Perak: Another mockery of justice coming up?

by Kevin YL Tan

— earlier Court of Appeal judgment doubtful

Kevin Tan who is Faculty of Law Professor (Adjunct) in the National University of Singapore — and obtained his LLM and JSD from Yale Law School — argues that the burden of judgment is for the Federal Court on the text of Perak Constitution, and three simple provisions contained therein. Hence, the Sultan should have dissolved the assembly upon Nizar’s request.
In a few days, the Federal Court will hear one of the most important constitutional appeals in recent times: Nizar Jamaluddin v Zambry Abd Kadir. While many readers are familiar with the facts leading to this appeal, it is useful to recapitulate the key events.
The resignation of three Pakatan Rakyat (PR) assemblymen in February this year left the ruling PR government with control over 28 seats in the Legislative Assembly (LA), the same number of seats controlled by the opposition Barisan Nasional (BN). This led the incumbent PKR Menteri Besar (MB) of Perak, Nizar to request Sultan Azlan Shah (HRH) on February 4, 2009 to dissolve the LA so that this numeric deadlock could be resolved. HRH took no immediate decision.
The following day, HRH met up with 31 members of the LA (including the three PR members who had earlier resigned), satisfied himself that all 31 of them supported Zambry as MB and proceeded to inform Nizar that he no longer commanded the LA’s confidence. Nizar was then asked to tender the resignation of the executive council. When Nizar did not comply, HRH’s office issued a press statement declaring the office of MB to be vacant and that Zambry had been appointed the new MB of Perak since he commanded the confidence of the majority of LA members. Nizar applied to the High Court for a declaration that he remained Perak’s MB.
On May 11, 2009, the Kuala Lumpur High Court ruled (per Abdul Aziz J) that since there had been no formal vote of confidence on the floor of LA, Nizar remained the rightful MB of Perak. Zambry appealed. The Court of Appeal unanimously reversed the High Court decision but it was some time before the three judgments were released. Two of them, those of Dato’ Raus Sharif and Dato’ Ahmad Maarop JJCA were released towards the end of June while that of Dato’ Zainun Ali JCA was released in early July.
The three lengthy judgments come up to some 240 pages in all and a large number of issues were canvassed and discussed. I had previously commented on the correctness of the High Court decision and having already discussed the contradictions that arose from the judgments of Raus and Maarop JJCA feel it timely to revisit the most salient issues in this case.
Sultan’s discretion to dissolve legislative assembly
Under the Perak Constitution, HRH’s discretion with respect to the dissolution of the LA is found in two provisions.
* The first is Article is Article 16(6) which provides: 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.
* The second is to be found in Article 36, the relevant parts of which reads:
(2) His Royal Highness may prorogue or dissolve the Legislative Assembly.
(3) The Legislative Assembly unless sooner dissolved shall continue for five years from the date of its first sitting and shall then stand dissolved.
(4) Whenever the Legislative Assembly is dissolved a general election shall be held within sixty days from the date of the dissolution and the new Legislative Assembly shall be summoned to meet on a date not later than ninety days from that date.
Of particular interest to us is Article 36(2) which gives HR the general power to ‘prorogue or dissolve’ the LA. Article 18(2)(b) further provides that HRH ‘may act in his discretion’ in ‘the withholding of consent to a request for the dissolution of the Legislative Assembly’.
In the High Court, Abdul Aziz J made the following findings of fact:
(a) Nizar’s request to HRH to dissolve the LA was not done ‘with reference to any provision in the Perak’s State Constitution; and
(b) Nizar was thus requesting HRH to exercise his royal prerogative under Article 36(2), and not under Article 16(6).
As such, the learned judge found no ambiguity in the wording of Article 16(6) and held that:
(a) HRH had no power to dismiss Nizar; and
(b) HRH was not allowed to deem the office of MB vacant when Nizar did not resign.
To do so, he said, would be to do ‘violence to the language’ of Article 16(6).
I previously argued that Abdul Aziz J was correct in his interpretation and added that the only logical way to read these various provisions is this:
* If the MB makes an unspecified request to HRH to dissolve the LA, that request falls under HRH’s general power to dissolve the LA under Article 36(2) and he is free to exercise his discretion as he deems fit under Article 18(2)(b).
* If the MB determines that he has lost the confidence of the LA and would like fresh elections, he will make a request to HRH under Article 16(2). In that instance, if HRH refuses the request, the MB must tender the resignation of the Executive Council to enable HRH to appoint a new MB.
The court of appeal decision
It would take a full-blown academic article to critique the three judgments of the Court of Appeal; they are too long and often dwell on subjects that were not germane to the issues. Even so, a number of observations may be made.
Unlike most appellate judges, the three Court of Appeal judges had no compunction about reversing the High Court’s finding of fact. The High Court had found that the request for the dissolution of the LA was made under Article 36(2) and not Article 16(6), but this was doubted by the Court of Appeal.
Raus Sharif JCA chastised Abdul Aziz J for failing ‘to properly and adequately appreciate the evidence adduced before him’ and found that the events bore ‘out the undisputed fact that Nizar’s request for dissolution was made because he lost the command and support of the house’. This was how he found that Nizar’s request for dissolution was made under Article 16(6) and not Article 36(2).
Zainun Ali JCA went to great lengths to demonstrate that Nizar must have known that he had already lost the confidence of the LA when he made his request to HRH to dissolve the LA. The language is almost condescending (at pp 31-32):
“It can safely be inferred that Nizar himself is an intelligent man. In fact I believe he is. He would be alert if not alerted, to the political dynamics existing then in the State of Perak. The information on the political situation would, without question be notified to him. His vigilance is displayed when he himself alerted His Royal Highness on the uneasy political events taking place in Perak as early as 2.2.2009. He would have made a quick mental assessment of the effect of the depletion in the number of Assemblyman [sic] aligned to him in the Legislative Assembly. Why else then would Nizar sent [sic] a letter requesting for dissolution of the Legislative Assembly on 4.2.2009 to His Royal Highness?”
There is much more; in fact, about 40 pages’ worth. The learned judge even went on a speculative spree, taking judicial notice of Nizar’s access to the newspapers on the morning of Feb 4 (at p 23) and thereby suggesting that Nizar must have known that he had lost the confidence of the LA through the defection of the three Assemblymen who had ostensibly resigned in February.
All this was done because of the troublesome “simple request without more, for the dissolution of the Legislative Assembly” that Nizar had sent to HRH (p 22). If the letter was a simple request and nothing more, some other evidence must direct the Court as to which constitutional provision it was being made: Article 36(2) or Article 16(2)?
One interesting observation made by Zainun Ali JCA was the fact that the draft Proclamation for the dissolution of the LA was ‘a standard document available in the office of the Menteri Besar’. Contrary to what the learned judge held, this seems all the more to suggest that the request was really a general ‘standard’ request under Article 36(2) and not Article 16(2).
Ahmad Maarop JCA was less interested in the facts than in whether or not HRH could make a determination on whether or not the MB had ceased to command the confidence of the LA by means other than a formal vote on the LA floor. He simply took the view that the request for dissolution was made under Article 16(2) and proceeded on that basis. After examining the authorities, he preferred the approach of the Privy Council in Adegbenro v Akintola (on appeal from Western Nigeria) to that of Malaysian High Court in Stephen Kalong Ningkan v Abang Haji Openg & Tawi Sli.
The issues: once again
It is easy to get lost in the morass of words and erstwhile authorities cited by the judges in the Court of Appeal such that we soon fail to see the real issues at hand.
To recapitulate, the issues before the Federal Court are the same as those that were before the High Court: What is the extent of the Sultan’s discretionary power under the Perak State Constitution in relation to the dissolution of the Legislative Assembly and the appointment or removal of the Menteri Besar. To answer this question, the following issues must be addressed:
One, who decides whether a request for the dissolution of the LA is made under Article 16(2) or Article 36(2) of the Perak State Constitution?
Two, how is loss of confidence of the majority of the LA to be determined?
The answer to the first question is clear – it is the Menteri Besar since it is he or she who makes the request. As I explained in my earlier comment (taking issue with one aspect of Raus Sharif JCA’s judgment), any other reading of the Constitution would be problematic.
If the MB makes an unspecified request, then HRH must accept that it is a request made under the general powers of dissolution under Article 36(2). In such a request, HRH is confronted with a very simple binary question: Does he or does he not dissolve the LA? As Sultan Azlan Shah had himself argued, the Head of State should ordinarily accede to a request to dissolve the legislature:

