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By Hardial Singh Khaira LL.B(Hons)(U.Malaya); LL.M(U.W.Australia) Honorary Research Fellow, Murdoch University
It may be best to consider the current Perak constitutional crisis, in relation to the dismissal and appointment of Menteri Besars, by first bearing in mind a pertinent quote by the eminent constitutional writer, S.A. de Smith that was quoted by Harley Ag. CJ in Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli1 (hereinafter referred to as Stephen Kalong Ningkan No.1):
In some political situations a judicial duty to rule upon the legal merits of the case may have to be accepted as an inescapable obligation. ... In an atmosphere highly charged with political tension the task of the judges may be acutely embarrassing, especially if they are called upon to decide between two claimants to legitimate political power, of whom one commands the effective means of imposing his will and the other is able to marshal equally or more persuasive legal arguments.2
Raja Azlan Shan, the Sultan of Perak, who was once a judge himself, has unfortunately become embroiled in the constitutional crisis because he purported to exercise a power of dismissal which this article will show he never possessed. It is therefore equally important to remember his own words in Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus3 that a ‘constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way’.4 That a constitution should not be construed pedantically is also supported by the views of Tan Chiaw Thong J in Tun Datu Haji Mustapha Bin Datu Harun v Tun Datuk Haji Mohamed Adnan Robert, Yang Di-Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan (No 2)5 (hereinafter to as the Kitingan case No.2) when he said:
I have borne in mind the relevant principles relating to the proper interpretation of constitutions which I had earlier referred to. Further, “the only true guide and the only course which can produce stability in constitutional law is to read the language of the Constitution itself, no doubt generously and not pedantically, but as a whole: and to find its meaning by legal reasoning” (per Barwick, C.J. in AG of the Commonwealth ex relatione McKinlay v The Commonwealth of Australia (1975) 135 CLR 1, 17, 7 ALR 593).6
The structural overview (below) of the cases that have decided issues of dismissal and appointments of Chief Ministers in Malaysia show just how difficult a task is faced by the
1 2 3 4 5 6
 2 MLJ 187 S.A. de Smith, The New Commonwealth and its Constitutions, p. 87, quoted in Stephen Kalong Ningkan No.1 at p. 195.  1 MLJ 29 Ibid, at page 32  2 MLJ 420 Ibid, at pp. 467-468. Underlined emphasis added.
courts in deciding the issues objectively. A judicial resolution of the crisis is being demanded where a political resolution is warranted.
Dismissal and Appointment of Chief Minister or Menteri Besar
STEPHEN KALONG NINGKAN FACTS Loss of support in letter to Governor 21 out of 42 members signed letter with one just being a ‘chop’ Governor dismissed Chief Minister and appointed new Chief Minister
ADEGBENRO v AKINTOLA (Privy Council) Loss of confidence not limited to Assembly and could be based on other material as well Refused to apply English constitutional conventions as there was a written constitution
KITINGAN CASE 1994 FACTS Loss of support in petition to Yang diPertua Negeri Withholds consent to dissolve Assembly Pairin Kitingan accepted loss of confidence and resigned as CM but did not tender resignation of cabinet New CM and cabinet appointed
HELD Loss of confidence only by a vote in the Legislative Assembly Governor could not dismiss the Chief Minister in any circumstances Adegbenro distinguished and not followed Rejected argument that even if there was no express power to enforce the resignation of a Chief Minister, that power lay by implication with the Governor
KITINGAN CASE 1985 FACTS Tun Mustapha appointed CM even though in minority Yang di-Pertua Negeri forced into making appointment Yang di-Pertua Negeri next dismissed him and appointed Pairin Kitingan as CM
HELD Involved legal and constitutional issues and not just discretion of Yang di-Pertua Negeri and therefore justiciable Nominated members cannot be taken into consideration when deciding who should be appointed as CM Signed and sealed instrument of appointment required for effective and valid appointment Taking of Oath not sufficient for valid appointment Legally appointed CM can only be dismissed after vote of confidence in Assembly
HELD Resignation of Pairin Kitingan meant dissolution of his cabinet as well Once CM knows there is loss of confidence – should not wait for vote but resign honourably Adegbenro applied - Loss of confidence not necessarily only by vote in Assembly and other methods could be used to ascertain it Rejected argument that even if there was no express power to enforce the resignation of a Chief Minister, that power lay by implication with the Yang di-Pertua Negeri Prepared to apply constitutional conventions
Decided in all cases the Chief Minister appointed by Head of State but does not hold position at ‘his pleasure’ - No power of dismissal
PERAK CONSTITUTIONAL CRISIS FACTS PR members defected and support BN Sultan of Perak meets members of Assembly to ascertain ‘loss of confidence’ in appointed MB Withholds consent to dissolve Assembly Dismisses MB and appoints new MB
Stephen Kalong Ningkan & Kitingan (1985) cases – not prepared to apply Interpretation Acts that states if there is power to appoint it shall be implied that there is also power to dismiss
Stephen Kalong Ningkan – vote of confidence must be in Assembly Adegbenro & Kitingan cses – can be determined by other means and not confined to Assembly
Perak Constitution Discretion to appoint Menteri Besar – not justiciable. but no power to dismiss. Kitingan cases – if Head of State acts unconstitutionally or illiegally – justiciable.
