The sultan's role in Perak

This item is from the Edge Daily. It is written by an eminent constitutional scholar. His analysis is very sound and instructive. It is worth reading several times.

Dr Kevin YL Tan has taught constitutional law for over 20 years. He currently holds Adjunct Professorships at the Faculty of Law, National University of Singapore and the S Rajaratnam School of International Studies at the Nanyang Technological University. He holds a doctorate in law from Yale University. He is the author of Constitutional Law in Malaysia & Singapore (with Thio Li-ann); Introduction to Singapore’s Constitution and numerous articles on constitutional law in Singapore, Malaysia and the region.
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Sultan Azlan Shah's appointment of Datuk Dr Zambry bin Abdul Kadir as Perak’s Menteri Besar on 17 March precipitated a constitutional crisis that culminated in the case now before the courts. The facts of the case are by now, fairly well-known and merit only a brief recount.

Following nation-wide general elections in March 2008, the Pakatan Rakyat (PR) won 31 seats in the 59-member Legislative Assembly and Datuk Seri Mohammad Nizar bin Jamaludin was appointed Menteri Besar of Perak. The Barisan Nasional (BN) held the remaining 28 seats. In February 2009, three PR members -- DAP’s Hee Yit Foong, and PKR’s Jamaluddin Mohd Radzi and Mohd Osman Mohd Jailu -- announced their resignations from the legislative assembly, leaving each party in control of 28 seats each.

On 4 February, Nizar approached Sultan Azlan Shah to dissolve the assembly to "resolve the deadlock". The next day, the sultan met with 31 members of the assembly, and was satisfied that they supported Zambry as MB, and then informed Nizar that his request for dissolution of the state legislative assembly had been rejected. Among the 31 members present at this meeting were the three PR members who had earlier resigned. They had apparently withdrawn their resignations and transferred their support to Zambry. The sultan then informed Nizar that he no longer commanded the confidence of the state assembly and asked him to resign as MB. Zambry did not comply, and the sultan’s office issued a press statement declaring the office of MB vacant and that Zambry had been appointed the new MB since he commanded the confidence of the majority of state assembly members.

On 11 May 2009, the Kuala Lumpur High Court ruled that as there had been no vote of confidence on the floor of the state legislative assembly, Nizar remained the rightful MB of Perak. Zambry appealed against this decision and on 22 May, the Court of Appeal overturned the High Court decision and declared that Zambry had been rightfully appointed as MB.

At the time of writing, the Court of Appeal has yet to deliver the grounds for that decision. Even so, Nizar’s lawyers filed an application for leave to appeal against the Court of Appeal decision on 19 June 2009. This application is scheduled for hearing on 9 to 10 July.

Issues raised by the High Court's decision

As the High Court’s decision is the only one available, this commentary relates to this judgment. The key issues in this case are whether Sultan Azlan Shah:

a. could dismiss the Executive Council when Nizar refused to tender the Council’s resignation after the Sultan refused to his request to dissolve the Legislative Assembly;

b. was constitutionally empowered to appoint Zambry the new MB when Nizar refused to tender the resignation of the Executive Council; and

c. had a discretion to determine if Nizar had lost the confidence of the majority of members of the Legislative Assembly in any other way than by a vote on the floor of the Assembly.

Ambit of Article XXVI(6)

The key to answering these questions is Article XXVI(6) of the Perak Constitution 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 High Court Judge, Datuk Abdul Aziz J, adopted the "golden rule of interpretation" requiring a court to give the words of the Constitution a plain and ordinary reading if the words are unambiguous. Finding that Article XVI(6) of the Perak Constitution ‘contains no ambiguity whatsoever’, Abdul Aziz J held that the sultan had no power to dismiss Nizar; neither was he allowed to deem the office of Menteri Besar vacant when Nizar refused to resign. To do so, he added, would be to do ‘violence to the language’ of Article XVI(6).

The judge held that when Nizar requested the sultan to dissolve the state legislative assembly, he had not done so with "any reference to any provision in the Perak’s State Constitution" and in the absence of reference to any specific provision in the Constitution, Nizar was thus requesting the sultan to exercise his royal prerogative under Article XXXVI(2), which gave the sultan a general power to "prorogue or dissolve the Legislative Assembly."

