The Loss of Confidence: Who Decides?

Introduction

Last week, I wrote an online comment on the nature and ambit of the Sultan of Perak’s powers (see www.loyarburok.com here), basing my thoughts on the High Court decision in that case. Shortly afterwards, two of the three Court of Appeal judgments – those of Dato’ Raus Sharif and Dato’ Ahmad Maarop JJCA – were issued. As I write this, the third judgment has yet to be released.

By now, the events leading to the constitutional crisis in Perak are well known. A defection of three Pakatan Rakyat (PR) assemblymen led Dato’ Nizar Jamaludin (Nizar), the PR Menteri Besar (MB) to request the Sultan (HRH) to dissolve the Legislative Assembly (LA), so that the numeric deadlock in the LA between supporters of PR and the Barisan Nasional (BN) could be resolved. Nizar’s request was refused and HRH proceeded to appoint Dato’ Zambry Abdul Kadir the new MB for the state. Nizar applied to the High Court for a declaration that he remained MB of Perak and on 11 May 2009, the Kuala Lumpur High Court held that since there had been no vote of confidence on the floor of the LA, Nizar remained the rightful MB of Perak and Zambry appealed.

Dissolution of the Legislative Assembly: Two Regimes

Raus JCA agreed with the High Court Judge, Abdul Aziz J, that there were two regimes under which a request for the dissolution of the LA could take place – a general request to dissolve under Article XXXVI(2) and a specific request under Article XVI(6) which reads:

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 Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.

Even though Abdul Aziz J and the judges in the Court of Appeal felt that Article XVI(6) is clear and unambiguous, they arrived at diametrically opposed readings of this key provision.

Articles XVI(6) and XXXVI(2): A Plausible Reading

Article XVI comes under the heading “The Executive Council” and the relevant provision is the 6th of its 8 sub-clauses. Though headings, sub-headings and marginal notes do not technically form part of the constitutional text, they help us understand the structure and organisation of the Constitution. Article XVI is clearly intended to deal specifically with matters relating to the Executive Council and not generalities.

A general request to dissolve the LA and the Sultan’s discretion thereof is governed by Article XXXVI(2) read with Article XVIII(2)(b). That means that HRH has a general power to dissolve the LA and may act in his discretion in withholding a request for dissolution. This general request for dissolution does not fall under Article XVI(6) which must be read sequentially: A MB who has already ceased to command the confidence of the majority of the members of the Legislative Assembly must tender the resignation of the Executive Council, but only if HRH exercises his discretion to refuse to dissolve the Legislative Assembly upon that MB’s request for dissolution. Whether the MB has lost the confidence of the majority of the members of the LA – as opposed to whether the MB was likely to command the confidence of the majority of LA members under Article XVI(2) – is a matter for the LA and not HRH.

Loss of Confidence: Who Decides?

Raus JCA’s judgment assumes HRH’s sole authority in determining if the MB had ceased to command the LA’s confidence the moment the MB makes a request to dissolve the LA. There is something contradictory about this position. Who actually decides whether the request for dissolution is made under Article XVI(6) or Article XXXVI(2)? If the MB decides, then HRH has no role in determining if the MB has lost the LA’s confidence.

Raus JCA took great issue with the High Court’s finding of fact, holding that Abdul Aziz J “failed to properly and adequately appreciate the evidence adduced before him” (para 50). Raus JCA went on to state that the events “bear out the undisputed fact that Nizar’s request for dissolution was made because he lost the command and support of the house” (para 23). Nizar’s request for dissolution was thus under Article XVI(6) and not Article XXXVI(2).

Even assuming that it is commonplace and acceptable for appellate courts to overturn the finding of facts by the court of first instance, this reading presents us with a conundrum. Does this mean that if an MB goes to HRH with a request for dissolution, HRH must decide – at that point – whether the MB before him is one who still has confidence of the LA. If he does, the dissolution proceeds under Article XXXVI(2), and if he does not, it will proceed under Article XVI(6). Assuming that this sounds logical – and it does not – then why did the Court of Appeal go to such lengths to controvert the High Court’s finding of fact that the request had indeed been made by Nizar under Article XVI(6) and not Article XXXVI(2) as Nizar himself claimed?

Conclusion

Many questions remain unanswered and we hope that leave to appeal to the Federal Court will be granted so that this matter can be resolved authoritatively. My closing thoughts are these:

(a) The only way to determine confidence (or otherwise) of anyone as MB is to have a formal vote on the floor of the LA. This is especially crucial where the absence of anti-hopping laws allows assemblymen and assemblywomen to transfer loyalties at a drop of a hat.

(b) MBs should be required to state clearly in requests for dissolution, whether this is being done under Article XVI(6) or Article XXXVI(2). That way, there can be no issue of how HRH is to deploy his discretion.

Postscript: Datuk Zainun Ali JCA’s judgment is now accessible here. On 9 July 2009, the Federal Court granted leave to Nizar on three questions.

Tags: Barisan Nasional, HRH, Legislative Assembly, Menteri Besar, Nizar Jamaludin, Pakatan Rakyat, Sultan, Zambry Abdul Kadir

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Posted on 10 July 2009. You can follow any responses to this entry through the RSS 2.0.

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