Is it possible that a slight difference in wording between the state constitution of Perak and the federal constitution pertaining to the loss of confidence in a mentri besar/prime minister has misled the Sultan of Perak into thinking that the constitutional requirement necessitating the menteri besar to resign has been fulfilled?

Judging from the sultan’s statement explaining his decision to appoint a new menteri besar, that seems to be the case. Let me quote the relevant paragraph of the sultan’s statement explaining why Mentri Besar Nizar Jamaluddin must step down:

‘After meeting all the 31 assembly persons, DYMM Paduka Seri Sultan of Perak was convinced that YAB Datuk Seri Mohammad Nizar Jamaluddin had ceased to command the confidence of the majority of the state assembly members’.

This statement would have been a correct interpretation of the federal constitution if applied to the prime minister, but an incorrect interpretation, if applied to the menteri besar.

This is because the loss of confidence of the majority is prescribed differently in the federal constitution and the state constitution.

Under the federal constitution, the loss of confidence refers to ‘members of the House of Representatives’ whereas under the state constitution, it refers to ‘the Legislative Assembly’.

This means that while the ascertainment of loss confidence can conducted outside Parliament (such as a collective appearance before the King) in the federal case, it cannot be repeated in the state case.

In the state case, the loss of confidence must be ascertained within the state assembly, meaning through a vote of no confidence in the state assembly.

The reason why I said the sultan could have been misled is that in his statement extracted above, he mentioned ‘...the confidence of the majority of the state assembly members’. Notice the statement refers to ‘state assembly members’ and not to ‘state assembly’.

Under the circumstances, Nizar was right when he said that he was legally obliged to step down only when a motion of no confidence on him has been passed in the state assembly, but not otherwise.

And since Nizar has not resigned as menteri besar, any appointment of another menteri besar will be ultra vires the state constitution.

Perhaps His Royal Highness can spare a few minutes to take another look at the two constitutions, so as to avert a major constitutional crisis?

The relevant extracts from the two constitutions are as follows:

Federal constitution [Article 43 (4)]: ‘If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.’

Perak state constitution [Artikel XVI(6)]: ‘If the Menteri Besar ceases to command the confidence of the majority of the Legislative Assembly, then unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council’.