Reflecting On the Law
By Dr.Shad Saleem Faruqi
Wednesday March 25, 2009
The legal skirmishes triggered by the four Perak assemblymen who defected have sullied the reputations of several hallowed institutions and opened up new legal frontiers where no Malaysian has up to now travelled.
THE four Perak Assemblymen who slithered down the treacherous slope of defections could not have anticipated the political and legal avalanche they have triggered.
The punches and counter-punches and the legal skirmishes over issues of procedure and substance are opening up new legal frontiers where no Malaysian has up to now travelled.
Several constitutional institutions, including the state’s Sultan, the Election Commission, the Attorney-General’s office, the police, the Malaysian Anti-Corruption Commission, the State Speaker and the Secretary to the State Assembly, have become embroiled in the controversy and have had their good names sullied.
The judiciary has not been spared.
When the case first reached the courts, a Judicial Commissioner gave judgments that defy understanding. To have a Judicial Commissioner and not a senior High Court judge presiding over this novel constitutional case was indeed disappointing.
Hearings were not in open court but in chambers. The Speaker of the Perak Assembly was declared to be a public servant despite indisputable legal evidence that he is exempted from such a definition.
The Speaker was not allowed to be represented by private lawyers. He was not even allowed to represent himself!
There was an unbelievable ruling that no conflict of interest existed in the state legal adviser representing the unwilling Speaker against the state government!
These initial judicial missteps were fortunately corrected on appeal but they left a bad feeling and sullied the reputation of a hallowed institution whose resurgence we were all praying for.
Defections: As opposed to the stability of the American presidential system, governments in parliamentary democracies often rise and fall because of political defections.
Unfortunately, the right to disassociate and re-associate is part of the fundamental right to association under the Federal Constitution’s Article 10(1) (c) and the decision in Nordin Salleh (1992).
We need a constitutional amendment to Articles 10(1) and 48(6). There are eminent legal models available in other Commonwealth countries. MPs and Assemblymen who hop midstream should be required to vacate their seats and seek a fresh mandate from their constituency.
Dissolution: The right to refuse a premature dissolution is an undoubted constitutional discretion of the Sultan under Article 18(2) (b) and 36(2) of the Perak Constitution.
We have instances in Kelantan in 1977 and in Sabah in the 90s when requests by MBs for premature dissolution were politely turned down. Judicial authority in Datuk Amir Kahar (1995) confirms the non-reviewability of this discretion.
Even if it is argued that the Sultan was bound by constitutional convention to pay heed to the advice of the then beleaguered MB, it must be noted that constitutional conventions are not law. They are rules of political morality that are non-enforceable in a court: Government of Kelantan v Government of Malaya (1963).
Dismissal of MB: This poses more complex issues. Article 16(7) of the Perak Constitution implies that the Sultan has no power to dismiss an MB. An MB’s cessation of office must come about by resignation under Article 16(6):
“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 Sarawak case of Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli (1966) ruled that lack of confidence may be demonstrated only by a vote of no-confidence in the Council Negeri. Factors outside the Council Negeri are irrelevant.
The High Court will have to decide whether to follow Ningkan or to distinguish it on many grounds, among them, that in Sarawak in 1966 the Assembly was in session when the Governor sacked Ningkan. In Perak, the Assembly was in adjournment and a vote on the floor was, therefore, not possible.
The High Court may also note that Article 16(6) does not make any explicit reference to a vote of no-confidence in the Assembly. It uses the words “confidence of the majority of the members of the Assembly”.
The Privy Council in Adegbenro v Akintola (1963) and the Sabah High Court in Datuk Amir Kahar (1995) have held that factors other than a vote of no confidence can be taken note of in determining the question of confidence, and that there is no limitation to the consideration of factors outside the Assembly.
There was an additional complication. The Speaker of the Assembly declared that the hoppers had ceased to be members of the Assembly. With them excluded, Nizar disputed the loss of confidence and therefore refused to resign under Article 16(6).
In such a stalemate, did the Sultan have a residual, prerogative power to dismiss Nizar? In addition could His Highness rely on section 47 of the Interpretation Act that the power to appoint includes the power to dismiss? The court has to decide.
Appointment of MB: This is a discretionary function but is controlled and structured by constitutional guidelines. The Sultan has to appoint someone who, in his opinion, is likely to command the confidence of the State Assembly.
If there is a clear-cut leader with the requisite numbers, the discretion of the Ruler is merely nominal. But in an Assembly where no one has a clear majority, (a “hung Assembly”) the Sultan’s personal discretion acquires great significance.
In this case, the Sultan was obviously of the view that Zamri had the requisite numbers and therefore swore him in. The Sultan relied on face to face, separate interviews with the actors involved. The court will have to determine whether this manner of determination is legally justified.
Along with the above contentious issues there is a whole range of controversies that the Perak crisis has engendered.
Powers of Sultan: Can a Sultan be sued in the courts for his official acts? Is a threat to sue tantamount to sedition or treason?
Speaker’s powers: If open-dated resignation letters have no effect, as was determined in Datuk Ong Kee Hui v Sinyium (1983), can the Speaker still rely on them to declare that four Assembly seats have fallen vacant?
Is the Election Commission bound by the rulings of the Speaker on this point or can it decide on the issue independently?
The Speaker of an Assembly is indeed the master of proceedings and procedures in his Assembly, but does his power go so far as to declare seats vacant and to deprive members of their legal right to attend? Is his decision absolutely unimpeachable in any court?
In India, courts do not refrain from pronouncing on the validity of decisions in the House if human rights or constitutional issue are involved.
If the Assembly was not under prorogation but merely under adjournment, can the Speaker convene it on his own without an order from the Sultan?
Who must issue the summons, the Speaker or the Secretary to the Assembly? Does the Speaker have the power to dismiss a disobedient Assembly Secretary?
Privileges committee: The committee has undoubted powers to try members for contempt. But its decisions are not final and any recommendation to dismiss, suspend or discipline members must be confirmed by the Assembly.
Immunity of members: There is no legal bar to the Assembly meeting outside its official premises. The constitutional issue is whether those, including the police, who obstructed the Assembly from meeting are liable to punishment by the Assembly for contempt?
Likewise, are the police and the Anti-Corruption Commission guilty of serious breach of the privileges of the Assembly by questioning the Speaker and Privileges Committee members for their official conduct?
These are serious triable issues. Our answers to them must not be based on expediency or political partisanship but on well established principles of constitutional law.
Dr Shad Faruqi is Professor of Law at Universiti Teknologi MARA.