INTRODUCTION
Dr Lim Teck Ghee
The main arguments by lead counsel for Perak Mentri Besar Nizar, Tuan Haji Sulaiman have been referred to in the Judgments of the High Court and Court of Appeal. In this post, we provide to the Malaysian public details of the submissions made by Nizar’s counsels at the Federal Court. They include part of fresh submissions at Federal Court together with reproduction of the submissions of Mr Chan Kok Keong and the presentation made by Haji Sulaiman Abdullah for Nizar's full legal team.
For members of the public who were not in court on 5 November 2009 these notes provide an insight into various issues of constitutional significance that have not been carried by the mainstream media. Needless to say, the notes are of public interest as well as having legal and constitutional importance regardless of the outcome of the appeal.
Mr Chan’s piece appears first as it was presented as part of the opening submission, and is followed by the full presentation.
The submission by Mr Chan is premised on only one point i.e. that HRH the Sultan, being a constitutional monarch can only act upon ADVICE in all political matters except where the Constitution expressly says that he has a personal discretion.
As the question of who controls the political equation is a matter for the politicians to decide, HRH should accept the advice of MB Nizar when he informs HRH that there is a deadlock. Constitutionally, HRH cannot reject that advice and is also NOT permitted to act upon advice given by anyone else.
Mr Koh’s piece is a transcript of his Reply to the submission of the respondent's (Zambry Abd Kadir) lead counsel and the submission of the Attorney-General. Koh reiterates MB Nizar’s principal argument that the text of the Laws of the Constitution of Perak must be given its proper reading and interpretation.
In the text, there is no room for any doubt that the office of MB cannot be deemed vacant. He construes the language and the words regarding the resignation of the office of MB and the language of Part II of the Constitution whereby in certain instances, the Constitution deems vacant an office and argues that if it is the intention of framers of Perak constitution to have a deeming vacant power, it can introduce that with ease.
The submission also makes an important point that in the event of any difficult issues involving the questions of the Constitution, the matter can be referred to the Federal Court for an open court determination rather than have the HRH being drawn into the political morass.
(Updated & revised Nov 26, 2009)
Part 2: Lawyer’s submission on Perak MB case (2)
Notes of Submission by Mr Chan Kok Keong
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO: 01 – 11 - 2009 (W) ANTARA DATO’ SERI IR. HJ MOHAMMAD NIZAR BIN JAMALUDDIN ... PERAYU DAN DATO’ DR ZAMBRY BIN ABD KADIR ... RESPONDEN DAN PEGUAM NEGARA MALAYSIA ... PENCELAH (Dalam Perkara Mahkamah Rayuan, Rayuan Sivil No. W-01-112-2009 Antara Dato’ Dr Zambry Bin Abd Kadir ... Perayu Dan Dato’ Seri Ir. Hj Mohammad Nizar Bin Jamaluddin ... Responden Dan Peguam Negara Malaysia ... Pencelah yang diputuskan oleh Yang Arif Tuan Hakim Dato’ Md Raus bin Sharif, HMR Yang Arif Puan Hakim Datuk Zainun bt Ali, HMR Yang Arif Tuan Hakim Dato’ Ahmad bin Haji Maarop, HMR pada 22.5.2009) NOTES OF SUBMISSION BY MR CHAN KOK KEONG OF COUNSEL FOR THE APPELLANT, MADE ON 5.11.2009 TO THE FEDERAL COURT Adding on to what has so far been said by Tuan Haji Sulaiman and Mr Philip Koh: 1. I submit that HRH, as a constitutional monarch, has only two functions i.e. to select a Menteri Besar (“MB???) after the elections and to refuse a dissolution. 2. On all other matters, apart from Islam and the Conference of Rulers, he acts on advice. Such advice is offered by either the MB or the EXCO. 3. This may appear to be obvious to any 1st year law student( as pointed out by Ghazali FCJ) but the point is important to this appeal. Article XVI(6) of the Constitution is best understood in the light of the constitutional function of HRH. 4. At the risk of repetition, HRH reigns and does not rule. HRH’s government runs the day-to-day affairs of the State. HRH stays clear and far away from politics. 5. As Walter Bagehot says, the Sovereign has 3 roles:- (i) to counsel; (ii) to encourage; and (iii) to warn. |
Submission by the appellant's legal team, presented by Haji Sulaiman Abdullah
Dalam Mahkamah Persekutuan Malaysia (Bidang Kuasa Rayuan) Rayuan Sivil No. W-01-11-2009 (W) ANTARA DATO’ SERI IR. HJ MOHAMMAD NIZAR BIN JAMALUDDIN Appellant DAN DATO’ DR. ZAMBRY BIN ABD. KADIR Respondent DAN ATTORNEY GENERAL MALAYSIA Intervenor _________________________________________________ Excerpts of APPELLANT’S OUTLINE SUBMISSION other than that submitted to Court of Appeal _________________________________________________ If it pleases this Honourable Court, This is the Appellant’s Outline Submission filed in relation to the Appellant’s appeal in Notice of Appeal dated 20.7.2009 herein. I. The Judicial Review Application at the High Court 1. On 6.4.2009, the Respondent (hereinafter referred to as “Nizar???) filed the Judicial Review Application (JR Application) (which is the subject of this appeal) after having been granted leave by the High Court (on 3.4.2009). Among others, Nizar sought to clarify his position as the Menteri Besar of Perak and to declare that the Respondent (hereinafter referred to as “Zambry???) had unlawfully usurped the office of the Menteri Besar of Perak. In particular, the main orders sought were: 1.1 A declaration that Nizar is and was at all material times the Menteri Besar of Perak. 1.2 A declaration regarding the interpretation of Article XVI(6) of the Laws of the Constitution of Perak (the Perak Constitution) that in the circumstances where: i) the Menteri Besar of Perak desired, and advised that the Perak Legislative Assembly be dissolved; ii) the Perak Legislative Assembly has not been dissolved; iii) no motion of no confidence against the Menteri Besar of Perak in the Perak Legislative Assembly has been tabled and adopted; and iv) no resignation from the office of the Menteri Besar of Perak has occurred; whether the office of the Menteri Besar of Perak may be and/or had been vacated. 1.3 A writ of quo warranto be issued to Zambry to show cause and to give information how and under what authority Zambry purports to hold the office of the Menteri Besar of Perak and purports to act and/or carry out the responsibilities, functions and duties of the Menteri Besar of Perak. 1.4 A declaration that Zambry has no right and/or does not hold the office of the Menteri Besar of Perak and is not the Menteri Besar of Perak at any material time. 1.5 An injunction to stop Zambry and/or his agents and/or his servants from acting and/or carrying out the responsibilities, functions and duties of the Menteri Besar of Perak. See pages 320-324 of the Record of Appeal. 2. Nizar avers that the following are the relevant facts in the JR Application: 2.1 Nizar had advised and sought the dissolution of the Perak Legislative Assembly to avoid a possible deadlock in the administration of the affairs of the State in view that 3 members of the Assembly had resigned; 2.2 the Perak Legislative Assembly has not been dissolved; 2.3 no motion of no confidence against Nizar (as the Menteri Besar) in the Perak Legislative Assembly has been tabled or adopted; and 2.4 Nizar has not resigned from the office of the Menteri Besar of Perak. See Nizar’s Affidavit in Support affirmed on 12.2.2009 at pages 341-356 of the Record of Appeal. 3. The primary legal question in the JR Application which was to be decided at the High Court was framed as a declaration in prayer (2) of the JR Application as follows: Perintah deklarasi berkenaan tafsiran Fasal XVI(6) Undang-Undang Tubuh Kerajaan Negeri Perak bahawa dalam keadaan di mana: (i) Menteri Besar Negeri Perak Darul Ridzuan ingin, dan telah memberi nasihat, untuk pembubaran Dewan Perhimpunan Undangan Negeri Perak; (ii) tidak terdapat pembubaran Dewan Perhimpunan Undangan Negeri Perak; (iii) tidak terdapat usul tidak percaya yang diambil dan diterimapakai dalam dan oleh Dewan Perhimpunan Undangan Negeri Perak terhadap Menteri Besar Negeri Perak Darul Ridzuan; dan (iv) tidak terdapat perletakan jawatan Mentri Besar Negeri Perak Darul Ridzuan; samada jawatan Menteri Besar Negeri Perak Darul Ridzuan boleh dan/atau telah dikosongkan. 4. Posed in another way, we reason that: 4.1 The appointment of a person to the office of the Menteri Besar may only be valid if the said office is vacant. If the office is not vacant, there cannot be another legal appointment to the office, as there cannot be two persons holding one office of the Menteri Besar. 4.2 On the facts of this case and Article XVI(6) of the Perak Constitution, the office of the Menteri Besar will only be vacant if Nizar resigns or is dismissed. Nizar has not resigned. However, Zambry contends that the office of the Menteri Besar is vacant because Nizar must resign and because Nizar did not resign, the office has been “rendered??? vacant - in other words, Nizar had been dismissed from office. See paragraphs 17(a)-(b), Zambry’s 1st Affidavit in Reply affirmed on 10.4.2009 at page 417-487 of the Record of Appeal. 4.3 Even taking Zambry’s case at its highest, the crucial questions are therefore: + whether the Menteri Besar of Perak may be dismissed under any circumstances (or the office “rendered??? vacant); + if so, under what circumstances; and + whether the circumstances exist in this particular case. 4.4 It is our submission that, with respect, and under the framework of the Perak Constitution, the Menteri Besar of Perak may not be dismissed under any circumstances (or the office “rendered??? vacant). 