Perak Crisis

The courts in Malaysia have ... emasculated themselves by avoiding any form of judicial intervention or activism when the interests of the all powerful executive is at stake.

By Gerard Lourdesamy

The recent Federal Court decision on the Perak crisis confirming Zambry Abdul Kadir as the legitimate menteri besar of Perak raises several questions that have serious constitutional and political implications.

The Federal Court seems to have taken the position that a constitutional monarch has wide discretionary powers in determining whether an incumbent Prime Minister or Menteri Besar continues to command the confidence of a majority of the members of the legislature and therefore whether he can remain in office. In the exercise of this discretion, the Ruler can rely on extraneous circumstances to determine if the Prime Minister or Menteri Besar still commands the support of the majority in the legislative assembly notwithstanding that no vote of confidence is carried against him. The Federal Court was silent as to whether an objective or subjective exercise of discretion by the Ruler is called upon but the Court of Appeal in its judgment seemed to suggest that an objective exercise of discretion is required and that in any event the acts of the Sultan of Perak in assessing whether the incumbent Menteri Besar Nizar Jamaluddin had lost the support of the majority of members of the state assembly amounted to an objective exercise of such discretion.

The Federal Court also concluded that there was no mandatory requirement in the Perak Constitution for a vote of confidence to be taken on the floor of the Legislative Assembly in order to determine the loss of confidence. Therefore, the loss of confidence can be determined by external factors or even by the conduct of the incumbent Menteri Besar himself.

The Federal Court in a rather concise single judgment with which all five members of the bench concurred in such an important constitutional case that would have warranted a full bench of the apex court and separate judgments in any other jurisdiction, came to the conclusion based on the factual matrix of the case and the evidence, that between 1 and 5 February 2009, Nizar had indeed lost the support of the majority of members of the Legislative Assembly following the declaration by three members of the ruling Pakatan Rakyat coalition that they had become independents but friendly to the opposition Barisan Nasional coalition; that they had lost confidence in Nizar and now supported the Barisan Nasional; and most importantly that they continued to remain as members of the Legislative Assembly and had not resigned or vacated their seats. Therefore, the Federal Court concluded that Nizar could and must have sought dissolution of the Legislative Assembly from the Ruler on the ground that he had ceased to have the support of the majority of its members. In the apex court’s view, Nizar could not possibly given the circumstances prevailing at that time, sought a general dissolution of the Legislative Assembly to pave the way for a fresh election in the state. Both situations are provided for in the Perak Constitution.

The distinction here is that a refusal by the Ruler of a request for dissolution on the grounds of loss of confidence entails the resignation of the executive council including the Menteri Besar who is a member of the executive council and in effect its head. On the other hand the refusal of a request for a general dissolution does not entail any consequences to the executive council.

The Federal Court interpreted the clause on a loss of confidence dissolution as one which does not require the fact of such loss of confidence to be established only by means of a vote of confidence but through other circumstances, and once the Ruler refused his consent to the request, then Nizar had no choice but to tender his own resignation and that of the executive council. This in their view was a mandatory requirement the failure to comply with would lead to a situation of democratic chaos and unconstitutional conduct of the highest level that would paralyze the functioning of effective constitutional government in the state.

It cannot be denied that constitutional conventions that cover the exercise of prerogative powers by the Sovereign even in matters such as the appointment of the Prime Minister or Menteri Besar and the request for the dissolution of the legislature do exist. But the application of these conventions must also be considered in the context of written constitutions and their interpretation. If a provision in any written constitution is clear and beyond doubt then effect should be given to it notwithstanding the existence of certain constitutional conventions that come from jurisdictions that do not have a written constitution. Conventions only have a role to play in a written constitution where there is a lacuna or where the provisions in question are unclear or imprecise in their meaning and effect.

The fact that the Prime Minister or Menteri Besar while being a member of the cabinet or executive council is only answerable to the legislature for his constitutional and political legitimacy cannot be overlooked. On the other hand ministers of the cabinet or executive councilors invariably hold office at the pleasure of the Sovereign and can be dismissed by the monarch on the advice of the Prime Minister or Menteri Besar. A reading of the relevant provisions in the Federal Constitution or in this case the Perak Constitution will show that the authors of the constitution envisaged a higher degree of protection for the holder of the office of Prime Minister or Menteri Besar as opposed to members of the Cabinet or executive council. The latter are lesser personages who essentially hold office at the grace and favour of the Prime Minister or the Menteri Besar as part and parcel of the largesse of political patronage. The Chief Executive on the contrary as either the Prime Minister or Menteri Besar, is given a much more prominent role beyond primus inter pares in the exercise of his constitutional role as head of government and as the primary link between the Sovereign and the Cabinet or executive council and by extension Parliament or the legislative assembly in a Westminster system of parliamentary government.

