MB v MB Appeal: 3 Questions for the FCT

Date: July 9, 2009

Coram: Alauddin Sheriff, Arifin Zakaria, Zulkefli Makinudin FCJJ

Questions to be decided at the appeal:

1. Whether, under Article XVI(6) of the Laws of the Constitution of Perak, and in the circumstances that:

i. the Menteri Besar of Perak wishes, and has advised for the dissolution of the Perak State Legislative Assembly; and

ii. there was no dissolution of the Perak State Legislative Assembly; and

iii. there was no motion of no confidence taken in and adopted by the Perak State Legislative Assembly against the Menteri Besar of Perak; and

iv. there was no resignation by the Menteri Besar of Perak;

the post of the Menteri Besar of Perak may be and/or has been vacated.

2. Whether, under Article XVI(6) of the Laws of the Constitution of Perak, the determination of the issue of confidence in the Menteri Besar of Perak has to be made by members of the Perak State Legislative Assembly in an Assembly meeting on a vote of no confidence, or by means other than by a vote of no confidence in the Perak State Legislative Assembly as to whether the Menteri Besar commands the confidence of the majority of the members of the Perak State Legislative Assembly.

3. If the Menteri Besar refuses to tender the resignation of the Executive Council, whether, under the Laws of the Constitution of Perak, a Menteri Besar may be dismissed from office or the Menteri Besar’s post be deemed vacant or vacated?


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Life's a sufferance. Lawyering a bore. As Edmund continues various escape techniques to be rid of Lord Bobo’s influence, he crusades with UndiMsia! movers to build strange youth love movements around the country. And so he tweets @edmundbon and practises the black magic art of advocacy at www.BONadvocates.com

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16 Responses to MB v MB Appeal: 3 Questions for the FCT

  1. Pingback: Suara Keadilan Online : English Edition » MB vs MB Appeal: 3 answers to the 3 questions Nizar posed

  2. Pingback: Loyarburok

  3. Lawyer Lua

    The EXCO dismissed themselves.

    There is an analogy.When a member of Parliament becomes a bankrupt; he becomes disqualified for membership of Parliament; and his seat shall become vacant.

    So, when the MB has refused to tender the resignation of the EXCO, the MB has disobeyed the Majority; and therefore the MB together with other members of the EXCO become disqualified for membership of the EXCO; and therefore their seats shall become vacant.

    By refusing to obey the order of the Majority, the MB and other members of the EXCO have dismissed themselves.

    But the Majority must first make public their state of mind in the State Assembly.

    When the Doctor pronounces that the Patient is dead, the Doctor is not the cause of the Patient' death.

  4. Loyar Bagus

    Eric,

    Do you honestly think the Speaker should be allowed to do whatever he wants in the Assembly? Was that what our Founding Fathers had in mind when they drafted Art 72(1) of the Federal Constitution? I never suggested that HRH has the power to sack him, but there must be some limit to what he is entitled to do.

    And where have I argued for an extension of the range of Article 16, short of saying that it contains a clear implied power that HRH may sack a recalcitrant MB if he refuses to resign as required by Clause (6)? I have not voiced any view on the other major area of dispute, namely whether the motion of no confidence is required under Clause (6), but in my post above, I am simply pointing out that it may not always be that simple where Mr Speaker is allowed to suspend ADUNs willy-nilly without any judicial review. Of course, those circumstances may not exist here but I was highlighting the difficulties behind the theory.

    And as for the political bit, I really don't want to get involved in a mudslinging match. I have not said a word in defence or criticism of the Government, Mr Zambry or Mr Nizar. But you have just accused the Government of being a completely corrupt, biased, evil and dictatorial body. And it also doesn't help when you are shouting "1 Black Malaysia" (it's really not a very good name for a campaign, is it?) at the end of every post.

  5. Eric

    @loyar bagus

    "I am not rising to that bait as I am keeping my comments apolitical."

    I fail to see which part of my comment is political and not merely factual. Would you care to explain?

    How does this work exactly? The Speaker's decisions should be restricted, as did the federal court on article 72, and the Sultan (MB's dismissal) can use selective parts of the doctrine, he does not have to justify his refusal for dissolution (exceptional in the Commonwealth) but can extend the range of article 16. You seem to be drawing a fine line happily modifying the constitution.

    1 Black Malaysia. Democracy First. Elections Now.

  6. Loyar Bagus

    Lawyer Lua,

    Yes, that is why we are at the Federal Court, and that is what the Court is going to rule on.

  7. Lawyer Lua

    Loyar Bagus,

    When we have a dispute,only a Common Judge can settle it.In this case where else can the Majority go, if not the COURT?