4.5 By an order dated 9.7.2009, leave was granted to the Applicant to appeal to this Honourable Court against the whole of the decision of the Court of Appeal and the 3 issues to be determined by this Honourable Court are namely; (i) Whether, under Article XVI(6) of the Laws of the Constitution of Perak and in the circumstances that 1. the Menteri Besar of Perak wishes, and has advised for the dissolution of the Perak State Legislative Assembly; and 2. there was no dissolution of the Perak State Legislative Assemmbly; and 3. there was no motion of no confidence taken in and adopted by the Perak State Legislative Assembly against the Menteri Besar of Perak; and 4. there was no resignation by the Menteri Besar of Perak; (ii) Whether, under Article XVI (6) of the Laws of the Constitution of Perak, the determination of the issues of confidence in the Menteri Besar of Perak has to be made by members of the Perak State Legislative Assembly in an Assembly meeting on a vote of no confidence, or by means other than by a vote of no confidence in the Perak State Legislative Assembly as to whether the Menteri Besar commands the confidence of the majority of the members of the Perak State Legislative Assembly? (iii) If the Menteri Besar refuses to tender the resignation of the Executive Council, whether under the Laws of Constitution of Perak, a Menteri Besar may be dismissed from office or the Menteri Besar’s post be deemed vacant or vacated? II. Grounds in support of Nizar’s position on the questions 1. It is submitted that the decision of the Court of Appeal in allowing the Appeal of the Respondent is erroneous in the application of the correct approach to the relevant provisions of the Perak Constitution and also in the inference it took from the factual matrix of the events and documentary evidence on the 4th, 5th, and 6th February. 2. We say that the approach of the Court of Appeal was wrong in its decision and its findings and reasoning under the major rubrics of Constitutional Construction that has to be undertaken by any Court when asked to discharge its high judicial duty in a contestation that involves high public interest and significance. The Rubrics are as follows: 1. The Correct textual construction of the Structure and relevant provisions of the Perak Constitution; 2. The Correct reading of the Original intent of the Perak Constitution when evaluated within the historical Drafts, Preambles , Commission reports and speeches of Political actors which reflect accepted constitutional norms and conventions ; and 3. The Correct application and appreciation of Constitutional Doctrine of Separation of Powers recognizing the proper boundaries of the Constitutional Ruler who exercises his functions within the context of a written constitution that reflects the vesting of Executive Power and authority onto the Executive Council presided over by the Chief Minister in accordance with the tenets of Parliamentary Democracy as embraced by our national and constitutional polity . 2.1 The following overview of the Structure and Provisions of the Perak Constitution is significant and relevant before undertaking a detailed exegesis of its provisions 2.2 In it’s Preamble it was declared “Whereas we have undertaken the Agreement ....on the 21st January 1948 to govern OUR State of Perak subject to the provisions of a written constitution .... AND whereas in pursuance of OUR undertaking given in the Perak Agreement , 1948 it is necessary forthwith that WE should empower and appoint two Councils to aid and advise us in the Government of OUR State of Perak , i.e. a Majlis Mesyuarat Kerajaan, to be called State executive council , and Majlis Mesyuarat Negeri , to be called in English Council of the State ..... AND Whereas WE think it expedient that the empowering and appointment of the said two Councils and the making of the said further provisions should form the First Part of the Said Written Constitution( note the emphatic and specific reference to the empowering of the EXCO , which implies a devolution and divestment of any notion of absolute powers of HRH ) NOW therefore We , by the Rights and Prerogatives as SULTAN and Ruler of the State of Perak and with advice concurrence and consent of Our major Chiefs and Elders of OUR STATE of Perak , do HEREBY DECLARE and ORDAIN IN OUR NAME and on our behalf , and for and on Behalf of OUR Successors , as hereinafter follows ( this means current HRH who being successor to HRH ABDUL AZIZ ALMU’TSIM BILLAH SHAH is bound by the written text of the Constituion of Perak which includes the empowering of executive power to the State executive Council , presided over by the Menteri Besar ) Basic principle that the written Constitution takes precedence and controls any construction that serves to interpolate , change and circumscribe its scope and delineation of all the major Organs of State Government and polity . 2.3 Overview of the ARRANGEMENT of ARTICLES TWO major Parts ( i) PART ONE ( This is the main part which contained the key provisions of Article XVI ( 16) and ART XVIII( 18) which is subject matter for specific construction before the Court ) ( ii) PART TWO Art II contains express reserve powers ... “ on matters relating to our functions as HEAD of Muslim religion or relating to the custom of the Malays ... ( contra Zainun JCA who envisages a wide scope of residual powers of HRH ) 2.4 It is of interest that Part One is the primary part of the State Constitution that deals with the proper governance of the State administration and executive decision-making .Part One articulates and lays down expressly the scope , parameters of duties , discretion and decision making of each important Organ of Constitutional polity. All reference to decision making is expressly made with reference to a particular holder(s) of a designated Office representing the respective Constitutional organ(s) and entail a human agency . ( contra Zainun JCA that there is metaphysics in these provisions. There is no “meta – anything which dehors the written text) 2.5 The Role of HRH as Sovereign: (i) Protector of Islam and Adat Melayu ( Art VI , VI ) under Part 1; (ii) Art VII: HRH shall act towards all his subjects and all persons ...within the State in an impartial manner , governing according to law ( emphasis added) ( compare oath of Office of YDPA Fourth schedule: / also Eight Schedule 19D ( Yang Di Pertua / Governor):.... “ I will faithfully discharge my duties ... I will preserve , protect and defend the Constitution of the Federation of Malaysia and the Constitution of the State of .............................) The form and substance of the Oath of Office underscores adherence to the Constitution and the Ruler is not above the Constitution nor granted authority and power to construe and interpret its scope and operations . (iii)The Royal Prerogatives Much has been said about Royal Prerogatives in submissions of Respondent Counsel and also The AG (though the language used by AG is more circumspect.) Let us examine the actual textual basis for the scope and substance of the Royal Prerogatives (iv) the first major principle must be that as observed by PIKE CJ ( Borneo) in NINGKAN ( No 2) [1967 ] 1 MLJ 46 [Tab 2, IA (P)(1)]: At p 47 Furthermore since under article 40 of the Constitution the YDPA is required to act upon advice of the cabinet in making proclamation under Article 150 , it cannot be argued that the power conferred by article 150 and indeed in all other matters except those mentioned in clauses (2) and ( 3) of Article 40) , it cannot , I think , be argued that the power conferred by article 150 is a prerogative power analogous to certain powers of the British Sovereign ...??? ( v) Art LXII ( 62) Prerogative of His Royal Highness reserved: Except as expressed herein, (italics added) this Part shall not affect the prerogatives, power and jurisdiction of His Royal Highness. The opening phrase, “ Except as expressed herein??? saves the royal prerogatives but only in so far it has not been expressly stated within the written text of the State Constitution .In other words if it has been expressed this saving clause does not amplify the Royal Prerogatives. (vi) It is important now to turn to PART TWO Art X where the Royal prerogatives are listed as: ( a) Fountain of Honour, ( b) The Fountain of Justice , ( c) The Fountain of Mercy , ( d) the Head of Religion of the State , ( e) the Protector of Malay Custom , ( f) the Ultimate Owner of the Soil (vii) Article XII in the concept of Sovereignty the Following are inherent : ( a) Deleted Note the very minimalist articulation of Sovereignty for HRH (viii) It is of interest that notwithstanding the salutary and sonorous declarations of the Royal Prerogatives we can ascertain that its scope is carefully spelt out. The reason for this is that once sovereignty devolves to the people the Constitutional Ruler is to be insulated from colliding with or be pitted against the other two major organs i.e. the Executive Council and the Legislative Assembly. ( ix) Despite the declaration that HRH is Fountain of Justice the principle of Separation of Powers have also devolved the judicial powers to the Courts ( see for e.g. Art LXIV ( 64) ( The Advisory Jurisdiction of the Federal Court by way of referral by HRH and also the Federal Constitution vesting Judicial powers in Courts ) ( x) Despite declaration