One of the most pertinent legal questions to be answered in relation to the recent change of government in Perak is whether the loss of confidence in former Pakatan's Menteri Besar Datuk Seri Nizar Jamaluddin can only be expressed through vote of no confidence in the State Legislative Assembly.
Two local cases on the same issue are relevant here. First is Stephen Kalong Ningkan v. Tun Abang Haji Openg & Tawi Sli [1966] 2 MLJ 187. Stephen was former Chief Minister of Sarawak who was removed from his office by the then Sarawak Governor Tun Abang Haji Openg on the ground that the former had lost the “confidence” of a majority of members of the Council Negri. The Governor formed his opinion on the basis of a letter signed by 21 out of 42 members of the Council Negeri expressing their loss of confidence in Stephen. The Governor then proceeded to appoint Penghulu Tawi Sli as the new Chief Minister.
Article 7(1) of the Sarawak Constitution said:
If the Chief Minister ceases to command the confidence of a majority of the members of the Council Negri, then, unless at his request the Governor dissolves the Council Negri, the Chief Minister shall tender the resignation of the members of the Supreme Council (Cabinet).
The question is whether lack of confidence may only be demonstrated in the legislature. Harley Ag CJ held that “confidence” was to be tested on the floor of the legislature. The learned judge departed from the Privy Council decision in Adegbenro v. Akintola, a Nigerian case, which considered a letter signed by a majority of the members of House of Assembly expressing their loss of support in the Premier as a sufficient proof of loss of support.
Distinguishing Adegbenro, the learned judge said:
“The measurement in Nigeria was a measurement of "support", not of "confidence". The Sarawak Constitution is dated subsequent to the decision of Adegbenro v. Akintola, and it does seem to me that the "confidence" of a majority of members, being a term of art, may imply reference to a vote such as a vote of confidence or a vote on a major issue”.
The second case was Datuk Amir Kahar Tun Mustapha v. Tun Mohamed Said Keruak [1994] 3 MLJ 737. Datuk Amir Kahar was a member of Sabah State Cabinet formed after Parti Bersatu Sabah (PBS) won the Sabah state election in 1994. As a result of defection of several PBS assemblymen to Barisan Nasional, Chief Minister Pairin Kitingan lost the confidence of a majority of the members of State Assembly and subsequently tendered his resignation. There had been no vote of no confidence or defeat of substantial bill in the State Assembly to signify the loss of confidence in Pairin.
In this case the Judge rejected the notion that there is any difference between “confidence” and “support” and that the lack of confidence can only be expressed through vote of no confidence in the legislature. He said:
“… once a Chief Minister in fact knows that he has lost the confidence of a majority of the members of the Assembly, he should not wait for a vote of no confidence to be formally tabled in the Assembly but should immediately take the honorable way out by tendering the resignation of his Cabinet. Under the circumstances, if the Chief Minister refuses or does not tender the resignation of the members of the Cabinet which includes himself, or if he tenders the resignation of himself alone, the fact remains that the Cabinet is dissolved on account of him losing the confidence of a majority of the members of the Assembly and it is not necessary therefore for the Yang di-Pertua Negeri as a last resort to remove the Chief Minister and the other members of his Cabinet. This is not only the effect of the Constitution but it is the established convention.”
Commenting on these two cases, constitutional law expert Professor Andrew Harding in his book “Law, Government and the Constitution in Malaysia” (1996) said:
“The confinement of the meaning of words such as ‘support’ or ‘confidence’ to the operation of politics on the floor of the legislature is in fact problematical, because, if advice to summon the legislature is not forthcoming - and a Chief Minister who may have lost support will not be eager to summon it - there will be no opportunity for the politics of the legislature to come into operation, and a stalemate will result. To this extent, the Ningkan decision is unfortunate, and a service is done by Kahar Mustapha in casting doubt on the reasoning, if not the result, of the Ningkan case.’
Two local cases on the same issue are relevant here. First is Stephen Kalong Ningkan v. Tun Abang Haji Openg & Tawi Sli [1966] 2 MLJ 187. Stephen was former Chief Minister of Sarawak who was removed from his office by the then Sarawak Governor Tun Abang Haji Openg on the ground that the former had lost the “confidence” of a majority of members of the Council Negri. The Governor formed his opinion on the basis of a letter signed by 21 out of 42 members of the Council Negeri expressing their loss of confidence in Stephen. The Governor then proceeded to appoint Penghulu Tawi Sli as the new Chief Minister.
