Thank you for all your comments and feedback to my posts. I have been following the threads closely, and in response to the specific query by Loyar Bagus here, this is my response.
Clause (1) of Article 16 reads:
(1) His Royal Highness shall appoint an Executive Council.
But how does the Ruler do it? For that we have to look at Clause (2). It says:
(2) The Executive Council shall be appointed as follows, that is to say-
(a) His Royal Highness shall first 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 the majority of the members of the Assembly; and
(b) He shall on the advice of the Menteri Besar appoint … other members from among the members of the Legislative Assembly;
(the emphasis is mine)
As you will observe from Clause (2), the Ruler finds his candidates for the Executive Council from members of the Legislative Assembly.
But paragraph (a) only states that the Ruler appoints as Menteri Besar an assemblyman who in the Ruler’s judgment is likely to command the confidence of the majority of assemblymen.
As for the appointment of the other Executive Councillors, paragraph (b) states that the Ruler appoints them from among the assemblymen on the advice of the Menteri Besar.
And Clause (7) says that:
(7) Subject to Clause (6), a member of the Executive Council other than the Menteri Besar shall hold office at His Royal Highness’ pleasure, but any member of the Council may at any time resign his office.
(the emphasis is mine)
According to Clause (7), other members of the Executive Council hold office at the pleasure of the Ruler. But not so the Menteri Besar. The phrase “other than the Menteri Besar” speaks for itself.
Finally, Clause (6) of Article 16 should not be used to explain Clause (7) as it is a non sequitur (it is a Latin word which is found in the Oxford Dictionary). I have already explained in my essay “Gobbledegook and regurgitation galore in the 2 written judgments of the Court of Appeal in Zambry v Nizar” that the conjunction “if” means “on condition that”. Instead of “if”, you can also read: on condition that “the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then,” he can request the Ruler to dissolve the Assembly.
Put in another way, it is only after the loss of confidence of a Menteri Besar in the Legislative Assembly had been established only then could the Menteri Besar make his request to the Ruler to dissolve the Assembly.
Obviously, the only way to establish that Nizar had lost the confidence of the majority in the legislature is to ask the members of the Assembly themselves. It would be incorrect to ask Nizar about his loss of confidence in the legislature because he could only guess at his own popularity. Undoubtedly, you must never ask the Ruler to determine the loss of confidence of a Menteri Besar in the Legislative Assembly as he has no power to determine on the status of the Menteri Besar’s popularity in the Assembly. And if the Court of Appeal was to confer such power on the Ruler, then it is a blatant refusal of the court to administer justice according to the Laws of the Constitution of Perak.
Since it has not yet been established that Nizar has lost the confidence of the majority in the legislature, the application of Clause (6) of Article 16 does not arise. Therefore, there is no need for Nizar to tender the resignation of the Executive Council under Clause (6).
I think MatTop is basically correct.
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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