that HRH is Fountain of mercy The Power of Pardon under art XXVIIA of Part One DOES NOT characterize the Power as that of Royal Prerogative but carefully delineates the scope and exercise of the power of pardon through avenue and scope as spelt out under art 42 of Federal Constitution ( i.e. Pardons Board) . ( xi) An interesting example of limits placed on HRH is Art XIX under Part Two; VACATING OF THRONE by Operation of Law ( emphasis added ). PART 2 ART XIX ( 1) If the Sovereign shall absent himself .......and if it seems to the Dewan Negara that a prolonged absence of the sovereign is not due to a sufficient and excusable cause then the Sovereign shall be deemed to have vacated the Throne . The Dewan Negara shall thereupon cause such vacancy to be proclaimed in the manner provided in Pt 2 Art XX and shall choose and appoint a Successor to be Sovereign in accordance to the provisions of this Part. We draw the Court’s attention that if the Constitution desires to spell out explicitly that an office is by Operation of Law to be deemed vacated it can do so and have done so for the office of HRH . It is highly significant that similar language which could easily be adopted for Article XVI in Part One was NOT introduced for deemed vacating of office of Menteri Besar and that of the Executive Council . (xii) ART XXV Sovereign Fountain of All honours : this Article states this but note before any new title , dignities and Orders is made advice of Dewan Negara must be sought and if will involve expenditure out of the revenue of the State such expenditure shall require the approval of the Legislative Assembly . (Note the pervasive authority of Legislative Assembly whose consent has to be sought when it involves the Public expenditure). A Ruler that is not bound by written constitution and who exercises unfettered Royal Prerogatives would not have his powers to grant honours and Orders to be so circumscribed. Principle of Construction for Royal prerogatives of Perak Constitution that whilst there are Royal Prerogatives that is specifically encapsulated within specific provisions it is wrong to construe constitutional discretions to be that of equivalent to Royal prerogatives of Britain ( whose constitution is unwritten in nature .) A loose characterization of provisions of Perak State constitution as vesting Royal prerogatives on HRH can obscure careful analysis of the proper parameter of the exercise of the HRH ‘s constitutional discretion. For example there is need for objective judgment and also there may be conventions which HRH or Yang Di –Pertua as the case may be has to take into consideration. 3.0 Approaching the Construction of Article XVI : the So call Crux issue / Provision (i) We must first distinguish the sphere and timing in which HRH exercises HRH‘s Appointment Power of MB and that of refusal of request for dissolution. (ii) When HRH exercises his judgment as to who is likely to command the confidence of the Assembly there is as yet no convening of the Legislative Assembly whereupon HRH could ascertain the person being able to command confidence. HRH is expressly mandated with Constitutional discretion. But note this constitutional provision cannot be exercised unfettered but is subject to: 1. HRH’s judgment : this connote a decision making that entails the burden of evaluation and adjudication ; 2. HRH ‘s judgment must be posited of a person who is most likely able to command the confidence of the majority of members of the Assembly ( see Art XVI ( 2 )( a) : it is interesting that the term used is Assembly and Not the full terminology Legislative Assembly ( this may denote that the Assembly has as yet not be convened ) .As once convened the full terminology Legislative Assembly is used . 3. Structurally the exercise of discretion by HRH on what we can characterize as Appointing power is wider and less circumscribed as there is as yet no functioning Executive Council nor Assembly that has convened ; 4. Once the Executive Council is formed and appointed with the Menteri Besar who is described as presiding over the Executive Council the power and scope of HRH has been exercised and in a democratically elected administration the HRH will play a much more circumscribed role ; 5. A fortiori with the Executive Council and the Legislative Assembly Convened the Executive Council is collectively responsible to the Legislative Assembly( Art XVI ( 5) ) and Not to HRH . 6. It is also worthwhile and significant that once the Legislative Assembly is convened the HRH “ may address the Assembly and may send messages “ ( Article XXXVI B ) This language “ may “ is couched in discretionary terms and not “shall???. If language used is “shall??? this will mean that HRH has constitutional right to address and send messages Legislative Assembly . But the extant provision demonstrate that the Popular sovereignty as expressed in the Legislative Assembly is not subordinated to that of the HRH; 7. The above demonstrate that textually the State Constitution is carefully crafted to reflect the balance and equilibrium of Constitutional Ruler and Executive Council and Legislative Assembly. 4.0 It is our submission that once the Menteri Besar is appointed and following that upon the advice of the Menteri Besar appoint the Executive Council( Art XVI ( 2) ( B) the HRH plays a much more limited and circumscribed role and that this include the fact that the power to dismiss is NOT available to HRH . This will form the major part of submission below. 5.0 Subject to Article XVI(6), the Menteri Besar does not hold office at HRH’s pleasure. [Tab 1, IA (P) 1] See below Para 7.0 of this submission where excerpt of Ningkan’s case which contains rulings on scope of Chief Minister holding office which in contradistinction with that of Executive Members who hold office at pleasure of HRH . 6.0 We pause here to reiterate that the Menteri Besar does not hold office at HRH’s pleasure, but holds office subject to the confidence of the members of the Legislative Assembly to whom the Menteri Besar is responsible collectively with the Executive Council . As such, the Menteri Besar cannot be dismissed (or the office “rendered??? vacant) by HRH. The Menteri Besar may only be dismissed after a vote of no confidence is passed against the Menteri Besar by the members of the Legislative Assembly. There is prevailing and strong precedent supporting this position. 6.1 Why the deeming approach or euphemistically the Constitution dismisses is wrong in terms of Constitutional Construction. Firstly if we examine the use of term “shall??? under Part One of the Perak Constitution, there is always an acting Subject who engenders or effect an a action . For example : Art XVI (1) - HRH shall appoint an Executive Council. Can it be said that if for some reason HRH does Not appoint or refuses to appoint that the Executive Council cab be deemed to be appointed or the Constitution will appoint without the decision of HRH . This will be absurd. Secondly as pointed out above in Para 2.5 ( vxi) the Perak State Constitution have itself provisions which effect that the High Office of HRH may be deemed vacated by Operation of Law ( Part 2 XIX ). Art XVI will easily have incorporated words to such effect as expressed in Pt 2 Art XIX. It manifestly refrained from doing so. Thirdly approaching by way Original Intent it was clear that the Draft Constitutional Proposals for the Federal Constitution contained clear powers of removal for the YDPA but when the Final form of the Constitution was agreed upon this explicit power was removed . It is respectfully disingenuous on part of Zainun JCA to cite Jennings Article which conjectures on its accidental omission. The CA decision is in the main an attempt to supply a perceived omission to Art XVI but interpolating HRH supposed Royal prerogative upon Art XVI which Structurally and Textually we respectfully submit contravenes the proper approach to Interpreting the State Constitution . Abdoolcader J in an admirable statement of judicial concision and breadth of learning held : “The Privy Council held in Minister of Home Affairs v Fisher (at page 329) that a Constitution should be construed with less rigidity and more generosity than other statutes (also Attorney-General of St. Christopher, Nevis and Anguilla v Reynolds (at page 655)) and as sui generis, calling for principles of interpretation of its own, suitable to its character, but added that respect must be paid to the language which has been used, and in Teh Cheng Poh alias Char Meh v Public Prosecutor said (at page 468) that in applying constitutional law the court must look behind the label to the substance. Barwick C.J., said in the High Court of Australia in Attorney-General of the Commonwealth ex relatione McKinlay v The Commonwealth of Australia (at page 17): ‘The only true guide and the only course which can produce stability in constitutional law is to read the language of the Constitution itself, no doubt generously and not pedantically, but as a whole: and to find its meaning by legal reasoning’. I said in Public Prosecutor v Datuk Harun bin Haji Idris & Ors. (at page 120) that the Constitution is not to be construed in any narrow or pedantic sense (James v Commonwealth of Australia (at page 614)) but this does not mean that a court is at liberty to stretch or pervert the language of the Constitution in the interests of any legal or constitutional theory, or even, I would add, for the purpose of supplying omissions or of correcting supposed errors.??? The case of Stephen Kalong Ningkan 7.0 First, in Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187 [Tab 3, IA(P)(1)] where the confidence clause in Sarawak (Article 7(1) of the Sarawak Constitution) is similar to Article XVI(6) of the Perak Constitution, 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 asked Ningkan to resign. Ningkan refused to resign. The Governor then declared that Ningkan and all the members of the Supreme Council (equivalent to the EXCO) 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 Ningkan as the Chief Minister was ultra vires the Constitution and was therefore null and void. The main issues which had to be resolved were: 1. whether there was any limitation as to the evidence by which a lack of confidence in the Chief Minister of Sarawak might be assessed (First Issue); and ii) Whether there was any power under the Sarawak Constitution to dismiss the Chief Minister (Second Issue). 