Article 7(1) of the Sarawak Constitution said:
If the Chief Minister ceases to command the confidence of a majority of the members of the Council Negri, then, unless at his request the Governor dissolves the Council Negri, the Chief Minister shall tender the resignation of the members of the Supreme Council (Cabinet).
The question is whether lack of confidence may only be demonstrated in the legislature. Harley Ag CJ held that “confidence” was to be tested on the floor of the legislature. The learned judge departed from the Privy Council decision in Adegbenro v. Akintola, a Nigerian case, which considered a letter signed by a majority of the members of House of Assembly expressing their loss of support in the Premier as a sufficient proof of loss of support.
Distinguishing Adegbenro, the learned judge said:
“The measurement in Nigeria was a measurement of "support", not of "confidence". The Sarawak Constitution is dated subsequent to the decision of Adegbenro v. Akintola, and it does seem to me that the "confidence" of a majority of members, being a term of art, may imply reference to a vote such as a vote of confidence or a vote on a major issue”.
The second case was Datuk Amir Kahar Tun Mustapha v. Tun Mohamed Said Keruak [1994] 3 MLJ 737. Datuk Amir Kahar was a member of Sabah State Cabinet formed after Parti Bersatu Sabah (PBS) won the Sabah state election in 1994. As a result of defection of several PBS assemblymen to Barisan Nasional, Chief Minister Pairin Kitingan lost the confidence of a majority of the members of State Assembly and subsequently tendered his resignation. There had been no vote of no confidence or defeat of substantial bill in the State Assembly to signify the loss of confidence in Pairin.
In this case the Judge rejected the notion that there is any difference between “confidence” and “support” and that the lack of confidence can only be expressed through vote of no confidence in the legislature. He said:
“… once a Chief Minister in fact knows that he has lost the confidence of a majority of the members of the Assembly, he should not wait for a vote of no confidence to be formally tabled in the Assembly but should immediately take the honorable way out by tendering the resignation of his Cabinet. Under the circumstances, if the Chief Minister refuses or does not tender the resignation of the members of the Cabinet which includes himself, or if he tenders the resignation of himself alone, the fact remains that the Cabinet is dissolved on account of him losing the confidence of a majority of the members of the Assembly and it is not necessary therefore for the Yang di-Pertua Negeri as a last resort to remove the Chief Minister and the other members of his Cabinet. This is not only the effect of the Constitution but it is the established convention.”
Commenting on these two cases, constitutional law expert Professor Andrew Harding in his book “Law, Government and the Constitution in Malaysia” (1996) said:
“The confinement of the meaning of words such as ‘support’ or ‘confidence’ to the operation of politics on the floor of the legislature is in fact problematical, because, if advice to summon the legislature is not forthcoming - and a Chief Minister who may have lost support will not be eager to summon it - there will be no opportunity for the politics of the legislature to come into operation, and a stalemate will result. To this extent, the Ningkan decision is unfortunate, and a service is done by Kahar Mustapha in casting doubt on the reasoning, if not the result, of the Ningkan case.’
If we were to follow the decision in Kahar Mustapha, there are no two Menteri Besars in Perak at the moment. The former MB had vacated his position, eventhough he refused to honorably tender his resignation, and his cabinet dissolved by virtue of him losing the confidence of a majority of the members of the State Legislative Assembly.
The one and only legitimate Perak MB at the moment is Barisan's Datuk Dr. Zambry Abdul Kadir who was appointed by the Sultan of Perak to the position after His Highness formed his opinion that Zambry commands the support of a majority of the members of the State Legislative Assembly.
It should also be noted that the Sultan of Perak, Sultan Azlan Shah, who himself was a former Chief Justice, had summoned all 31 assemblymen to have audience with him to ascertain whether or not they had confidence in Zambry as the new MB. No one can say that the Sultan had been cavalier in exercising his discretionary power under the state constitution in the appointment of the MB.
Whether we like it or not, this is the rule of political game in the Westminster style of parliamentary democracy and constitutional monarchy. Abiding by this rule is also democratic.
