Sorry I forgot to reply to your addendum.

I have no problem or disagreement with your views at all. Like I said before, it is really a dispute of whether we have a Clause (6) trigger, namely the loss of confidence.

My comments were prefaced with, and I quote myself: “IF…the Menteri Besar has refused to resign…” So I do not see where you are coming from.

You will see from the current facts that Nizar did not resign once his request for a dissolution was refused. See my first post – I argued FOR the fact the Menteri Besar was part of the Exco and had to resign along with the Exco. If he fails to do so, HRH was empowered to remove him under Cl(6) and declare Zambry as the new Menteri Besar.

Loyar bagus, I said a vote of no confidence is tantamount to the Leg Assy sacking the Exco which includes the MB. This is the essence of constitutional parliamentary democracy.

In a parliamentary democracy, the populace elected its representative to represent them and to govern the State. The representatives who are members of the Leg Assy amongst themselves elected the MB and members of the executive organ of the government ie the Exco. It must be a person who enjoys the confidence of the majority. This Exco by virtue of Art.16(5) if I am not mistaken is collectively responsible to the Leg Assy themselves and indirectly responsible to the populace/voters. since the voters have their own elected Assy’man.

The Exco is not responsible to the Sultan and any Exco member can only be dismissed by the Sultan on the advice of the MB.

If the populace/voters doesn’t like this executive organ for underperformance, they have every right to sack them and replace by a new Exco. This they do by asking their elected reps in the Leg Assy to pass a vote of no confidence. Therefore a vote of no confidence is tantamount to the Leg Assy which represents the people sacking the Exco and replacing with a new one.

But the Consti gives the MB one weapon. On being ’sacked’ by the Leg Assy, he has the right to approach the Sultan to dissolve the Leg Assy. The clause in Art 16(6) namely, ” shall tender the resignation of the Exco’ can be said to be couched in diplomatic language as a face saving measure to the ’sacked’ Exco. For all intent and purpose, the passing of a vote of no confidence by the Leg Assy is tantamount to the Exco being sacked already. As a face saving measure, the Consti expect him and the Consti requires him to resign failing which he is deemed sacked by the Leg Assy.

Sultan? Where got power. He just waits for the Leg Assy to make a decision whether to sack the MB or not by passing a vote of no confidence. This is my take on Art. 16 which is in accord with constitutional convention and practices of a parliamentary democracy.

Both you and Judge NH Chan are correct lah.

Firstly, the Perak Consti does not give explicit power to Sultan to dismiss an MB. Secondly if Art.16(6) had been fully and constitutionally complied with, namely, the Leg Assy has passed a vote of no confidence against the MB, then the MB shall tender the resignation of the Exco if a request for dissolution is rejected. If the MB fails to do so when there is a mandatory duty on him to resign under the said Article, then I would think that it is within the constitutional right of the Sultan to invite another Leg member whom in his judgement has confidence of the majority to become the next MB.

In the Perak case, I am sure Nizar would gladly tender his resignation if there is a vote of confidence against him by the Leg Assy. And if he refuses to do so which is very unlikely then and only then could R. Azlan Shah invite Zambery to become MB and form the next Exco.

A vote of no confidence against the MB by the Leg Assy is tantamount to an act of sacking the MB and his Exco members. Only the Leg Assy and not the Sultan could do that. That is the only way civil and constitutional governments had conducted their business when it comes to sacking its PM/MB. Sultan being a constitutional monarch should be above political affray.

I think you could establish a finishing school for prospective Judges prior to their sitting on the bench. Just like lawyers undergoing Pupillage prior to admission as an Advocate & Solicitor to the High Court of Malaysia. That means there must be a Master assigned to a junior Judge for a period of 12 months and subject to the satisfaction of the Master to approve the junior judge going onto the bench for his/her 1st sitting.

What do you think, Honourable Mr.NH Chan?

Regards,
Janetlee

I am afraid that you may have missed my point. I am taking issue with Mr Chan’s point that “the Sultan has no explicit power to dismiss an MB under the Perak Constitution,” even where Nizar refused to resign. I believe that HRH does have such a power under Cll.(6) and (7).

If the Menteri Besar has refused to resign where the Clause (6) triggers are present, I believe HRH must have the right to remove the Menteri Besar. Mr Chan does not agree with this.

While Mr Chan and the High Court agree with HRH’s 1992 comments that the role of the Ruler when faced with a dissolution request is “purely formal”, on my reading, the language of Clause (6) envisages that HRH MAY refuse the Menteri Besar’s request for dissolution and force the resignation of the Executive Council. HRH is then free to nominate Zambry as Menetri Besar under Clause (2)(a), with the Legislative Assembly remaining intact.

I would also add that the Head of State in Commonwealth countries often retains “reserve powers” to handle such situations where a member of the Executive is acting unconstitutionally. The scope and discretion to exercise such powers are obviously arguable, but I cannot see why HRH and the State should be held hostage to the whims of a Menteri Besar who refuses to play by the rules (as in the Kelantan situation).

You and Lawyer Lua may well be on solid ground when saying that HRH was not entitled to determine the loss of confidence through interviews at the Palace, but I did not express any views in that respect so do not disagree with you.