Kitingan case Legally appointed can only be dismissed after vote of confidence in Assembly
Kitingan case – Honourable thing was for Chief Minister to resign once aware of loss of confidence and not necessary for vote of confidence
The current constitutional crisis in Perak has thrown up some serious issues that need to be considered. What makes it difficult for any objective adjudicator is the fact that the precedents available seem to have been distinguished on the facts before the final decision had been made. At the top of the hierarchy is the Nigerian case of Adegbenro v Akintola7 that was decided by the Privy Council in 1963. Two important rulings were made by it. Firstly, the ‘loss of confidence’ did not necessarily have to be determined on the floor of the Assembly. Viscount Radcliffe in the Privy Council said:
The difficulty of limiting the statutory power of the Governor in this way is that the limitation is not to be found in the words in which the makers of the Constitution have decided to record their description of his powers... According to any ordinary rule of construction weight must be given to the fact that the Governor’s power of removal is not limited in such precise terms as would confine his judgment to the actual proceedings of the House, unless there are compulsive reasons, to be found in the context of the Constitution or to be deduced from obvious general principles, that would impose the more limited meaning for which the respondent contends.8
Secondly, English constitutional conventions were not to be applied where there were written constitutions and reliance could be placed upon their express provisions. The Privy Council said that conventions of the constitution as such were not laws at all and are therefore not enforced by the courts. They could achieve the status of laws by the process of statutory enactment but not by that of judicial recognition. Constitutional Conventions Harley Ag. CJ considered the views of Dicey9 on constitutional conventions and said that ‘the same principles apply mutatis mutandis to the Constitution of Sarawak’ and therefore the ‘constitutional way out both for a British Prime Minister and for a Sarawak Chief Minister is not by dismissal but by resignation.’10 Harley Ag. CJ also quotes some of the following relevant passages on constitutional conventions from Dicey:
... the nation expects that a Minister who cannot retain the confidence of the House of Commons shall give up his place, and no Premier even dreams of disappointing these expectations. (at p. 444) But the sanction which constrains the boldest political adventurer to obey the fundamental principles of the constitution and the conventions in which these principles are expressed, is the fact that the breach of these principles and of these conventions will almost immediately bring the offender into conflict with the courts and the law of the land. (at p. 445) ... the one essential principle of the constitution is obedience by all persons to the deliberately expressed will of the House of Commons in the first instance, and ultimately to the will of the nation as expressed through Parliament. (at p. 456)
7 8 9
 3 WLR 63; (1963) 7 JAL 99 (1963) 7 Journal African Law 99 at p. 105. Emphasis in italics and underline added. Dicey, A.V., The Law of the Constitution: (10th edition), Chapter XV: The Sanction by Which the Conventions of the Constitution are Enforced, pp. 444 to 457. Supra, at p. 195. Italics emphasis added.