Therefore, after reading the relevant provisions of the Federal Constitution or the Perak Constitution and after considering the applicable constitutional conventions, it can be determined that the Ruler has no power to dismiss the Prime Minister or Menteri Besar or to declare his office as vacant unless and until there is an objective determination that the Prime Minister or Menteri Besar has lost the confidence of a majority of members of the legislature.

The Federal Court also favoured the judgment of the High Court in Amir Kahar’s case that departed from the findings of the same court in Stephen Kalong Ningkan’s case primarily on the methods of determining the issue of loss of confidence. The apex court also relied on the opinion of the Privy Council in the Nigerian case of Akintola to justify its conclusions. It is regrettable that in so doing the apex court gave a literal, narrow and pedantic interpretation to the relevant constitutional provisions while disregarding fundamental principles governing the role and powers of a constitutional monarch, the established conventions applicable to such circumstances as in the Perak case and most importantly the public interest as manifested by the overwhelming majority of the people of Perak who voted in support of the Pakatan Rakyat coalition during the 2008 general election.

The Federal Court in my opinion fell into error on the following grounds in the Perak case:

a. The Ruler while having a discretion in the matter of the appointment of the Menteri Besar does not have any such discretion when it comes to the determination of whether the incumbent Menteri Besar still has the confidence of the majority of members of the legislative assembly. This distinction is clear from the different wordings in the Perak Constitution regarding the powers of the Ruler in these two differing situations;

1. The Ruler as a Constitutional Monarch does not have any role to play in determining whether the incumbent Menteri Besar has lost the confidence of the legislature as that is a matter for members of the legislature to determine. This is simply because the Menteri Besar does not hold office at the pleasure of the Ruler and he and the Executive Council are responsible to the legislature and not the Ruler. I will go so far as to say that the Ruler in this case had transgressed into the jurisdiction of the legislature and eroded its rights and privileges. It is a cardinal and sacred principle of constitutional government that the peoples’ representatives in the legislature are the only ones who have the right to prematurely determine the life of any government prior to a general election. The Ruler merely has a dignified role to play in constitutional government but the efficient parts are for the executive and the legislature to exercise and determine (see Dicey);

1. Extraneous circumstances whether objective or otherwise is a dangerous basis and precedent on which to determine if an incumbent Menteri Besar ought to be forced to resign or dismissed from office or to declare vacant his office. If allowed to flourish, it can be open to abuse and misuse at the hands of unscrupulous politicians and destroy the very fabric of constitutional government and the public interest;

1. The extraneous circumstances in the Perak case were unreliable and disputed because of the differing views taken by the Speaker of the Legislative Assembly and the Election Commission as to the status of the three assemblymen who had declared themselves independent. The Speaker argued that they had vacated their seats by virtue of the resignation letters that he had received from them. The three assemblymen disputed the purported resignation letters and denied their validity. While the Election Commission declared that it was unable in the circumstances to declare their three seats as vacant and that they remained as the duly elected assemblymen for the three seats. Between 1 and 5 February 2009, there were conflicting views on the status of the three assemblymen with the Speaker contending that he had the final decision and the Election Commission saying otherwise. At that point in time the Federal Court had yet to determine whether it was the Speaker or the Election Commission who had the power to declare a casual vacancy of seats in the Legislative Assembly. There was a provision in the Perak Constitution to the effect that the power lay with the Election Commission but this provision had not yet been tested in the Federal Court at the material time by either contending party. The Court of Appeal in its judgment in this case, with remarkable hindsight concluded that the power lay with the Election Commission. But this crucial fact was not known to the Ruler on 5 February 2009. Therefore, it could not be established mathematically beyond doubt on 5 February 2009 that the Barisan Nasional had a clear majority of 31 seats as opposed to the Pakatan Rakyat’s 28 in the Legislative Assembly despite whatever assurances that the Ruler received from the three impugned assemblymen. The fact that the Barisan Nasional did not ask for the Ruler to convene the Legislative Assembly to determine its strength supports the conclusion that there was a possibility that the Speaker would not have allowed the three assemblymen to take part in the proceedings. Therefore, it was most likely that neither coalition with only 28 seats each would have a majority in the Legislative Assembly and the vote of no confidence would not have been carried as the Speaker would have voted against the motion following convention;