8.0 With regard to the First Issue, the Defendant argued in Ningkan that whether a Chief Minister has or has not ceased to command the confidence of the majority is a matter for the Governor’s subjective and personal assessment. The Privy Council case of Adegbenro v Akintola [1963] 3 ALL E.R. 544 [Tab 5, IA(P)(1)] was relied upon to support the view that a vote of no confidence (or a vote on the floor of the House) was not required for the assessment of a lack of confidence. The judgment of the Nigerian Court of Appeal (Tab 4 IAP 1) is worth quoting: “To my mind the conclusion is inescapable that the framers of the Constitution wanted the House to be responsible at every level for the ultimate fate of Government and the Premier. The horizon must be larger than leaving it to one man. The Governor might eventually be the instrument used to effect this, but his position as final arbiter must be dictated by events in the House or events emanating from the House, and not by a letter, however well meaning, signed by a body of members of the House. Law and convention cannot be replaced by party political moves outside the House.??? 9.0 Harley Ag CJ (Borneo) who presided over the Ningkan case chose not to follow the decision of the Privy Council, but he embarked on a careful textual analysis of the provisions of the Sarawak Constitution and held that a lack of confidence could only be demonstrated by a vote in the Council Negri. His Lordship then went on to set out five “distinguishing features??? to justify his finding that the Privy Council’s judgment in relation to the Nigerian Constitution was not applicable to the Sarawak Constitution - they are: i) In the Nigerian case it was mathematically beyond question that more than half the House no longer supported the Premier. ii) 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 the term “confidence??? of a majority of members, being a term of art, implies a reference to a vote such as a vote of confidence or a vote on a major issue. iii) In Nigeria, it was not disputed that the Governor had express power to remove the Premier from office if he no longer commanded support. iv) In Nigeria, the Governor had express power to assess the situation “as it appeared to him???. v) In Nigeria, all Ministers, including the Premier, held office “during the Governor's pleasure??? although there was an important proviso to this. 10.0 His Lordship further held at page 193 of the Ningkan report as follows: All the above five points were peculiar to Nigeria, and not one of them applies to Sarawak. These distinguishing features force me in the present case to a conclusion converse to the Privy Council decision. It seems to me that by the provisions of the Sarawak Constitution, lack of confidence may be demonstrated only by a vote in Council Negri. 11.0 With regard to the Second Issue, at page 193-194, the Court held: …Has the Governor in Sarawak power at all to dismiss the Chief Minister? In considering this question, we may start with section 21 of the Interpretation Ordinance, the general effect of which is that where there is power to appoint (and it is not disputed that the Governor has power to appoint a Chief Minister) there is power to dismiss. However, where the appointment is “subject to the approval … of some other person … the power of dismissal shall only be exercisable … subject to the approval … of such other person.??? If the appointment of a Chief Minister is subject to the approval of Council Negri, then by this section 21 dismissal also would be subject to its approval. Further, in principle, Council Negri should manage its own affairs. A Governor is limited by article 6(3) of the Constitution to appointing as Chief Minister a member of Council Negri who in his judgment is likely to command its confidence (and approval): thereafter it follows, by section 21 of the Interpretation Ordinance, that only when Council Negri has shown lack of confidence (and lack of approval), can the Governor’s power to dismiss, if it exists, be exercised. Of course, if the Sarawak Constitution lays down that a Chief Minister may not be dismissed at all, then the defendants have no case and the Interpretation Ordinance cannot apply. The Sarawak Constitution does in fact direct in article 7(3) that all Ministers other than the Chief Minister hold office at the Governor’s pleasure. According to Mr. Le Quesne this means that Ministers other than the Chief Minister may be dismissed “at the Governor’s pleasure???, whereas the Chief Minister may only be dismissed for cause. If the cause for dismissal is limited to the case of an adverse vote, then this interpretation does not help defendants. In my view, however, the suggested interpretation is altogether false. Article 7(3) clearly means that the Governor may dismiss Ministers but may not dismiss the Chief Minister in any circumstances. A lot has been said about the duty and powers and discretion of the Governor. His paramount duty is to “act in accordance with the advice of the Supreme Council or of a member thereof acting under the general authority of the Council???. (Article 10(1)). There are two occasions when the Governor has a discretion, that is, when he can act without, or even contrary to, the advice of the Supreme Council. Those occasions are in the performance of the following functions — (a) the appointment of a Chief Minister; (b) the withholding of consent to a request for the dissolution of the Council Negri. (Article 10 (2)). As regards to (a), nobody could be so foolish as to suggest that a Governor could appoint a second Chief Minister while there was still one in office. ...In Sarawak, it seems to me that a Chief Minister may advise a dissolution, even though he has not as yet lost the confidence of Council Negri. In such circumstances, the Governor's refusal to dissolve might be conventionally unconstitutional, although not illegal. (emphasis in bold ours) 12.0 Based on Ningkan, the following features arise: i) the Governor could not dismiss the Chief Minister, ii) the only way for a Chief Minister to be dismissed is by way of a vote of no confidence in the Council Negri; and iii) a Governor could not appoint a second Chief Minister while there was still one in office. 13. Since the issues in the present case as well as the relevant provisions in the Perak Constitution are substantially identical to those of Ningkan, it is our submission that there is no reason why this Court should not follow, adopt and apply the decision of Ningkan to the present case. The provisions of the Sarawak Constitution are identical to the provisions of the Perak Constitution, and Ningkan is still good law. 14. It is telling that after the decision in Ningkan, emergency provisions were enacted to give express power to dismiss the Chief Minister. In Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238 [Tab 10, IA(P)(3)], at page 240-241: There can be no doubt that this Proclamation was directed to the constitutional impasse which had come about in Sarawak as already described, and that its immediate purpose was to enable the Federal Parliament to exercise the further legislative powers provided for by article 150(5) of the Constitution. This the Federal Parliament purported to do on the 19th September, 1966, when it passed the Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966. This is the statute which is now challenged by the appellant and it will be referred to hereafter as the “impugned Act???. It commenced by reciting the Proclamation of Emergency and that “… it appears to Parliament that the following provisions of this Act are required by reason of the said Emergency.??? Of these provisions section 3 amended clause (5) of article 150 of the Federal Constitution by adding to the words “notwithstanding anything in this Constitution??? the words “or in the Constitution of the State of Sarawak???, and then made a similar amendment in clause (6) of the same article; section 4 drastically enlarged the powers of the Governor of Sarawak in regard to summoning meetings of the Council Negri and the transaction of business thereat; and section 5 enacted specifically that the Governor might, in his absolute discretion, dismiss the Chief Minister and the members of the Supreme Council if (a) at any meeting of the Council Negri a resolution of no confidence in the Government was passed by a majority of members present and voting, and (b) the Chief Minister after the passing of such a resolution failed to resign and to tender the resignation of the members of the Supreme Council. The main aim of these provisions was to make good the lack of powers on the part of the Governor on which Harley J. had based his judgment. They were temporary provisions in the sense that, under article 150(7) of the Constitution, they were to cease to have effect six months after the termination of the Emergency. But it was not disputed that they involved a modification, albeit temporary, of the 1963 Constitution of Sarawak and would have been beyond the powers of the Federal Parliament before the declaration of Emergency. On the 23rd September, 1966, the Council Negri met and passed a vote of no confidence in the appellant and on the next day the Governor of Sarawak, purporting to act under the provisions of the impugned Act, dismissed the appellant from his position of Chief Minister and appointed the said Penghulu Tawi Sli to be Chief Minister in his stead. (emphasis in bold ours) 15. At page 242 of the report, Lord MacDermott continued: In the explanatory statement issued by the Government of Malaysia while the impugned Act was a Bill in Parliament the following passages appear in reference to the events in Sarawak that have been mentioned already:— “1. A constitutional crisis has occurred in Sarawak which the Yang di-Pertuan Agong is satisfied constitute a grave emergency whereby the security of Sarawak is threatened. 