Of course, therefore, a Minister or a Ministry must resign if the House passes a vote of want of confidence. (at p. 457)
Stephen Kalong Ningkan No.1 is not good authority for the current situation in Perak where the Menteri Besar has refused to resign even after it has become obvious that he does not have the majority of the Assembly. It is important to keep in mind that a significant point was not considered in Stephen Kalong Ningkan No.1 as Harley Ag. CJ decided that there was no need to speculate on what would happen if an occasion arose for a resignation and the Chief Minister refused to resign since in Stephen Kalong Ningkan No.1 the Chief Minister had not refused to resign and there was no power to dismiss him.11 However, Harley Ag. CJ, did say that he was not prepared to empower the Governor with the power of dismissal as ‘(j)ust because a Chief Minister or a Governor does not go when he ought to go is not sufficient reason for implying in the Constitution an enforcing power vested in some individual.’12 This was despite the argument by the defendant that in this situation at least, the Governor should have a right of dismissal as otherwise the Constitution would become simply unworkable. Likewise, Abdul Kadir Sulaiman J in Datuk (Datu) Amir Kahar Bin Tun Datu Haji Mustapha v Tun Mohd Said Bin Keruak Yang Di-Pertua Negeri Sabah & Ors13 said that constitutional conventions could only be used in the aid of the construction and interpretation of the constitutional provisions but not to override the express provisions of the Sabah Constitution. Therefore, before a convention is invoked, the constitutional provisions first needed to be looked at. He warned, in that case, that it was not just a matter of merely looking at a constitutional convention and brushing aside the constitutional provision.14 In the comparison of the State Constitutions (set out below), while there is a requirement that the Chief Ministers and Menteri Besar render the resignation of the Executive Councils/Cabinet there is no provision that requires them to resign their position as well. If the Chief Ministers and Menteri Besar are required to tender the resignation of the other members of the Executive – does that not also imply that they should tender their own resignations as well? At best, it could be argued that there is a constitutional convention that they should also resign their position, but then, constitutional conventions are not meant to be enforced by law. The refusal to resign may not be the honourable thing to do but based on the constitutional provisions and not conventions it is not illegal.
11 12 13 14
Ibid, at p. 194 Ibid. Underlined emphasis added.  3 MLJ 737. Ibid, at p. 746
Comparison of Sarawak, Sabah & Perak State Constitutions SARAWAK Article 6(3) – The Governor shall appoint as Chief Minister a member of the Council Negeri who in his judgment is likely to command the confidence of a majority of the members of the Council Negeri and shall appoint the other members mentioned in paragraph (a) of clause (2) in accordance with the advice of the Chief Minister from among the members of the Council Negeri. SABAH Article 6(3) – The Yang di-Pertua Negeri shall appoint as Chief Minister a member of the Legislative Assembly who in his judgment is likely to command the confidence of a majority of the members of the Assembly and shall appoint the other members in clause (2) in accordance with the advice of the Chief Minister from among the members of the Assembly. Article 7(1) - If the Chief Minister ceases to command the confidence of a majority of the members of the Legislative Assembly, then, unless at his request the Yang di-Pertua Negeri dissolves the Assembly, the Chief Minister shall tender the resignation of the members of the Cabinet other than the ex officio members. Article 7(2) – A member of the Cabinet other than an ex officio member may at any time resign gis office by writing under his hand addresses to the Yang di-Pertua Negeri, and a member of the Cabinet other than the Chief Minister or an ex officio member shall hold office at the pleasure of the Yang di-Pertua Negeri. PERAK Article XVI (2)(a) – His Royal Highness shall first appoint as Menteri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the Assembly. Article XVI (6) – 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. Article XVI (7) – Subject to clause (6) a member of the Executive Council other than the Menteri Besar shall hold office at his Royal Highness’ pleasure, but any member of the Council may at any time resign his office.
Article 7(1) - If the Chief Minister ceases to command the confidence of a majority of the members of the Council Negri, then, unless at his request the Governor dissolves the Council Negri, the Chief Minister shall tender the resignation of the members of the Supreme Council.
Article 7(3) - … a member of the Supreme Council other than the Chief Minister shall hold office at the Governor’s pleasure.