The textual argument

A textual reading of Article XVI(6) supports the High Court’s interpretation of this key provision. Article XVI comes under the heading "The Executive Council" and the relevant provision is the sixth of its eight sub-clauses. Though headings, sub-headings and marginal notes do not technically form part of the constitutional text, they help us understand the structure and organisation of the Constitution. On the face of it, Article XVI is clearly intended to deal specifically with matters relating to the Executive Council and not generalities.

A general request for the dissolution of the state legislative assembly and the sultan’s discretion thereof is governed by Article XXXVI(2) read with Article XVIII(2)(b). That means that the sultan has a general power to dissolve the state legislative assembly and may act in his discretion in withholding a request for dissolution. It is clear that such a general request for dissolution does not fall under Article XVI(6), which is to be deployed in a very specific instance.

This is immediately discernible when we read it sequentially: A MB who has already ceased to command the confidence of the majority of the members of the Legislative Assembly must tender the resignation of the Executive Council, but only if the sultan exercises his discretion to refuse to dissolve the Legislative Assembly upon that MB’s request for dissolution.

Following from this reading, it is clear that the determination as to whether and when the MB has lost the confidence of the majority of the members of the state legislative assembly – as opposed to whether the MB was likely to command the confidence of the majority of LA members under Article XVI(2 – is a matter for the state legislative assembly itself. It is not an executive decision.

The argument from history

Does history support the High Court’s reading of Article XVI(6)? Back in 1956, various representations were made to the Reid Commission on the status and powers of the sultan and on his power to act. Back then, debates still raged over what necessary constitutional amendments needed to be made to make the Sultans "constitutional rulers" and whether the MB should hold office at the sultan’s pleasure.

What is clear from the resulting deliberations is that the Commission was determined to ensure that (a) the organisation of government in the states mirrored that of the Federation; and (b) the Malay Rulers should no longer preside over their state executive councils and involve themselves in executive decision-making save in very limited instances. These concerns led the Commission to set out the meaning of ‘constitutional ruler’ in paragraph 177 of their Report:

… a constitu­tional Ruler is a Ruler with limited powers, and the essential limitations are that the Ruler should be bound to accept and act on the advice of the Menteri Besar or Executive Council, and that the Menteri Besar or Executive Council should not hold office at the pleasure of the Ruler or be ulti­mately responsible to him but should be responsi­ble to a parliamentary assembly and should cease to hold office on ceasing to have the confidence of that assembly. (emphasis added)

By the Commission’s reckoning, there was no intention to give the constitutional ruler a power to dismiss the MB or the Executive Council at will. Further support can be gleaned from a memorandum on ‘The State Constitutions’ prepared by Sir Ivor Jennings (CO 889/2 p. 156 dated 31 Aug 1956) – certainly the most important and influential member of the Commission – when he noted:

The Rulers will become constitutional monarchs and executive government must be placed under the control, direct or indirect, of the State Councils. It is assumed that the Ruler … would appoint a Menteri Besar … who would have, or hope to obtain, a majority in the State Council. … It is assumed that the Ruler would have power, on the advice of the Menteri Besar, to dissolve the State Council, but that, like the Queen, he need not accept the advice. The Ruler would not be empowered to dissolve without advice, though, of course, he could always appoint a new Menteri Besar who was likely so to advise because he had no majority.

Historical precedent is consonant with the High Court’s reading of Article XVI(6). The sultan was entitled to refuse a request to dissolve the state legislative assembly, be it a general request – for example when early elections are to be called or where the state legislative assembly is sharply divided over a key policy or the budget – or a specific request under Article XVI(6) after the MB has already lost the confidence of the majority of the state legislative assembly.

Dismissal of the Executive Council

Both the textual and historical arguments support the High Court’s reading of Article XVI(6). However, this does not resolve the question as to whether the sultan was empowered to (a) declare the office of the MB and Executive Council vacant; and (b) following from that declaration, proceed to appoint a new MB.

The Perak Constitution is not explicit on this point. What is clear is that the Executive Council is appointed by the sultan on the advice of the MB. Although Article XVI(7) states that members of the Executive Council hold their office at the sultan's pleasure, Article XVIII makes it clear that the sultan may not dismiss them at a whim, but only upon the advice of the MB. This reading is borne out by the Reid Commission Report that stated (at paragraph 181):

As the Executive Council is to be collectively responsible to the Legislative Assembly the appointment of its members must lie in the hands of the Mentri Besar and a new Mentri Besar must be free to appoint a new Exec­utive Council in the same way as the Prime Min­ister appoints his Ministers. This result follows from our recommendation that members of the Executive Council should hold office at the plea­sure of the Ruler because in appointing or termi­nating the appointment of a member of the Exec­utive Council the Ruler must act on the advice of the Mentri Besar.

