I refer to the letter Perak crisis due to misinterpretation?
The writer of the letter and I must be reading different sets of The Laws of the Constitution of Perak. Article 16(6) that is before me reads as follow:
‘If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Highness dissolves the legislative assembly, he shall tender the resignation of the executive council’(emphasis missing in the letter writer’s quotation of the same article of the Perak state constitution).
If the above reading of Article 16(6) of the Perak constitution is correct, then:
1. There is no difference in wording between the Perak state constitution and the federal constitution pertaining to the loss of confidence in a menteri besar/prime minister;
2. There is also no difference in wording between the Perak state constitution and the Sabah state constitution [Article 7(1)] pertaining to the same matter.
Article 7(1) of the Sabah state constitution incidentally has been read, considered and interpreted in the case of Datuk Amir Kahar bin Tun Datu Haji Mustapha v Tun Mohd Said bin Keruak Yang di-Pertua Negeri Sabah & Ors [1995] 1 MLJ 169 (Datuk Amir Kahar’s case).
The Kota Kinabalu High Court, in that case, decided that a vote in the state legislative assembly (LA) is not the only means to determine the confidence of the members of the assembly in the chief minister and it depends on the circumstances. The court added that other extraneous matters may provide sufficient evidence to establish the fact that the chief minister has ceased to command the confidence of a majority of the members of the state assembly.
I am therefore more inclined to say that the Sultan of Perak, a former top judge himself, has been persuaded to be guided by the Amir Kahar case.
This can easily be explained by the fact that His Royal Highness went to the extent of not only meeting all the 31 assembly persons, but also took time to sit down with each of the three independent assembly persons to satisfy himself that all 3 of them no longer supported Mohammad Nizar Jamaluddin (MB Nizar) and, therefore, the Pakatan Rakyat (PR) government.
These were clearly the ‘extraneous matters’ that provided the evidence sufficient for His Royal Highness to establish the fact that Nizar had ceased to command the confidence of a majority of the members of the state assembly and therefore should tender his resignation in accordance with Article 16(6) of the Perak state constitution.
Having said this, I propose however to say that the decision of the Sultan of Perak, with the greatest of respect to His Royal Highness, has been reached, perhaps, without the benefit of ‘the other argument’ on the issue of how to determine the loss of confidence in the menteri besar.
I propose to say the following:
Amir Kahar’s case is a decision that distinguishes the earlier case of Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli [1966] 2 MLJ 1987 (Stephen Kalong Ningkan’s case) where the Kuching High Court decided that the Sarawak governor only had the power to dismiss the chief minister if the lack of confidence had been demonstrated by a vote in the Council Negri (ie state assembly).
According to the presiding judge in Amir Kahar’s case, Stephen Kalong Ningkan’s case was a decision based on its own facts and circumstances. Indeed so, every case must be decided based on its own facts and circumstances. The hard fact in Stephen Kalong Ningkan’s case was that the alleged loss of confidence was ‘highly suspect’.
The decision in Amir Kahar’s case has an important and much over-looked proviso, that is, the extraneous sources (to establish the loss of confidence) must be ‘properly established’ (see page 188 of the case report). This begs the questions whether the loss of confidence in Nizar had been properly established, because there have been reports:
- of disappearances and even kidnapping of assembly persons; and that
- of the PR government having filed an application in court to determine the status of the three independent assembly persons.
In short, the loss of confidence in Nizar can be regarded as ‘highly suspect’. In the circumstances, the better decision to follow is the Stephen Kalong Ningkan’s case, which in any case is still good law, having only been distinguished by a later court of equal status and not having been overruled.
It is therefore my take that a vote has to be taken in the assembly.
In any case, I have to agree with the views of many that the Sultan of Perak should have considered the request to dissolve the assembly, as tendered by Nizar.
The refusal to dissolve the assembly, although not illegal, might be conventionally unconstitutional. (See judgment of Harley Ag CJ in Stephen Kalong Ningkan’s case at page 194 of the case report).
