MatTop & Loyar Bagus, who said I won’t reply?

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.

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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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6 Responses to MatTop & Loyar Bagus, who said I won’t reply?

  1. NH Chan

    I would like to add this.

    Article 72(1) of the Federal Constitution clearly states:

    72. (1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

    But there is more. All of this about the three so-called independents would not have happened if not for the fatal mistake of Najib seeing the Sultan of Perak at the palace. If he had not gone to see the Ruler, there would not have been a Perak constitutional crisis which has today morphed into a fiasco. Without the debacle there would be no suspension of the three turncoats by the Speaker.

    Let me explain. If at the beginning Najib did not put his finger into it and leave it to the BN assemblymen in Perak to proceed on a motion of confidence against the incumbent MB in the Legislative Assembly in the normal way, there would have been a legitimate Barisan Nasional State Government in Perak today. At that time, Nizar’s government had no inkling that the three turncoats have moved over to the other side. The Barisan Nasional coalition would have achieved the takeover without any fiasco at all. However, that fatal error of judgment by Najib has resulted in bringing disgrace to some of our judges and it has also tarnished the image of the Ruler.

    So my answer is this. These people have only themselves to blame. They have asked for it. They have brought the disaster on themselves. They were hoisted by their own petard. The moral is to beware of Greeks bearing gifts – remember Helen of Troy and the Trojan Horse? The horse was left at the gates of Troy and, once the Greeks had departed, the people of Troy opened their gates to receive the apparently harmless gift. However, once the horse was inside the city, Greek soldiers inside the horse poured out and destroyed the city. Najib’s gift of strategy on the takeover bid had unleashed the involvement of the judiciary in some blatantly unjust decisions. The Perak BN should now realize that Najib’s advice and strategy on BN’s takeover bid of Perak have feet of clay. It is too late for them to cry over spilt milk. If only they had not accepted the strategy and suggestions of Najib in their bid to take over the state government of Perak, things might have been different today.

  2. NH Chan

    Dear Loyar Bagus,

    Here is my answer:

    I appreciate that this a hypothetical enquiry. So we have to assume that Nizar has gone to the Legislative Assembly for a vote on confidence and it has gone against him. This would have triggered the application of Article 16(6); in which case “he shall tender the resignation of the Executive Council”. If he does not, then the Ruler can sack the entire EXCO, but not the MB, under Clause (7).

    Nizar, who does not now have the confidence of the majority of the Legislative Assembly, is no longer MB – he has been effectively removed as MB by the Assembly. This opens the way for His Royal Highness to appoint a new MB as the seat is now left vacant by Nizar who had lost the confidence of majority in the Assembly. The Sultan has to go through the process of Article 16(1) and (2) again to appoint a MB to fill the seat which had been vacated by Nizar who had lost a vote of confidence in the legislature.

  3. Loyar Bagus

    Dear Mr Chan

    You are a gentleman and I thank you for taking the time to reply.

    Your answer reiterates your position in your Gobbledegook and Regurgitation essay. I have been hesitant in expressing a view on whether a motion in the Assembly is the only way of establishing a loss of confidence. The reason for this is that in extremis, this may lead to breakdown of the democratic process. For example, say out of 59 ADUNs, the numbers broke down as 28-28 with three independents. The independents support one side at the first sitting but after a few months, publicly announce their intention to switch their support. The Speaker immediately suspends the independents and certain ADUNs; this reduces the new "majority" to a minority, thereby protecting the incumbent Menteri Besar from a vote of no-confidence. I note that the validity of the Speaker's actions, as proceedings in the Legislative Assembly, are protected under the Federal Constitution from inquiry in the Courts. Would HRH still have no power under Art 16(6) because a motion of no confidence has not been passed, despite the fact that 31 ADUNs have publicly declared their lack of confidence in the incumbent Government which has abused the democratic process?

    However, the discussion which developed between me and Mat Top also pertained to the following points, namely if the MB had refused to resign even after losing a vote of no-confidence, whether HRH had the power to remove him. I am not sure whether you expressed a definite view on this but you seemed to agree with the Professor's comment that HRH has no such power. I believe that Art 16(6) and 16(7) do imply a clear power for HRH to remove a recalcitrant Menteri Besar.

    These points are theoretical, of course, and I acknowledge that this question does not arise for contention in your article because you believe that the Art 16(6) trigger is not present.

  4. If it doesn't smell pee-hew….!!!!

    Then what is…???????????????

  5. aca

    mei1,

    IRRELEVANT IRRELEVANT IRRELEVANT.

    Your Honour NH Chan, whats the smell in Putrajaya?

  6. mei1

    my one & only concern is: do they, the judges CLEAR on the explanations given above & before this or not? If yes, can we expect a FAIR & IMPARTIAL judgment soon??