2. There is already in force a Proclamation of Emergency issued on 3rd September, 1964, in respect of the whole Federation, the occasion for which is a matter of public knowledge. 3. The Yang di-Pertuan Agong, in exercise of his powers under article 150 of the Constitution, has on the 14th September, 1966, issued a further Proclamation in respect of Sarawak only, in order to deal with the present crisis as a distinct emergency additional to the emergency already proclaimed. In a recent judgment of the High Court in Borneo it was held that the question whether the Chief Minister commands the confidence of a majority of the members of the Council Negri cannot be resolved otherwise than by a vote in the Council itself. It was further held, in the same judgment, that the State Constitution confers no power on the Governor to dismiss, or by any means to enforce the resigation of, a Chief Minister, even when it has been demonstrated that he has lost the confidence of a majority. This is a serious lacuna in the State Constitution, and one which enables a Chief Minister whose majority has become a minority to flout the democratic convention that the leader of the Government party in the House should resign when he no longer commands the confidence of a majority of the members. The occurrence of such an event, resulting in the breakdown of stable Government and thereby giving rise to the spreading of rumours and alarm throughout the territory, is in the opinion of the Yang di-Pertuan Agong, as expressed in the Proclamation of Emergency, a threat to the security of Sarawak.??? (emphasis in bold ours) 16. It is submitted that unlike Article XVI(2)(a), there is no subjectivity in Article XVI(6). It does not say, for example, "if HRH is of the opinion that the Menteri Besar ceases to command the confidence of the Assembly", or "if it is likely that the Menteri Besar has ceased to command the confidence of the Assembly". It says clearly that "if the Menteri Besar ceases to command". That means this provision kicks in only and only if, it could be factually proven that the Menteri Besar has ceased to command the confidence of the Legislative Assembly. In other words, HRH is not imbued with the power to make his own subjective judgment over this fact and matter. For Article XVI(6) to operate, it must be established as a fact that the Menteri Besar has ceased to command the confidence of the Legislative Assembly. The reason for this lies with Article XVI(7). It is clear that the Menteri Besar does not hold office at the pleasure of HRH as opposed to the other members of the Assembly. Had it been intended that HRH should have the power to dismiss the Menteri Besar as well as the other members of the EXCO, Article XVI(7) would not have made such a glaring and clear exception so as to expressly preclude the Menteri Besar from the operation of that Article. 17. The Perak Constitution is the highest law in Perak. It is the foundation and source of legal authority, and any appointment of the Menteri Besar of Perak must be done in accordance with the said Constitution. The Perak Constitution, like the Sarawak Constitution, is very clear on the following points which support Nizar’s case: 1. it does not confer the power to dismiss the Menteri Besar; 2. it does not confer the discretion to appoint two persons to the office of the Menteri Besar; 3. if at all, the Menteri Besar has ceased to command the confidence of the majority of members of the Assembly, this must be demonstrated only through a vote of no confidence taken at the Assembly. [Ningkan describes the words “confidence of the majority of the members??? as a “term of art???.] 17.1 Article XVI(6) is specifically directed to a no-confidence scenario, and the Menteri Besar may seek the dissolution of the Assembly upon him having ceased to command the confidence of the majority, or generally, under Article XXXVI(2) for other reasons; [Nizar in the present case did not advise a dissolution on the basis that he had lost the confidence of the majority (under Article XVI(6)), but to avoid a situation of possible “deadlock???, and fresh elections would be appropriate to decide the new Perak Government (under Article XXXVI(2).] 17.2 the manner in which the Menteri Besar is to be removed from office is only as provided for under Article XVI(6), i.e. a vote of no confidence taken at the Assembly. 17.3 As we have pointed out a proper reading of the sub-clauses of Article XVI would reveal the following: 17.4 The EXCO, presided over by the Menteri Besar, is primarily responsible to the Legislative Assembly. 17.5 Only when the Menteri Besar ceases to have the confidence of the majority in the Assembly can the resignation of the EXCO be required of the Menteri Besar. 17.6 The only method of determining the confidence of the majority in the Legislative Assembly is by way of a vote of no confidence, conducted by the Assembly. 17.7 The role of HRH under Article XVI(6) is solely that of deciding whether or not to dissolve the Legislative Assembly, if the Menteri Besar loses the vote of no confidence. 17.8 This interpretation is in tandem with Article XVI(7) which states that all members of the EXCO hold office at HRH’s pleasure, except the Menteri Besar. The latter’s position is dependent on the support of the Assembly alone. The case of Tun Datu Haji Mustapha Bin Datu Harun 18. Second, in Tun Datu Haji Mustapha Bin Datu Harun v Tun Datuk Haji Mohamed Adnan Robert, Yang Di-Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan (No. 2) [1986] 2 MLJ 420 [Tab 6, IA(P)(1)], a similar question on the express and implied power of dismissal by the Head of State was discussed, and the Court held as follows, at pages 466-469: At the outset, I would observe that, whatever the facts and circumstances, the real point to consider is whether, in this instance, this provision confers any power at all on 1st defendant to dismiss plaintiff. In this connection, if the appointment of plaintiff is valid, I do not consider that the use of the word “dismiss??? or that of “revoke??? makes any difference, insofar as reliance is placed upon this provision to cause plaintiff to vacate his office as Chief Minister. The submission of LCD is primarily based on the interpretation of Article 7 of the Constitution; although, in relation to his submission that 1st defendant has the power to dismiss a Chief Minister for reasonable cause, the case of Thomas v AG of Trinidad & Tobago [1981] 3 WLR 601 was also relied on. Article 7 of the Constitution provides: “(1) If the Chief Minister ceases to command the confidence of a majority of the members of the Legislative Assembly, then, unless at his request the Yang di-Pertua Negeri dissolves the Assembly, the Chief Minister shall tender the resignation of the members of the Cabinet. (2) A member of the Cabinet may at any time resign his office by writing under his hand addressed to the Yang di-Pertua Negeri, and a member of the Cabinet other than the Chief Minister shall also vacate his office if his appointment thereto is revoked by the Yang di-Pertua Negeri acting in accordance with the advice of the Chief Minister. (3) Subject to clauses (1) and (2), a member of the Cabinet other than the Chief Minister shall hold office at the plea sure of the Yang di-Pertua Negeri.??? It was submitted that Article 7 should be construed to mean that — (1) The Head of State may revoke the appointment of a Chief Minister before he has received the approval of a majority of the Legislative Assembly; (2) The Head of State has power to remove a Chief Minister from office or to dismiss him for reasonable cause, and one example given is the case where the Chief Minister has acted contrary to his oath as a member of the Legislative Assembly to preserve, protect and defend the Constitution. This is subject to the proviso that the Head of State does not do so merely because he considers that the Chief Minister no longer commands the confidence of a majority of the members of the Assembly, which the case of Stephen Kalong Ningkan v. Tun Abang Haji Openg and Tawi Sli has held he is not permitted to do. In connection with the above submission, it was contended that the Ningkan’s case (supra) should be confined to its particular facts; that it does not apply to a case in which the Head of