Wednesday, February 10, 2010


By Ding Jo-Ann of the Nut Graph under Perak : Losing Confidence

IT is a cardinal rule in the game of musical chairs that once someone has occupied a seat, no one else can validly sit in it. The Federal Court however, appears to think otherwise in declaring the Barisan Nasional (BN)'s Datuk Seri Dr Zambry Abdul Kadir the rightful Perak Menteri Besar. This is despite the fact that ousted Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin, from Pakatan Rakyat, never resigned from office.

one judge razzing the other

The Federal Court ruled that the sultan could establish a loss of confidence in the menteri besar by referring to "extraneous sources" and therefore appoint a new menteri besar. In its 11 May 2009 decision, however, the High Court said that this could only be decided by a vote of no-confidence in the legislative assembly.

Party politics and even Perak aside, has the Federal Court's decision helped or hindered Malaysia's progress in becoming a more genuine democracy? Should the sultan or any other head of state have the power to decide when a menteri besar has lost the assembly's confidence? Or is a democratically-elected legislative assembly the proper forum for such issues to be settled?

"Extraneous sources"

Article 16(6) of the Perak Constitution states that if a menteri besar loses the majority's confidence in the state assembly, then he or she shall resign together with the executive council. This must happen unless the sultan dissolves the assembly at his or her request.

The Federal Court's unanimous decision was that Nizar had indeed lost the majority's confidence in the assembly. They cited several reasons for their conclusion:

1Nizar himself admitted this loss of confidence by requesting the sultan to dissolve the assembly under Article 16(6), and

2Thirty-one out of 59 Perak representatives had declared their support for the BN to the Sultan of Perak.

The court rejected Nizar's argument that he had invoked Article 36(2) instead of Article 16(6). Article 36(2) confers general powers on the sultan to dissolve the assembly without mentioning any prerequisites.

At any rate, the Federal Court ruled that regardless of which article Nizar invoked, it was clear that Nizar had lost the majority's support. This was because of the undisputed testimony of the 31 elected representatives to the Perak Sultan.

The sultan was therefore right in concluding that the assembly had lost confidence in Nizar and hence was also correct to direct Nizar to resign. Since Nizar failed to resign, to give effect to Article 16(6) which states that the menteri besar shall resign upon losing confidence, his seat was therefore deemed vacant and a new menteri besar appointed.

The Federal Court also affirmed the sultan's right to refuse to dissolve the assembly despite the menteri besar's request as this was within the ruler's absolute discretion.

Legislative assembly decides

High Court Judge Datuk Abdul Aziz Abdul Rahim, whom the Court of Appeal and the Federal Court overruled, took a different view.

He held that only a vote in the legislative assembly could determine the loss of the majority's confidence as described under Article 16(6). Although he firmly affirmed the sultan's constitutional role to appoint a menteri besar, Justice Aziz said the sultan's opinion was "irrelevant" when it came to ascertaining a loss of confidence amongst assembly members. His reasons were as follows:

1Nothing in Article 16(6) says the sultan is involved in ascertaining a loss of the majority's confidence in the assembly.

2Article 16(7) expressly states that the menteri besar does not hold office at the sultan's pleasure. The sultan therefore has no power to dismiss or direct a menteri besar to resign.

3Article 16(5) also states that the executive council, which the menteri besar heads, is collectively responsible to the legislative assembly.

Justice Aziz concluded that as the menteri besar was accountable to the assembly, and not to the sultan, it is only through the assembly that a loss of confidence can be determined.

This was in line with established precedents such as the Stephen Kalong Ningkan case in 1966. It was held by the Borneo High Court then that the Sarawak Governor had no jurisdiction to direct the chief minister to resign. This was despite the governor receiving a letter signed by a majority of the state assembly declaring their loss of confidence in the chief minister.

Deemed vacant?

Justice Aziz also ruled that even if it was established that the menteri besar had lost the majority's confidence, the constitution did not give the sultan any power to direct him to resign.

He acknowledged that there appeared to be a lacuna in the law as the constitution was silent on what would occur if the menteri besar refused to resign. Justice Aziz stressed that nonetheless, it would be wrong to therefore conclude that the seat would be deemed vacant, stating: "...the Court is not at liberty to stretch or pervert the language of the constitution for the purpose of supplying omission or of correcting supposed errors."

Any lacuna should be dealt with by proposing an amendment to the constitution which can be debated in the assembly and not by the courts reading their own corrections into it.

As no vote was taken in the assembly on Nizar, a loss of the majority's confidence was therefore not established. Nizar therefore did not need to resign according to Article 16(6). And since he had indeed not resigned, Nizar was still the menteri besar. And as there was nothing in the constitution that allowed for Perak to have two menteris besar at the same time, Zambry's appointment was therefore invalid.


Although the loss of the majority's confidence may seem like a simple mathematical sum which anyone can calculate, democratic structures and constitutions must be followed to ensure accountability and fairness. Malaysia has a constitutional monarchy and a ruler's prerogatives and discretions are strictly governed by the federal and state constitutions.

In the absence of any provision conferring power on the sultans, their opinions would be as legally relevant as any other Malaysian's in deciding state matters. Perak has a democratically elected state government, accountable to the people and subject to fresh elections every five years. Justice Aziz's conclusion that it was the assembly that should have determined the confidence issue, rather than the sultan, seems closer to democratic principles.


Although the Federal Court is the apex court in Malaysia, and can freely overrule the High Court, it still has to do so based on sound reasoning and in reference to established precedents. In affirming Zambry's position, the Federal Court has read extra meanings into Article 16(6) of the Perak constitution other than what a plain reading would produce. These extra meanings are that:

The sultan can conclude that a menteri besar has lost the majority's confidence through extraneous sources despite the constitution giving no role to the sultan on this matter; and

That the menteri besar's seat can be deemed vacant if he doesn't resign, even though the constitution is silent on this.

Whatever the merits of this recent decision, its weaknesses will certainly not help build public trust and confidence in the judiciary's already battered image. And that surely cannot bode well for democracy in Malaysia.

news courtesy of Nut Graph

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