“… under normal circumstances, it is taken for granted that the Yang di-Pertuan Agong would not withhold his consent to a request for dissolution of Parliament. His role under such a situation is purely formal.”

There is no question of HRH making any kind of determination as to whether or not the MB still commanded the majority of the LA.
However, if a specific request to dissolve the LA is received under Article 16(2), with the MB stating that he has lost the confidence of the LA, then Article 16(6) kicks into operation, and if HRH should refuse to dissolve the LA – whether for fear of major political convulsions or unrest – the MB must tender the resignation of the Executive Council.
There is no question of an MB going to HRH and asking HRH whether or not he (the MB) continues to enjoy the confidence of the majority in the LA when such a request for dissolution is being made. If a request is made under Article 16(2), the MB has already determined that he has lost the confidence of the House; and the only way he will truly know this is by way of a vote on the floor of the LA.
Much ink has been spilt on whether the decision in Adegbenro v Akintola (in which the Privy Council held that the Governor of Western Nigeria could determine the loss of confidence by means other than a formal vote in the House) is preferable and more suitable to Malaysia than its own home-grown progeny, Stephen Kalong Ningkan where Adegbenro was strenuously and convincingly distinguished.
Furthermore, all the Court of Appeal judges quote Amir Kahar bin Tun Datu Haji Mustapha v Mohd Said bin Karuak & 8 Ors as being both relevant and salient, especially since the court appeared to have quoted Adegbenro with approval. This is disingenuous since the learned judges must know that in Amir Kahar, the Chief Minister Pairin Kitigan resigned on his own accord and the Governor was never called upon to exercise his discretion as to whether or not Kitigan had lost the confidence of the House.
While the academic community awaits the resolution of the Adegbenro versus Ningkan positions, we should not forget that this issue is really a supplementary one.
The first question that needs to be addressed by the Federal Court begins with the plain words of the Perak State Constitution. The issues are simple, if we stay focused on them. This case is not about a ruler’s hereditary prerogative powers nor even of residual royal prerogatives. It is about how to make sense of three simple provisions in the Constitution and paying respect to evidence as adduced and not that which is deduced.
If the High Court’s finding of fact is upheld, the question of whether the Sultan can determine whether or not the MB has lost the confidence of the House by a means other than by a formal vote of the House may well remain moot; at least for this case.