State seeks to remove a Chief Minister from office for cause, before the Chief Minister has received a vote of confidence from the Legislative Assembly; and alternatively, that if the Ningkan’s case purported to decide that there is no power to revoke or to dismiss the appointment of a Chief Minister, in the circumstances of this case, then it was wrongly decided. Here, I consider the expression “in the circumstances of this case??? as falling within the ambit of the ground of “reasonable cause???. Reading and examining the grounds of judgment in the Ningkan’s case, I do not, with respect, consider that the decision in that case is confined to the narrow sphere of its own particular facts. From the judgment, it seems clear that the whole spectrum in the provisions in the Sarawak Constitution corresponding to Article 7 of the Constitution and section 29(3) of the 1963 Enactment was argued and considered by the Court, in connection with its decision. With great respect, I do not seek to differ from that decision. As to the above arguments that Article 7 should be construed to mean that the Head of State may revoke the appointment of a Chief Minister before the latter has received the approval of the majority of the Legislative Assembly, and may remove him from office or dismiss him for reasonable cause, it is to be observed, in relation to the second argument, that the learned Acting Chief Justice, in the Ningkan’s case, after hearing arguments on the corresponding Sarawak Article 7 and section 21 of the Interpretation Ordinance, decided as follows (at page 194, para. 2): “Of course, if the Sarawak Constitution lays down that a Chief Minister may not be dismissed at all, then the defendants have no case and the Interpretation Ordinance cannot apply. The Sarawak Constitution does in fact direct in article 7(3) that all Ministers other than the Chief Minister hold office at the Governor’s pleasure. According to Mr. Le Quesne this means that Ministers other than the Chief Minister may be dismissed “at the Governor’s pleasure???, whereas the Chief Minister may only be dismissed for cause. If the cause for dismissal is limited to the case of an adverse vote, then this interpretation does not help defendants. In my view, however, the suggested interpretation is altogether false. Article 7(3) clearly means that the Governor may dismiss Ministers but may not dismiss the Chief Minister in any circumstances??? (emphasis added). However, even on the basis that the matter is res integra, I have reached the same conclusion. In this connection, reading Articles 6(3) and 7 of the Constitution together, it seems clear that, whereas the power of appointment is vested in the Head of State alone, who makes his own judgment in this respect, without having to be advised by the Cabinet or anyone else, his power of revocation of appointment and dismissal is solely conferred by Article 7(2) and (3); and, in this regard, as distinct from members of the Cabinet other than the Chief Minister, the latter does not hold office at the pleasure of the Head of State. In this regard, if it is intended that the Head of State should have a limited power of revocation of appointment or dismissal, provision in the Constitution would clearly have to be made. As to the argument that Article 7 should be construed to mean that the Head of State may revoke the appointment of or dismiss a Chief Minister before the latter has the approval of the majority of members of the Legislative Assembly, this, in my view, would run counter to what I consider to be the intention of the Constitution that, after his appointment, the Chief Minister has the legal constitutional right to go to the Legislative Assembly, to be tested whether he in fact commands the confidence of the majority members thereof. Revoking his appointment before he has an opportunity of exercising that right, in my opinion, is contrary to the constitutional intention, and this is not permitted by the Constitution. Even more so, would this situation apply in the case of dismissal without a vote of no confidence from the House. In other words, I am of the view that, once a valid appointment of a Chief Minister has been made by the Head of State, he has no power of dismissal, and this is the “contrary intention??? provided for in section 29(3) of the 1963 Ordinance. But what about removal or dismissal for reasonable cause? There is no provision on this in the Constitution. Is it a proper construction of the Constitution to conclude that a power of removal or dismissal for cause should be implied? In this connection, it is to be observed that “reasonable cause???, or “for cause??? may be considered both under the subjective or objective tests. In my view, it seems clear that, by the absence of express provision in the Constitution giving any power of removal from office or dismissal, the Constitution does not intend that any such power be given to the Head of State; otherwise it would have expressly said so, as in the case of members of the Cabinet other than the Chief Minister. As distinct from the Indian position, I consider that the scheme of the Constitution is such that if a Chief Minister misconducts himself or there are other circumstances giving rise to reasonable cause for the removal of a Chief Minister, it is left to the good sense and responsibility of the Assembly to pass a vote of no confidence against him, and, in the normal case, Article 7(1) requires him to either request the Head of State to dissolve the Assembly, or tender his resignation and that of other members of his Cabinet. In reaching this conclusion, I have borne in mind the relevant principles relating to the proper interpretation of constitutions which I had earlier referred to. Further, “the only true guide and the only course which can produce stability in constitutional law is to read the language of the Constitution itself, no doubt generously and not pedantically, but as a whole: and to find its meaning by legal reasoning??? (per Barwick, C.J. in A.G. of the Commonwealth ex relatione McKinlay v The Commonwealth of Australia (1975) 135 CLR 1, 17; 7 ALR 593). It was also submitted that, by virtue of a term implied into the public law relationship between the Head of State and the holder of the office of Chief Minister, the Head of State has the power to remove from office or to dismiss a Chief Minister for reasonable cause. In this connection, an analogy is made with the position where such term is implied into a contract of employment, as shown in the case of Thomas v. A. G. of Trinidad & Tobago. … … …With respect, I do not consider that that case is authority to support the proposition that a term of power of removal from office or dismissal should be implied into the public law relationship between the Head of State and the holder of the office of Chief Minister, since it was concerned with a contract of employment. Further, to do so would be to override the intention of the Constitution and let in by a side or backdoor a power to the Head of State which the supreme law in the State does not confer upon him. With respect, this argument cannot be accepted. As to the case of Adegbenro v. Akintola and Aderemi, that case has been much canvassed and dealt with in the Ningkan’s case (supra). As rightly indicated by LCP, the actual decision in that case regarding the power of dismissal is inapplicable here, as the wording in the Constitution of Western Nigeria, on the interpretation of which the decision in that case turns, is different from that in the Constitution here. In the premises, I am of the opinion that, in a case where the appointment of a Chief Minister has been validly made, there is no power for the Head of State to either revoke such an appointment, or to dismiss the Chief Minister. In reaching this conclusion, it need hardly be mentioned that, in my view, the Indian cases on removal from office or dismissal of Chief Ministers are not relevant, as the corresponding Indian constitutional provisions are different. There, the Chief Minister holds office “at pleasure???. (emphasis in bold ours) 19. Tun Datu Haji Mustapha and Ningkan are consistent with the case before this Court, and lend further weight to Nizar’s position herein. There is no power to dismiss even for reasonable cause. We pray in aid both the authorities cited in support. 20. As Nizar has not resigned, and under the Perak Constitution, cannot be dismissed, the office of the Menteri Besar was never vacant. It follows that Zambry cannot claim the office of the Menteri Besar. 21. To reiterate, the real question in the JR Application is therefore whether in the circumstances that: i) the Menteri Besar of Perak desired, and advised that the Perak Legislative Assembly be dissolved; ii) the Perak Legislative Assembly has not been dissolved; iii) no motion of no confidence against the Menteri Besar of Perak in the Perak Legislative Assembly has been tabled and adopted; and iv) no resignation from the office of the Menteri Besar of Perak has occurred; whether the office of the Menteri Besar of Perak may be and/or had been vacated. 22. If the answer to the question is in the negative (i.e. no), Zambry is not the Menteri Besar, a writ of quo warranto should issue and Zambry is to be ousted. If however, the question is in the affirmative (i.e. yes), then Nizar is to be ousted from the office of the Menteri Besar. 