Power of Dismissal The provisions of the State Constitutions of Sarawak, Sabah and Perak (as set out above) also show that the Chief Ministers of Sabah and Sarawak and the Menteri Besar, unlike the other members of their Executive Councils, do not hold their office at the pleasure of the Head of State. It is for this reason that the right to dismiss the Chief Ministers in Sarawak was denied to the Heads of State of Sabah and Sarawak, and likewise, should be denied to the Sultan of Perak. On the issue of the dismissal of a Chief Minister, Tan Chiaw Thong J in the Kitingan case No.2), endorsed the views of Harley Ag. CJ in Stephen Kalong Ningkan No.1 that a legally appointed Chief Minister should only be dismissed in accordance with Article 7(1) of the Constitution after a vote of no confidence had been taken against him in the Legislative Assembly.15
Ibid, at p. 459
The Court in Stephen Kalong Ningkan No.1 was urged to fill a lacuna in the Constitution that seemed to exist. It was argued that, even if there was no express power to enforce the resignation of a Chief Minister, it lay by implication with the Governor. Some writers, and in particular, Thio16 is critical that the Sarawak Constitution should be construed as giving no power of dismissal to the Governor and submits that it is implicit in the constitutional scheme that the Governor has a power of dismissal in the circumstances of the case in Stephen Kalong Ningkan No.1.17 Thio believes that Harley Ag. CJ shrunk from his judicial duties in not sealing what was an obvious gap in the Sarawak State Constitution as it would have surely been more reasonable for the courts to adopt the ‘construction which would accord most with the constitutional scheme devised under the Constitution rather than a construction which would produce a gap in the Constitution, especially when this can be achieved without any distortion of the language of the Constitution.’18 Interpretation Acts In Stephen Kalong Ningkan No.1 Harley Ag. CJ declined to apply section 21 of the Sarawak Interpretation Ordinance (Cap. 1) which provides that the power to appoint includes the power to dismiss. He held that, in principle, the Sarawak Council Negri should manage its own affairs.19 In the Kitingan case No.2 too, the High Court declined to apply Section 29(3) of the Interpretation and General Clauses Enactment 1963 of Sabah which provides that ‘(w)here any State law confers upon any authority or 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 ... any person appointed ...’ and ruled that there was ‘contrary intention’ to justify the interpretation that the Sabah Constitution did not provide for the dismissal of the Chief Minister. Tan Chiaw Thong J in his judgment said that the absence of express provision in the Constitution giving any power of removal from office or dismissal showed that the Constitution did not intend that any such power should be given to the Head of State as otherwise it would have expressly said so like in the case of members of the Cabinet other than the Chief Minister. He concluded by saying that he considered ‘that the scheme of the Constitution is such that if a Chief Minister misconducts himself or there are other circumstances giving rise to reasonable cause for the removal of a Chief Minister, it is left to the good sense and responsibility of the Assembly to pass a vote of no confidence against him, and, in the normal case, Article 7(1) requires him to either request the Head of State to dissolve the Assembly, or tender his resignation and that of other members of his Cabinet.’20
16 17 18 19 20
Thio, S.M., Dismissal of Chief Ministers, (1968) Vol. 8 No. 2 Malaya Law Review 283 at p. 283 Ibid, at p. 287 Ibid, at p. 288 Supra, at p. 193 Supra. at p. 468. Underlined emphasis added.
Denial of Request to Dissolve An important issue that arises is whether the denial of the request to dissolve the Assembly was unconstitutional as it was a breach of a constitutional convention. Here again there has been a rejection of any invitation in the decided cases to apply constitutional conventions to resolve the issue. For example, Harley Ag. CJ in Stephen Kalong Ningkan No.1 opined that a Chief Minister may advise a dissolution but the Governor's refusal to dissolve, while it might be conventionally unconstitutional, was not illegal.21 Justiciable The courts have also ruled that the rulers are not autocratic rulers who have unlimited discretion to act and therefore any act that involves a legal or constitutional power was justiciable. In Stephen Kalong Ningkan v Government of Malaysia22 Ong Hock Thye FJ remarked that
His Majesty is not an autocratic ruler since article 40(1) of the Federal Constitution provides that “In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet ....”23
In Tun Datuk Haji Mohamed Adnan Robert v Tun Datu Haji Mustapha Bin Datu Harun; Datuk Joseph Pairin Kitingan v Tun Datu Haji Mustapha Bin Datu Harun24 (hereinafter referred to as the Kitingan case No.1), Tan Chiaw Thong J expressed the view that
