complex facts giving rise to the case were these. Nizar was appointed MB of Perak following the March 2008 elections as the Pakatan Rakyat coalition’s choice for this office.
In a 59-member assembly, Pakatan held 31 seats, while the BN held 28 seats.
In February 2009 three Pakatan members of the assembly (dubbed “the 3 ADUN” in the litigation) announced their resignations from the assembly, leaving the assembly apparently deadlocked at 28-28. Nizar approached His Royal Highness the Sultan of Perak as the Head of State (HRH) on 4th February 2009 for a dissolution of the assembly “to resolve the deadlock” in the assembly.
On the 5th, HRH refused the request, but previously to informing Nizar of his decision he had met with 31 members of the assembly at the Istana and satisfied himself that these 31 members supported Zambry as the MB. The 31 included the 3 ADUN, who had apparently meanwhile indicated that their resignations from the assembly were withdrawn and they had transferred their support to Zambry.
Accordingly HRH immediately following his refusal of a request for dissolution informed Nizar that he no longer commanded the confidence of a majority of the members of the assembly and asked for his resignation as MB.
This was not forthcoming, but later the same day the Office of HRH issued a press statement stating that the office of MB had fallen vacant and that Zambry had been appointed MB as he commanded the confidence of a majority of members of the assembly.
No motion of no confidence
It is common ground that there had not been any motion of no confidence in Nizar as MB, nor had there been any event in the assembly to indicate loss of confidence in him, for example defeat on an important bill; that at no point had or has Nizar resigned or been dismissed from the office of MB; and that Nizar has been prevented from acting as MB, for example by being evicted from his office.
Nizar asked the High Court on judicial review for orders having the effect of declaring him to be legally the MB of Perak. Nizar’s claim was that only the assembly had the power to decide that it had no confidence in him, and that there was no provision for the MB to be dismissed or for the office to fall vacant.
Zambry argued that the office of MB fell vacant when Nizar refused to resign and circumstances arising outside the assembly were relevant to the issue of confidence.
The ruling of the High Court
The learned Judge in the High Court decided that:
i) the issue raised was justiciable;
ii) HRH exercises his discretion and may resort to any means to satisfy himself and form his judgment as to who is likely to command the confidence of the majority of the assembly under Article 16(2)(a), but this is not true of Article 16(6) where there is no judgment to be exercised by him;
iii) similarly HRH exercises discretion in deciding whether to refuse a request for a dissolution of the assembly; but
iv) the MB does not hold office at the pleasure of HRH nor can he be dismissed by him;
v) the office of MB cannot be deemed to be vacated under Article 16(6);
vi) the MB is responsible to the assembly collectively with the Executive Council; and
vii) a MB cannot be appointed if there is already a MB who has not resigned and no vote of no confidence has been passed against him.
Accordingly he held that Nizar still held the office of MB, and relief was granted in the terms of his application.
What is “loss of confidence”?
On the question of whether account can be taken under “loss of confidence” provisions (such as Perak’s Article 16(6)) of matters arising outside the legislature, the court was faced with apparently conflicting decisions in Ningkan’s case (Sarawak, 1964) one the one hand, and on the other hand Amir Kahar (Sabah, 1995) and Adegbenro v Akintola (Western Nigeria, 1963).
The Judge made fairly short work of the case law on this point, regarding Article 16(6) as plain, obvious and unambiguous.
The Constitution, he said, must be given a “liberal interpretation and not be construed in a narrow or pedantic sense”; nonetheless “the court is not at liberty to stretch or pervert its language for the purpose of supplying omission or correcting supposed errors”.
Amir Kahar, he said, was correct on its facts but did not raise the issue in question as the Chief Minister of Sabah in that case had in fact resigned and the only issue was as to the effect of his resignation with regard to the rest of the Cabinet; accordingly the court’s views in that case on the issue of confidence were merely obiter dicta (incidental).
Further, in Ningkan, the court had correctly distinguished the Privy Council’s decision in Adegbenro, because both the facts and the applicable constitutional provisions were different.
He pointed out that the power in the Federal Constitution to remove the Prime Minister from office for lack of confidence had been originally indicated but did not finally appear in Article 43(3) of the Federal Constitution of 1957, whose provision in this respect is obliged by Schedule 8 to be replicated in all the state constitutions (in Perak this is Article 16(6)).
Clearly the issues at stake in this case are of huge importance, and it is reasonable for the public to be intensely interested in the outcome and also the process and the reasoning. At the same it is critically important that the matter is assessed not from a party political point of view, but as a matter of broader public interest.
