by Art Harun
On last year's disagreement between the Terengganu palace and the BN's leadership over the choice of the Menteri Besar, I wrote:
"The notion that the Rulers are a part of check and balance mechanism to the wide powers of the executives is to me, wishful at best. The reality is the Rulers are not part of the administration of the country.
The check and balance mechanism embedded into our system (and every democracy with a constitutional monarch) only consists of the executive, legislative and of course, the judiciary .
To adopt a literal approach would vest a certain level of absolute power in the Ruler where such power does not exist in the first place. Can we imagine a situation where the Ruler may decide mid-term to change an MB because he thinks that MB does not command the confidence of the majority anymore?
We are now riding the populist wave of a political reform yet unseen before. It is a result of deep rooted anger against the BN government. But lets not allow our emotion to colour our judgement by creating, or allowing to create, a dangerous precedent, a precedent which we all may live to regret later."
The looming constitutional crisis in Perak now underscores my sentiment exactly.
Article 16 of the Perak Constitution says that the Sultan shall appoint the Executive Council ("EC"). He must first appoint as Menteri Besar from the members of the Legislative Assembly who "in his judgment is likely to command the confidence of the majority of the members of the Assembly." Then on the advice of the MB, the Sultan shall appoint other members of the EC.
We stop at this juncture to consider this provision. The Sultan did not have to ensure that the potential MB does command the confidence of the majority. The word "likely" in the above provision gives a certain level of subjectivity to the whole process. And quite how the Sultan was to perform that function is not spelt out.
Article 16 (6) is very important. It says:
"If the MB 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."
If we could now look at this provision closely. There is no subjectivity here. It does not say, for example, "if the Sultan is of the opinion that the MB ceases to command the confidence of the Assembly", or "if it is likely that the MB has ceased to command the confidence of the Assembly". It says clearly that "if the MB ceases to command". That means this provision kicks in only and only if, it could be factually proven that the MB has ceased to command the confidence of the Legislative Assembly. In other word, the Sultan is not imbued with the power to make his own subjective judgment over this fact and matter . For this provision to operate, it must be established as a fact that the MB has ceased to command the confidence of the Assembly.
How is that fact established then? In countries practising the Westminster typed democracy, this fact is established with a vote of no confidence on the floor of the Assembly.
Next to be examined is Article 16 (7). It says:
"Subject to Clause (6) a member of the Executive Council other than the MB shall hold office at His Royal Highness' pleasure, but any member of the Council may at any time resign his office."
It is of paramount importance to note that only the MB does not hold office at the pleasure of the Sultan. From a literal reading of this article, it is clear that the Sultan may therefore sack any member of the Executive Council BUT NOT THE MB.
Can the Sultan Ask the MB to Resign?
With all due respect to HRH the Sultan of Perak, I don't think the Sultan has the power to ask for the resignation of the MB. It has been argued elsewhere that the provision of the Interpretation Act 1948 would give the power to the Sultan to dismiss the MB. While I concede that section 94 of that Act gives the power to dismiss in every instant where a power to appoint exists, it must be remembered that the Interpretation Act does not apply "where there is something in the subject or context inconsistent with or repugnant to the application" of the Interpretation Act.
Where is the context inconsistent with the application of the Interpretation Act here? The answer lies with Article 16 (7) above. It is clear that the MB does not hold office at the pleasure of the Sultan as opposed to the other members of the Assembly. Had it been intended that the Sultan should have the power to dismiss the MB as well as the other members of the Executive Council, Article 16 (7) would not have made such a glaring and clear exception so as to expressly preclude the MB from the operation of that Article.
Excersise of the Sultan's Powers
There are 2 broad categories of powers which the Sultan is vested with. The first type are powers which the Sultan shall act in accordance with the advice of the Executive Council. There is no discretionary power here. Whenever the Sultan is advised to exercise these powers, the Sultan has no choice but to exercise that power in accordance with the advice given.
Secondly there are powers which the Sultan may exercise in his discretion. These powers include:
power to appoint the MB
power to withhold his consent to a request for the dissolution of the Assembly.
Here lies the problem. The MB has requested the Sultan to dissolve the Assembly but the Sultan has refused to do so and had asked the MB to resign instead.
Was the Sultan Right?
A case law, decided by our Court in 1966 bears important resemblance to the crisis in Perak now. In Stephen Kalong Ningkan v. Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187, the Governor of Sarawak received a letter signed by 21 members of the Council Negri (equivalent to the Legislative Assembly) expressing no confidence in Stephen Kalong Ningkan as the Chief Minister. The Governor then asked Stephen to resign. Stephen refused to resign. The Governor then declared that Stephen and all the members of the Supreme Council (equivalent to the Executive Council) as having ceased to hold office. A new Chief Minister was then appointed by the Governor. The case ended up in the High Court where among others, a declaration that the purported dismissal of Stephen as the Chief Minister was ultra vires the Constitution and was therefore null and void.
The Sarawak Constitution contain provisions which are almost identical to the provisions of the Perak Constitution.