(T)he issue of dismissal and the applicability of the Stephen Kalong Ningkan's case (1966) and alleged legal power of dismissal as pleaded in the defence are issues that are legal and constitutional in nature, and are therefore, in my opinion, issues that are justiciable and within the jurisdiction of the Court to try them.25
When the appellants in that case appealed against the ruling of Justice Tan Chiaw Thong, the Supreme Court basically endorsed the rulings made by him and decided that justiciable issues did in fact arise for judicial determination in that case and the matter fell within the jurisdiction of the court for adjudication. Abdul Hamid CJ delivering the oral judgment of the Supreme Court said:
The mere fact that a litigant seeks the protection of a political right does not mean that it presents a political question. Whether a matter raises a political question; whether it has been committed by the Constitution to another branch of government is itself a matter for judicial determination because the Constitution has made the Courts the ultimate interpreter of the Constitution. The Courts accordingly cannot reject a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority.26
21 22 23 24 25 26
Ibid.  1 MLJ 119 Ibid, at pp. 125-126  1 MLJ 471 Ibid, at pp. 474-475 Ibid, at p. 485
In conclusion it may well do to remember that there is obviously a constitutional convention that enjoins a Chief Minister or Menteri Besar to resign if it becomes obvious that he has lost the support of the majority of the Assembly. It was the course adopted by Datuk Joseph Pairin Kitingan when he resigned as the Chief Minister of Sabah. The English version of his letter of resignation stated that ‘(b)y convention, the Chief Minister will have to resign if the ruling party no longer has the majority support of the assemblymen.’27 His respect of the constitutional convention avoided an impasse developing as it has in Perak. It is equally important to remember that if that constitutional convention is not observed it does not mean that there is a legal right for the Head of the State to dismiss him as courts have consistently declined to enforce constitutional conventions. The final recourse still lies with the Legislative Assembly of the State. Finally, the words of Harley Ag. CJ in Stephen Kalong Ningkan No.1 should be heeded ‘(t)hat political solution may well be the only way to avoid a multiplicity of legal complications. Possibly all parties, and the people of this nation, in whom sovereignty is supposed to lie, will wish the same solution.’28 The objective structural analysis29 of the resolution of the Perak constitutional crisis in line with the decided legal authorities is set out below.
Datuk (Datu) Amir Kahar Bin Tun Datu Haji Mustapha v Tun Mohd Said Bin Keruak Yang Di-Pertua Negeri Sabah & Ors  1 MLJ 169 at p. 178 Supra, at p.195 This analysis is given before any decision has been made by the courts in Malaysia.
Analysis of Dismissal and Appointment of Menteri Besars in Perak
Loss of support caused by defection of members. Sultan determines loss by having audience with members not supporting existing MB.
Whether loss of support must be by vote of no confidence in Assembly or extraneous means can be used?
Adegbenro case (Privy Council) & Kitingan case (1994 Sabah) – extraneous means may be used.
Stephen Kalong Ningkan case – only a vote in Assembly counts
Where there is loss of support MB shall resign or request to dissolve Assembly
Article XVI(6) Perak Constitution - MB’s loss of confidence if request for dissolution not granted – Shall tender resignation of Executive Council
Similar to provisions in Sarawak & Sabah Constitutions
Request to dissolve denied by Sultan. Denial of request within prerogative of Sultan - Not justiciable Kitingan case (1994 Sabah) – CM’s post not at the pleasure of Governor – Article 7(3) Sabah Constitution – No power of dismissal Article XVI(7) Perak Constitution - MB’s post not at the pleasure of Sultan – No power of dismissal
Sultan dismisses old MB (Nizar)
Whether Sultan had the power to dismiss?
Whether old MB (Nizar) compelled by convention to resign & if convention enforceable?
Adegbenro & Stephen Kalong Ningkan – conventions not applicable and may not be applied for determination
Sultan’s act was illegal & unconstitutional
Whether it is justiciable?
Stephen Kalong Ningkan & Kitingan cases – where Head of State acts illegally and constitutionally justiciable
ONLY LEGAL & CONSTITUTIONAL SOLUTIONS
Sultan appoints a new MB (Zambry)
Old MB (Nizar) remains in power although has not observed conventions & all acts of Speaker & old Executive Council vaild
** Menteri Besar (Nizar) should recognise constitutional convention and resign honourably (as Pairin Kitingan did) ** OR - Assembly should be dissolved ** OR - Matter be resolved by the Assembly itself
[This article is a follow up to three earlier articles: • • Dismissal of Chief Minister: Stephen Kalong Ningkan (No.1): A Brief Analysis. http://www.scribd.com/doc/14582045/Dismissal-of-Chief-Minister-Ningkan1 The Use of Emergency Powers to Dismiss a Chief Minister - Stephen Kalong Ningkan No.2. http://www.scribd.com/doc/14758514/Stephen-Kalong-NingkanNo-2-Use-of-Emergency-Powers]
Appointment and Dismissal of Chief Ministers in Sabah - The Kitingan Cases
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