1. The word “confidence” referred to in the Perak Constitution as opposed to “support” is a term of art as the High Court Judge in Ningkan’s case opined. In Amir Kahar, the Judge felt that there was no difference. The word “confidence” connotes a degree of trust and acceptance beyond question whereas the word “support” can be interpreted to mean transient agreement or lack of objection. “Support” can be impermanent as opposed to “confidence”. That is why the floor of the legislature is the best place to determine whether an incumbent prime minister or menteri besar has the “confidence” of the majority in the course of a confidence motion taken on a division in private. Despite the assurances given by the three assemblymen to the Ruler in private audience, the fact that two or all of them had “disappeared” from the state prior to their appearance at a press conference in Putrajaya on 4 February 2009 with the then Deputy Prime Minister Najib Tun Razak to show their support for the Barisan Nasional should have alerted the Ruler to the possibility of some improper or coercive pressure being put on them. This was confirmed further the next day when all of them were bussed to the palace for the audience under the watchful eyes of the police and minders of the Barisan Nasional;

1. Amir Kahar’s case can be distinguished on its facts as the petition sent to the Sabah Governor was signed by a very clear majority of the members of the legislative assembly just like in Akintola’s case and in Amir Kahar’s case the then incumbent chief minister Joseph Pairin Kitingan did not dispute the loss of confidence and tendered his resignation to the Governor. In Nizar’s case, he never conceded that he had lost the confidence of the majority and neither did he resign. Furthermore, it would seem that neither the Barisan Nasional nor the Pakatan Rakyat had a majority in the Legislative Assembly between 1 and 5 February 2009. It was a deadlock at 28-28 between the two parties. In any event it is my view that Akintola and Amir Kahar are not good precedents to be followed as they effectively deny the legislature the right to vote the incumbent government out of office thereby rendering the constitutional role of the legislature illusory in such circumstances;

1. The Ruler in such a charged atmosphere of political uncertainty and chicanery in Perak between 1 and 5 February 2009 should not have been allowed to become the “football of competing parties” but instead the matter should have been determined by the legislature in an open and transparent manner. The Federal Court by allowing the introduction of extraneous circumstances to determine the loss of confidence has in effect vested the Ruler with a discretionary power that will invariably expose the Ruler to allegations of political bias and eventually in any future case involving the Barisan Nasional at the federal level open the apex court to criticisms for bias or unfairness if they rule otherwise under similar circumstances involving the Pakatan Rakyat; and

1. Lastly, by vesting the Ruler with a discretionary power to determine the loss of confidence issue by relying on extraneous circumstances, the Federal Court has in effect changed the nature of the role of the monarchy from a Constitutional one to an Executive one. The danger here is that the exercise of any discretionary executive power by the Ruler in person in determining the loss of confidence issue will subject that decision to the purview of the High Court by way of judicial review and therefore challenge the hitherto held view that the exercise of the royal prerogative in person in matters of state such as the appointment of the Prime Minister or Menteri Besar and the request for the dissolution of the legislature are not amenable to judicial review (see the speech of Lord Roskill in the GCHQ case). The Supreme Court of India and the Supreme Court of Canada have in several decisions argued that the exercise of executive prerogative powers even in matters of national security and foreign relations can be reviewed by the court. By allowing the Ruler to exercise his personal discretion in determining the loss of confidence issue, the Federal Court has expanded the powers of the Constitutional Monarch to the point of vesting Executive Powers on the Ruler to dismiss the Menteri Besar or declare his office vacant without reference to the legislature and thereby subjecting the decision of the Ruler to review by the High Court.

It is also a cause for concern that the Federal Court has consistently subscribed to a very narrow, conservative and pedantic view when it comes to the interpretation of the Federal and State Constitutions. It has more readily and wrongly in my view fallen into the trap of interpreting the constitution from the standpoint of Parliamentary supremacy as opposed to Constitutional supremacy which is the most important feature of any written constitution.

Most judges in the superior courts are more than willing to interpret the Constitution as if it were an ordinary piece of legislation and subject to Federal Laws to the extent of qualifying fundamental rights and liberties in the Constitution by reference to ordinary laws passed by Parliament. The courts in Malaysia have not only emasculated themselves by avoiding any form of judicial intervention or activism when the interests of the all powerful executive is at stake but they have also consistently differed to the views of the government in most matters to the point that constitutional safeguards are negated or diluted altogether.

This is because a vast majority of judges either consciously or unconsciously subscribe to the view that the government is right in most circumstances and knows best and that they are merely public servants with concerns about promotions, pensions, appointments after retirement and their families’ well being. Somewhere in this confusion principles and integrity is sacrificed and a constitutional oath to defend the rights and liberties of the people is conveniently forgotten. At the end of the day until and unless the judiciary is fundamentally reformed from top to the bottom and there is a paradigm shift in judicial thinking, there will remain a serious public perception that there are only two types of judges in this country: those who know the law and those who know the government.