by Kim Quek
Is it possible that a slight difference in wordings between the state constitution of Perak and the federal constitution pertaining to the loss of confidence of Mentri Besar/prime minister has misled the Sultan of Perak into thinking that the constitutional requirement necessitating the Mentri Besar to resign has been fulfilled?
Judging from the Sultan’s statement explaining his decision to appoint a new mentri besar that seems to be the case. Let me quote the relevant paragraph of the Sultan’s statement explaining why Mentri Besar Nizar Jamaluddin must step down:
After meeting all the 31 assemblymen, DYMM Paduka Seri Sultan of Perak was convinced that YAB Datuk Seri Mohammad Nizar Jamaluddin had ceased to command the confidence of the majority of the State Assembly members.
This statement would have been a correct interpretation of the constitution if applied to the Prime Minister, but an incorrect interpretation, if applied to the Mentri Besar. This is because the loss of confidence of the majority is prescribed differently in the two constitutions (relevant parts of the constitutions are shown at the end of this article).
Under the federal constitution, the loss of confidence refers to members of the House of Representatives whereas under the state constitution, it refers to the Legislative Assembly. This means that while the ascertainment of loss confidence can conducted outside Parliament (such as collective appearance before the Agung) in the federal case, it cannot be repeated in state case.
In the Perak state constitution, the loss of confidence must be ascertained within the state assembly, meaning through a vote of no confidence in the state assembly.
The reason why I said the Sultan could have been misled is that in his official statement, he mentioned the confidence of the majority of the State Assembly members. Notice the statement refers to State Assembly members, and not to State Assembly.
Under the circumstances, the Mentri Besar was right when he said that he was legally obliged to step down only when a motion of no confidence on him has been passed in the state assembly, but not otherwise.
And since the Mentri Besar has not resigned, any appointment of another Mentri Besar will be ultra vires the state constitution.
Perhaps His Royal Highness should have spared more than a few minutes to take another look at the two constitutions, so as to avert a major constitutional crisis?
The relevant extracts from the two constitutions are as follows:
Federal constitution: Article 43 (4): If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.
Perak state constitution: Artikel XVI(6): If the Mentri Besar ceases to command the confidence of the majority 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.
Remark by Sakmongkol:
Reading these two clauses, we would come to the assertions like Tengku Razaleigh did. That this whole business of political coup d’état is inherently wrong. I shall be writing on this at another time. Reading the Perak state constitution, being an ex ADUN myself, I would have thought the term Legislative Assembly would mean, the Dewan must called to order and then decide the MB’s fate.
Hence like Tengku Razaleigh said, "Defections are not the basis for the formation of a government. Elections are." And further in his article:
Similarly, the Constitution provides for a definitive way to test if the Chief Minister or the Prime Minister commands a majority in the dewan or in Parliament, as the case may be. We put the question to a vote of confidence on the floor of the Dewan. Only the answer of the assembly counts. It doesn’t matter how many sworn statements, defections, press conferences, and declarations you have, nor what forms of advertisement, display, inducement or force you bring to bear on the question.