  8. Loyar Bagus

    Lawyer Lua,

    My post above asked whether the reduced Legislative Assembly had the power to depose Zambry and whether HRH had to accept this "motion" after the Assembly had been reduced to a Rump by the Speaker.

    The dispute is whether the Clause (6) trigger, namely the finding of no confidence in Nizar, is present. HRH says yes, Nizar says no. Nizar asks for a dissolution, HRH refuses. Nizar refuses to resign. HRH dismisses him and puts Zambry in his place.

    I never disputed that the Menteri Besar was a member of the Exco that had to resign (see my posts elsewhere), but I said IF he refused (as Nizar did because he thought the Clause (6) trigger was not present), then as Clause (7) was subject to Clause (6), I believe HRH has the power to dismiss the Menteri Besar. The reason is where the Cl(6) trigger exists, the Menteri Besar DOES hold office at HRH's pleasure.

    Jungleboy,

    Judicial systems in countries across the English-speaking world have been able to work with implied doctrines from the text of the Constitution, e.g. Australia under the Mason Court in the 1990s. In this case, if the Constitution is unfair (and you don't seem to disagree with my observations) or appears to be unworkable in a particular situation on its plain text, I cannot see why a Court may not imply a power or authority for HRH FROM THE TEXT to ensure the process remains workable. This is a fundamental question of the integrity and interaction of our public structures; nothing could be more important than this and implied powers have been found to exist in much lesser situations.

    Eric,

    I am not rising to that bait as I am keeping my comments apolitical.

    *I have not used names here because I am not suggesting in fact or at law that Nizar or Sivakumar is recalcitrant or abusing their power, merely theorising.

  9. Eric

    @loyar bagus

    why stop at the Speaker? What happens when the postal votes (a significant % of the voting population) are not free but supervised? What happens when the Election Commission, the civil service, the police and the AG are one-sided? What happens when election periods are not set in stone and decided by the party in place?

    In one sentence, what happens when one side distorts the whole political machine to its advantage through massive abuse of the trust they received from citizens?

    1 Black Malaysia. Democracy First. Elections Now.

  10. Lawyer Lua

    Article 16(6) wants the resignation of the Executive Council("Article 16(6) EXCO").Article 16(6) EXCO is a class.But,where is the MB? Is the MB inside or outside this class?

    The MB is inside Article 16(6) EXCO.

    So, when the MB tenders the resignation of Article 16(6) EXCO, that includes the MB himself. There is no need for the MB to resign again.

    Similarly, when the Court rules that Article 16(6) EXCO is deemed to have resigned, everyone is gone, including the MB. There is no necessity to separately dismiss the MB.

    You can not dismiss an MB that does not exist.

    But the Majority must first make public their state of mind in the State Assembly.

  11. jungleboy

    As for now, the constitution is very clear word for word. If it is unfair or outdated, amend the constitution.

  12. Loyar Bagus

    This is where it gets really messy.

    Other posters on this site have mentioned that the only way to establish the loss of confidence in the Menteri Besar and his Exco is through a vote of no confidence in the Legislative Assembly.

    I have not expressed a view on this for the following reason – what happens if the Speaker acts in abuse of powers (as arguably happened when Mr Sivakumar banned Mr Zambry and his Exco from the Assembly)? If we accept that there is a limit on the powers of the Speaker (which we must, otherwise he would be more powerful than the Menteri Besar or HRH!), he can therefore be found to be acting ultra vires or in abuse of his powers.

    However, Article 72(1) of the Federal Constitution states that "The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any Court". What happens then? If the Speaker suspends enough members of the majority and reduces them to a minority (as Mr Sivakumar did), then what is the point of the vote of no confidence? In short, the Speaker, accountable to no one but the Legislative Assembly which he has reduced to a Rump Parliament in any event, has "rigged" the vote of no confidence.

    What happens then if the erstwhile "majority" sought an audience with HRH and said that they still had confidence in the suspended "Menteri Besar"? Against this evidence, could HRH accept under Clause (6) that the suspended

    "Menteri Besar" had lost the confidence of the much-reduced Legislative Assembly? What of the Speaker and his deeds? Is there a scope for the use of reserve powers in this instance?

    I cannot help but feel that if Mr Anwar had engineered a similar coup in Federal Parliament, many people would not be arguing for a dissolution of Parliament so the "voice of the people" could be heard.

  13. mei1

    kinda agree with u, 'resident.wangsamaju' that few articles were posted on this blog in one day, it's a record breaking i guess….

  14. I understand that being a lawyer is stressful.

  15. Excuse me, is this comedy court.

  16. This blog is crazy!!!!!! Haha.