I refer to the Malaysiakini report Was Nizar's removal constitutional?

The writer’s comment ‘Was Nizar’s removal constitutional’ supports my contentions, which I have expressed in my previous letter , that the loss of confidence in Nizar can be regarded as ‘highly suspect’.

It is my contention then that, on the authorities of both the Stephen Kalong Ningkan and Amir Kahar cases, a vote in the state legislative assembly has to be taken to determine whether the menteri besar has ceased to command the confidence of the majority of the members of the state legislative assembly.

Another argument in support of my contention can perhaps be found in section 94 of the Interpretation Acts 1948 and 1967 (Act 388, Consolidated and Revised 1989). The section reads as follow:

‘Where a written law confers upon any person or authority a power to make appointments to any office or place, the power shall, unless the contrary intention appears, be construed as including a power to dismiss or suspend any person appointed and to appoint another person temporarily in the place of any person so suspended or in place of any sick or absent holder of such office or place:

‘Provided that where the power of such person or authority to make such appointment is only exercisable upon the recommendation or subject to the approval or consent of some other person or authority, such power of dismissal shall, unless the contrary intention appears, only be exercisable upon the recommendation or subject to the approval or consent of such other person or authority.’

The general effect of the section is that where there is a power to appoint, there is power to dismiss. However, where the appointment is ‘subject to the approval…of some other person or authority’, then the ‘power of dismissal shall…only be exercisable…subject to the approval…of such other person or authority’.

This is the effect which was referred to approvingly by the Kuching High Court in Stephen Kalong Ningkan’s case where the court held that if the appointment of a chief minister is subject to the approval of the legislative assembly, then the dismissal also would be subject to its approval.

The court further held that the legislative assembly should manage its own affairs. The presiding judge, Harley AG (CJ Borneo) said:

‘A governor is limited by…the constitution to appointing as chief minister a member of the [legislative assembly] who in his judgment is likely to command its confidence (and approval): thereafter it follows … that only when [the legislative assembly] has shown lack of confidence (and lack of approval), can the governor’s power to dismiss, if it exists, be exercised.’

Earlier in his judgment, in holding that by the provisions of the Sarawak constitution the lack of confidence in the chief minister may be demonstrated only by a vote in the legislative assembly, the learned acting chief justice said:

‘Men who put their names to a ‘Top Secret’ letter may well hesitate to vote publicly in support of their private views.’

This may well be true of the three independents whom His Royal Highness the Sultan of Perak met on Feb 5.