From this point of view the Judge’s decision clearly has much merit. As he pointed out at the end his 78-page judgment “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 are given freedom to elect a government of their choice in a free election and with the elected government being made answerable to the elected legislature.”
Nonetheless it can be legitimately asked whether the position is tenable that, if the MB does not resign when there is lack of confidence in him, the MB cannot be dismissed and his office does not fall vacant. Surely, it can be argued, and indeed it was, that there must, finally, be a means of making the MB go in this situation, otherwise the Constitution would become inoperable?
Is it not consistent with parliamentary democracy, and also with constitutional monarchy, that ultimately the head of state has the power to dismiss him. Of course, however such a right may only be exercised when the situation have become totally untenable e.g. after a vote of no confidence which the MB nevertheless is obdurate in not resigning.
No power to dismiss
Interestingly enough, it was not part of Zambry’s case that HRH did have a power to dismiss; rather it was argued merely that the office fell vacant when Nizar refused to resign.
There are two other alternative views about Article 16(6).
One, as the Judge appears to hold, is that neither of these positions applies and it is simply up to the MB, after a no confidence vote against him, to resign; in the final analysis this presumably means that the remedy is purely political rather than legal.
Alternatively it could be argued that in a suitable case a suitable applicant (a member of the assembly or of the electorate?) could obtain a writ of mandamus from the court to compel the MB to resign.
But perhaps a better answer is that, important as this issue is, and much as it requires a definitive decision, it did not actually arise on the facts because there was simply no obligation on Nizar to resign in the absence of a no-confidence vote in the assembly.
The issues in this case
Let us then revisit the facts.
It is not made clear in the judgment but is clearly relevant, that at his audience with HRH on 4th February 2009, Nizar believed that the 3 ADUN had merely resigned their seats. In fact the three seats had been declared vacant by the Speaker who had notified the Election Commission accordingly.
It does not appear that HRH informed Nizar that this was not the case – that in fact the 3 ADUN had withdrawn their resignations and transferred their support to Zambry. According to Nizar’s understanding at the time HRH asked for his resignation, it was likely (but by no means certain) that he would have difficulty in maintaining a majority in the assembly; and equally likely too that Zambry would have the same difficulty.
Given this understanding (albeit a false one as it turned out) it seems clear that Nizar was justified in asking for a dissolution, because only by a motion of confidence or by an election could the situation be resolved.
Nizar had asked for a summoning of the assembly, but there had been no response from HRH; and his request for a dissolution was denied. It is of course usual in Westminster-type constitutions to judge a chief minister’s own assessment of his political viability by his willingness to test it on the floor of the legislature. There is indeed no reason to suppose that he should not have the right to do so. There was in this case no obstacle, such as a threat of violence, to prevent the assembly meeting. Clearly in a confused political environment the only definitive opinion is that of the assembly. Members have the right to express their views, consider whether they are persuaded by anything they hear in the debate which would follow a motion of no confidence, and finally to cast their vote on the motion. Anything else is surely a denial of democratic process. When politicians are apt to change their minds at will, how do we know which way they will vote in advance, whatever they state their position to be?
Legislature and not ruler who decides loss of confidence
Accordingly the issue seems to become, who was empowered to make the judgment as to whether the MB still had the confidence of a majority? The Judge gave a correct answer to this question by saying it is the legislature, not the head of state.
That the conditions in Article 16(6) are stated as facts rather than judgments powerfully indicates an interpretation that no judgment is involved, and that the MB ceasing to command the confidence of a majority is simply a matter for the assembly’s decision. Following the assembly’s decision the matter should of course be beyond doubt, but if lack of confidence was expressed in some other manner, for example by the failure of a money bill or other important measure, it would then be for the MB to consider his position on the basis of events in the assembly.
In short he must know he has lost the confidence of the majority before he is obliged to resign. Thus even on the view that the issue of confidence arises without the assembly expressing its view, there must be some latitude to the MB to assess his position. And surely this is all the more true if he is not even in possession of all the facts? Must he not have an opportunity to check the facts and consult with his colleagues to ascertain whether he has or has not lost the confidence of the majority?
But as the Judge also said, it is in any event clear that the head of state is not given the power under Article 16(6), as he is under Article 16(2)(a), to make a judgment as to matters of confidence.
We can conclude that public policy requires that the courts view these “constitutional conventions” in such a way as to implement the democratic principle by letting the people’s representatives decide transparently and after a debate. Any other view not only renders the legislature otiose, but also opens the door to further constitutional crises arising out of behind-doors deals and manipulation which could even engulf the federal government at some juncture as well as making a political football of Malaysia’s ancient monarchies.
Hopefully the Federal Court will consider these issues seriously.