©The Malaysian Insider (Used by permission)
by Malik Imtiaz Sarwar
FEB 6 — Now that the dust is settling, it is becoming clearer what it is that took place in Perak over the last 24 hours. My respectful view is that His Highness may have acted erroneously in directing the resignation of the menteri besar.
As always, it will be useful to consider the objective facts. They are as follows:
• excluding the three disputed memberships, both the Pakatan Rakyat and the Barisan Nasional each hold influence over 28 members
• 28 members have indicated in private to His Highness that they no longer have confidence in the incumbent menteri besar. With the two disputed memberships, this number increases to 31
Crucially, the directive was made in accordance with Article 16(6) of the Perak Constitution. This article provides that where a request for dissolution is made as a consequence of the menteri besar ceasing to command the confidence of the majority of the members of the assembly and His Highness refuses, the incumbent menteri besar must tender the resignation of the Executive Council.
From the above, it is apparent that His Highness considered the situation to be one in which the menteri besar had ceased to command the confidence of the majority of the members. In doing so, His Highness accepted the three disputed members as still being members of the assembly and as such approached the situation on the assumption that the Barisan block outnumbered Pakatan by three instead of one.
It must be borne in mind that:
• as noted above, Article 16(6) is specifically directed to a no–confidence scenario, that is the incumbent menteri besar can seek the dissolution of the assembly upon his having ceased to command the confidence of the majority
• Article 36(2) however provides more generally that His Highness has the power to dissolve the assembly. It is clear that this provision is aimed at allowing His Highness to dissolve the assembly for other reasons thought to be appropriate
• as a matter of law His Highness is empowered to do what is permitted under the Perak Constitution and the Federal Constitution. This is the essence of a constitutional monarchy
• the Perak Constitution does not empower His Highness to dismiss the menteri besar. The manner in which the menteri besar is to be removed from office is as provided for under Article 16(6), through a refusal to dissolve the assembly at the request of the menteri besar when the menteri besar has ceased to command the confidence of the majority of the assembly.
It is apparent that His Highness had moved on the assumption that the request for dissolution was prompted by the menteri besar having ceased to command the confidence of the majority. This may have been based on a misapprehension of the situation and the appeal to the Sultan to dissolve the assembly for reasons other than confidence. If so, then the directive to resign was arguably not tenable.
However, it could be said that all things considered His Highness had come to the conclusion that in any event the menteri besar no longer commanded confidence. In this context, the central question is whether His Highness was empowered to conclude that the incumbent menteri besar no longer commanded the confidence of the assembly without there having been a vote of no confidence.
There is precedent. The Federal Court had in 1966 (Stephen Kalong Ningkan) determined that a similar provision of the Sarawak Constitution required there to be a vote of no confidence taken in the assembly before the chief minister was obliged to resign. The decision was based on several key factors that I believe to be relevant to this discussion. These were:
• the Sarawak Constitution did not empower the Governor to dismiss a chief minister
• the phrase “confidence of the majority” was a term of art and could be read as implying the need for a vote of confidence or a vote on a major issue. The court took into consideration the fact that the Sarawak Council Negri should, in principle, manage its own affairs
• no vote had been taken in the Council Negri and instead the Governor had come to his conclusion based on extraneous matters, particularly confidential letters. The court observed that members expressing a view outside the Council Negri might very well take a different position in it when under the scrutiny of the public. This was of particular significance as out of the 42 members of the Council Negri only 21 had indicated their not supporting the incumbent chief minister.
It could therefore be credibly argued that the Perak Constitution requires the tabling of a vote of confidence in the circumstances. The factors considered by the Federal Court have great significance to the scenario at hand, one as ambiguous as that which the Federal Court was faced with in 1966.
Much will now depend on what the incumbent menteri besar does. In Stephen Kalong Ningkan, the chief minister concerned took it to court and won. The Federal Court declared the Governor as having acted unconstitutionally and the dismissal of the chief minister invalid. Mohamad Nizar could attempt the same course.
It would be regrettable if the situation were forced to escalate to that level. Litigation of that nature, any nature for that matter, will be disruptive at all levels. With the Barisan Nasional moving in already, it seems that there is little choice in the matter. Walking away is simply not an option that the Constitution and the people and democracy will allow for.
In the meanwhile, we will have to buckle in for what has become a full–blown constitutional crisis.
Malik Imtiaz Sarwar is the president of the National Human Rights Society (HAKAM) and a lawyer.