23. The position of Nizar as the Menteri Besar of Perak (which is equivalent to the post of Chief Minister in Ningkan) was purportedly vacated (without a vote of no confidence passed at the Legislative Assembly) and in his stead, HRH appointed Zambry as the purported Menteri Besar. The appointment of Zambry, on the authority of Ningkan, was unconstitutional. As such, the High Court was correct to grant an order in terms of Nizar’s JR Application. The learned High Court judge, His Lordship Dato’ Abdul Aziz bin Abdul Rahim held as follows: In the light of the factual matrix of this case, the court is invited to decide on the interpretation of Article XVI of Perak's State Constitution in particular Article XVI(6) and to decide whether on the satisfaction of His Royal Highness the Sultan of Perak that the applicant has lost the confidence of the majority in the State Legislative Assembly, the applicant ceases to be the MB Perak and whether the applicant is deemed to have resign from the office of MB Perak on him losing the confidence of the majority in the State Legislative Assembly, if he had refused to do so, and that the office of the MB is deemed vacant. Finally the court is invited to consider whether in the context of Article XVI(6) of Perak's State Constitution it is necessary for vote of no confidence to be passed in the State Legislative Assembly before the MB is asked to resign. … Under Article XVI(2) of Perak's State Constitution His Royal Highness shall appoint as Menteri Besar a member of the State Legislative Assembly who in His Royal Highness judgment is likely to command the confidence of the majority of the members of the State Legislative Assembly. In this regard the Attorney General as intervener submitted that His Royal Highness in appointing the respondent was merely performing his duty under the Perak's State Constitution and that to ensure there is no irregularities His Royal Highness has took it upon himself to meet and interview the 31 members of the State Legislative Assembly. The respondent readily adopt this submissions. I never had any doubt that the exercise of royal prerogative to appoint a Menteri Besar pursuant to Article XVI(2) Perak's State Constitution is solely based on personal judgment of His Royal Highness and that His Royal Highness may resort to any means in order to satisfy himself and accordingly to form his judgment as to whom who is likely to command the confidence of the majority of the State Legislative Assembly that he can be appointed as the Menteri Besar to lead the Executive Council. I also have no doubt that His Royal Highness has absolute discretion with regard to the appointment of a Menteri Besar and the withholding of consent to a request for the dissolution of the State Legislative Assembly. This is plain and obvious from the reading of Article XVIII (1) and (2) {a) and (b) of Perak's State Constitution. However, once a Menteri Besar is appointed, he does not hold office at the pleasure of His Royal Highness and collectively with his Executive Council responsible to the State Legislative Assembly. This is quite obvious from the provisions in Article XVI(5), XVI{6) and XVI(7) of Perak's State Constitution, that if the Menteri Besar ceases to command the confidence of the majority of the members of the State Legislative Assembly, he shall tender the resignation of the Executive Council, or under that circumstance the Menteri Besar may request His Royal Highness to dissolve the State Legislative Assembly. Reading Clauses (2), (5), (6) and (7) of Article XVI of Perak's State Constitution it is obvious that once a Menteri Besar is appointed he is answerable to the State Legislative Assembly and to no one else. What that means is that once appointed, the Menteri Besar governs the State through the Executive Council and advises His Royal Highness on the affairs of the State as provided under Article XVIII (1) of Perak's State Constitution, whose advice His Royal Highness shall act upon except in matters where the Constitution provides that His Royal Highness may act in his own absolute discretion. However, because the Menteri Besar holds office not at the pleasure of His Royal Highness, the Menteri Besar cannot be dismissed from his office by His Royal Highness. … The issue on the power of the Governor to dismiss the Chief Minister was also discussed and decided in Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187. In that case the Court was dealing with Article 7(1) of the Constitution of the State of Sarawak which is in pari material with Article XVI(6) Perak's State Constitution. It was argued in that case that since the Governor has the power under Article 6(3) of the Sarawak Constitution to appoint a member of the Council Negeri who in his judgment is likely to command its confidence and. approval it follows that by section 21 of the Interpretation Ordinance that only when Council Negeri has shown lack of confidence (and lack of approval) can the Governor's power to dismiss, if exists, be exercised. It was also argued in that case the under Article 7(3) [which is in pari material with Article XVI(7) Perak's State Constitution] of the Sarawak Constitution the Chief Minister may be removed for a cause. The argument was rejected by the court in that case. At p. 194 the learned Judge says this : "In my view, however, the suggested interpretation is altogether false. Article 7(3) clearly means that the governor may dismiss ministers but may not dismiss the chief minister in any circumstances". In Ningkan, supra, the Court refused to follow the decision of the Privy Council in Adegbenro v Akintola [1963] 3 WLR 63, on the ground that facts in that case are distinguishable in that in Akintola, the Constitution of Nigeria [the country from which the case originated] has express power that the Governor can remove the Prime Minister and that all Ministers including the Prime Minister held office during the Governor's pleasure. Casting Aside The Spell Of Amir Kahar 24. We are mindful that Zambry will rely on the authority of Datuk (Datu) Amir Kahar Bin Tun Datu Haji Mustapha v Tun Mohd Said Bin Keruak & 8 Ors [1995] 1 CLJ 184 [Tab 8, IA(P)(1)]. 25. In Amir Kahar, the Plaintiff was only a cabinet minister whose Chief Minister (CM), Datuk Pairin Kitingan, had already tendered his resignation. He sued the Governor for appointing another as Minister when his appointment as Minister had not been revoked. The facts are different from the present case, and the opinion expressed by the learned Judge on the issue of determining whether the CM ceased to hold the confidence of the majority is inapplicable. 26. Kadir Sulaiman J postulated the theory that the meaning given to the phrase “...to command the confidence of the majority of the members of the Assembly...??? is the same for Article 6 (3) and Article 6(1) of the Sabah Constitution. Article 6 (3) and Article 7 (1) of the Sabah Constitution are identical to Article 16 (2) and Article 16(6) of the Perak Constitution. 27. According to Kadir Sulaiman J, since the Governor of Sabah (under Article 6(3)) can, in exercising his judgment to appoint any person whom he feels is able to command the confidence of a majority of the Assembly, without necessarily having a vote of confidence in that person, then similarly “command the confidence??? (under Article 7 (1)) must mean that there is no need for a vote in the Assembly to test the confidence of the Chief Minister (who is under threat). 28. Therefore, to insist on a vote of confidence in the Assembly to determine the support of the Chief Minister is misconceived. This reading of the Sabah Constitution was cited with approval and adopted by Raus and Ahmad Maarop in their grounds of judgment. 29. The above position is clearly wrong for the following reasons:- 1. The appointment of the MB (Article 16(2)) and the request of the MB for dissolution of the Legislative Assembly (Art 16 (6)) are 2 different acts undertaken by 2 separate persons; 2. In the former, it is the action of HRH in exercising his judgment. Of course in exercising his judgment, HRH can and should be allowed full leeway in deciding who has the confidence of the majority. The usage of the term “in his judgment??? in Article 16 (2) denotes a subjectivity to this process; 3. In the latter, the MB must first of all objectively know for a fact that he has “ceases to command the confidence of the majority of the members of the Legislative Assembly??? before he petitions HRH to dissolve the Assembly. How does the MB objectively determine this fact exists or not? The only sure way is by a vote in the Legislative Assembly. Only then can the requirements of objectivity be satisfied. Any other way will be tainted by speculations or conjecture and will be subject to questions and doubt. Under 16(6), it is the MB who determines that he has lost confidence of the Assembly and not HRH. 27. What test or methods used by HRH in arriving at his decision whether or not to dissolve the Legislative Assembly is irrelevant to the question at hand. It is putting the cart before the horse because it must be first established (by the MB) that he has lost the confidence of the majority of the Assembly before he can approach HRH under Article 16 (6). It is not for HRH to determine this fact. 28. In other words, for Nizar to have an audience with HRH under Article 16(6), he (Nizar) must first lose a vote of confidence in the Legislative Assembly and therefore conclusively and objectively demonstrate that he has, in fact lost the confidence of the majority of the members there. Only then can he seek an audience with HRH under Article 16 (6). 