What happens if an MB, who has lost the confidence of the majority of the state legislative assembly, refuses to resign his position and that of the Executive Council after the sultan rejects that MB’s request for a dissolution of the state legislative assembly? This happened in Kelantan in 1977 when its MB, Datuk Mohamed Nasir refused to resign even though he had lost a vote of confidence motion in the Kelantan state legislative assembly, been sacked by his own party, and had his request for dissolution of the assembly refused by the Sultan of Kelantan. The impasse led to the declaration of a state of emergency by the Federal Government that lasted three months, after which the state legislative assembly was dissolved for fresh elections.

Alas, this single precedent is not particularly instructive. No legal solution was possible and the situation was resolved politically by the sultan dissolving the assembly and allowing fresh elections to be called. Perhaps, all rulers and governors should, as a matter of course, accede to requests by their respective MBs to dissolve the legislative assembly for fresh elections to be called unless the ruler has a premonition that a calamity might befall the state if he so acceded.

That way, new mandates are quickly determined and the business of government can proceed once a new leadership is established. Indeed, the Sultan of Perak supported this view of a ruler’s powers when he was Lord President. In his 1982 essay, ‘The Role of Constitutional Rulers’, he opined:

… 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.

This point was picked up by counsel for Nizar and cited with approval by the High Court.

The sultan has no explicit power to dismiss an MB under the Perak Constitution. Indeed, neither is the Yang di-Pertuan Agong empowered to dismiss a Prime Minister under the Federal Constitution. Originally, the Reid Commission had prepared a draft Article 36(2) which, among other things, gave the Yang di-Pertuan Besar power to remove the Prime Minister from office. However, as the High Court duly noted, the words were changed when the present Article 43(4) was promulgated. This provision is almost word-for-word the same as Article XVI(6) of the Perak Constitution save for the nomenclature used.


Conclusion

We return to the three questions posed at the start of this article. If, as the High Court rightly held, Nizar’s request for to dissolve the state legislative assembly was made under general provisions rather than under Article XVI(6), then the sultan had no power either to declare the office of MB vacant nor to dismiss the members of the Executive Council. And since the sultan had no power to declare the office of MB vacant, he was correspondingly prevented from exercising his discretion under Article XVI(2) to appoint Zambry as MB and to act on Zambry’s advice to appoint members to the Executive Council.

The third question posed – whether the sultan had a discretion to determine if Nizar had lost the confidence of the majority of state legislative assembly members – does not arise for consideration on the facts of this case. The question as to whether or not a show of confidence or support can be demonstrated in any way other than by a formal vote on the floor of the House is moot since the sultan is not being asked to exercise his discretion under Article XVI(2) to determine support or confidence for the purposes of appointing a new MB.

Even if the sultan was called upon to exercise his discretion on this matter, I would argue that the best way to determine confidence (or otherwise) in any individual as MB is to have a formal vote on the floor of the state legislative assembly. This is especially crucial in a political system that is not constrained by anti-hopping laws, and which allows assemblymen and assemblywomen to transfer loyalties at a drop of a hat. A formal vote will require formalities to be met, membership of political parties to be ascertained, and resignations or change of affiliations registered. Most importantly, it will provide for certainty.

One possible way to avoid future confusion over the sultan’s discretionary powers with respect to requests for a dissolution, might be to require the MB to state clearly in his request for dissolution, whether his doing so under the general provisions to which Article XXXVI(2) applied or because he has lost the confidence of the majority of the state assembly members under Article XVI(6). That way, there can be no issue of how the sultan is to deploy his discretion. This can be done as a matter of constitutional practice and will not require a constitutional amendment.

In the meantime, the problem remains. Two men claim to be the rightful MB of Perak and two groups claim to be members of the Executive Council. As scholars of constitutional law and keen observers of Malaysian politics, we anxiously await the Court of Appeal’s written judgment as we eagerly await the wisdom of the Federal Court to find a legal solution to an essentially political issue.