29. Since this did not happen, what HRH did (i.e. ordering Nizar to resign and in the alternative declaring the MB post to be vacant) is tantamount to sacking him. 30. Because of the differing test that is to be executed by different persons, the view taken by Kadir Sulaiman J that the phrase “...to command the confidence of the majority of the members of the Assembly...??? means the same for both Article 6 (3) and Article 7(1) of the Sabah Constitution (read as Article 16 (2) and Article 16 (6) of the Perak Constitution) cannot be supported. 31. We submit so as follows: 31.1 In relation to Article XVI(6) of the Perak Constitution, the general rule is that the decision whether the Menteri Besar has ceased to command the confidence of the majority must be decided in and by the Legislative Assembly, and not anywhere else by someone else. 31.2 Once the Speaker announces that a motion of no confidence against the Menteri Besar has been passed, it shall then be incumbent on the Menteri Besar to inform the Sultan advising him to dissolve the Assembly or for him to tender his resignation. 32. In Amir Kahar, there was evidence of the petition by 30 Legislative Assembly members against Pairin, the public admission of Pairin himself that he had lost confidence of the majority and the tendering of his resignation as CM. Under such circumstances, there is little need for the Legislative Assembly to pass a vote of no confidence when the Chief Minister himself had publicly acknowledged that he had lost support of the majority and would resign, and indeed resigned. Assuming that Pairin had refused to resign as CM, the case would then have taken a different dimension. The situation and the circumstances of the present case are quite different from that of Amir Kahar. Here, taking Zambry’s case at best, there was a situation of potential deadlock: 28-28. 33. By a letter dated 5.2.2009, Nizar advised HRH: i) that the confidence question regarding the Menteri Besar “perlu diputuskan oleh Persidangan Dewan Undangan Negeri???; ii) that PR and BN had 28 Assembly members each; iii) that the Speaker had declared the 3 Assembly members “bukan lagi ADUN???. 34. By virtue of Article XVIII(1), HRH was bound to accept this advice. It was then up to HRH, acting on the advice before him to decide in his discretion whether the Assembly ought to be dissolved. 35. However, from the press statement issued on 5.2.2009 by the office of the HRH, it is stated that: i) 31 Assembly members supported BN; ii) HRH interviewed 31 of the Assembly members (despite Nizar having already advised HRH that 3 of them had resigned) - interestingly, the letters of 3.2.2009 from them to HRH advised HRH to demand the resignation of Nizar and the EXCO members OR for a vote of confidence be taken at the Assembly; iii) Nizar ceased to command the majority (despite Nizar having already advised HRH that only the Assembly can make such a decision); and, iv) it is deemed that the posts of the Menteri Besar and the EXCO members vacant if Nizar and the EXCO members refused to resign. 36. Nizar is not challenging the discretion to withhold the dissolution of the Assembly. Our contention, which is the “trigger issue??? before this Court, is that the pre-condition to Article XVI(6), i.e. that the “Menteri Besar ceases to command the confidence of the majority…??? has not been met. Therefore, the question of Nizar tendering the resignation of the EXCO did not arise. On this note, it is important to bear in mind that the letter of 4.2.2009 from Nizar to HRH was not a request pursuant to Article XVI(6), and this is clearly reflected in the draft Proclamation for dissolution which refers to Article XXXVI(2). [In the course of an exchange between counsels and Dato' Zulkefli Bin Ahmad Makinudin FCJ in the Federal Court on 28.4.2009 (during the hearing of Zambry’s Article 63 reference), His Lordship observed that the letters of 4.2.2009 and 5.2.2009 from Nizar do not support the contention that the request for dissolution was made pursuant to Article XVI(6).] 37. Apart from Nizar’s advice on the issue of the three resignations, it is our contention that it was not within the purview of HRH to take into account the three members in deciding 31-28 at that material time on 5.2.2009 when: i) prima facie, they had resigned; ii) the Speaker declared that they had resigned; iii) irrespective of that protest post-resignation not one denied authorship of the letters of resignation; and iv) the matter was already in Court. 38. Taking into account all the above factors, it is apparent that the facts in the present case are unlike those in Amir Kahar, whereby in the latter, there was a clear and unequivocal public admission on the part of the CM that he had ceased to command the confidence of the majority of the Legislative Assembly. 39. We also hasten to add that, with respect, the view espoused by Abdul Kadir Sulaiman J (as he then was) on the mode of proving loss of confidence was nothing more than obiter dicta as: 39.1 The appointment of the new Chief Minister by the Yang Di-Pertua was no longer an issue as a certain prayer had been withdrawn from the Originating Summons (the case only proceeded in relation to the validity of the appointment of the new EXCO because the old EXCO had not resigned) - page 187 a-c of the report. 39.2 In deciding to follow the Nigerian case, the learned judge found that Amir Kahar was factually like the Nigerian case in that, among others: i) It was mathematically beyond question that more than half of the members of the Assembly have expressed in their petition stated they no longer had confidence in Pairin (not so in our case) - page 195 d of the report. ii) Pairin himself stated that he resigned because he no longer had the support of the members (not so in our case) - page 195 g and 196 e-g of the report. But this is not the position in Nizar’s case. 39.3 The fact that the CM had lost the confidence of the majority was an undisputed fact. In Ningkan, that fact remained in dispute and therefore the only way out was by a motion of no confidence. 39.4 Further, in the Nigerian case of Akintola, there was an express provision allowing the Governor to remove the Premier from office. The equivalent version of Article XVI(6), i.e. Article 33(10)(a) reads as follows: “the Governor shall not remove the Premier from the office unless it appears to him that the Premier no longer commands the support of a majority…???. The words “unless it appears to him??? are absent from Article XVI(6). This absence is crucial as it is these words that provided Viscount Radcliffe with the reasoning that “the judgment as to support enjoyed by a Premier is left to the Governor’s own assessment, and there is no limitation as to the material on which he is to base his judgment…??? – [Tab 5, IA (P) 1] 40. Under the circumstances, Nizar 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 Assembly, but not otherwise. And since Nizar has not resigned as Menteri Besar, any appointment of another Menteri Besar will be ultra vires the Perak Constitution. 41. In the abundance of caution, the JR Application does not seek to question or impugn HRH’s discretion in withholding consent for the dissolution of the Perak Legislative Assembly, nor does it seek to question or impugn HRH’s discretion in the appointment of a new Menteri Besar upon the resumption of legislative business after the Perak State elections. We submit that the learned High Court judge was correct when His Lordship held as follows: On this point the Attorney General submitted that the contention by the applicant that by virtue of Article XVI(7) the Menteri Besar cannot be dismissed from office must be seen in the context of Article XVI(6). Specifically the Attorney General submitted that Article XVI(7) must be read subject to Article XVI(6) Perak's State Constitution. He further submitted that Article XVI(6) uses the word 'shall tender his resignation', so he said what will happen if the Menteri Besar does not resign under the circumstance of Article XVI(6) Perak's State Constitution? He went on to suggest that not resigning when one is. without a majority is against democratic principles. He submitted that it is an established convention to resign in such circumstances. The Attorney General further submitted that the Constitution is a living piece of legislation and that the Government has to function. The Attorney General cited the case of Datuk (Datu) Amir Kahar bin Tun Datu Haji Mustapha & Tun Mohd Said Keruak & 8 Ors [1995] 4 CLJ 184 as an authority for the proposition that where the Menteri Besar has lost command of the majority and he refuses to resign, then the office is deemed to be vacant. This submissions of the Attorney General is also adopted by the respondent. I do not agree with the submissions. I do not find anything in Clause (7) of Article XVI that warrants it to be read subject to Clause (6) of the same Article in the manner suggested by the Attorney General as to the dismissal of the Menteri Besar. There is no ambiguity in the language in Clause 7, That Clause simply provides except for the Menteri Besar that other members of the Executive Council hold office at the pleasure of His Royal Highness. This means that they (the members of the Executive Council except the Menteri Besar) may be removed from office by His Royal Highness acting on advice of the Menteri Besar. As for the Office of Menteri Besar, Clause 7 of Article XVI Perak's State Constitution says that the Menteri Besar does not hold office at the pleasure of His Royal Highness. However the qualifier at the. beginning of Clause 7 suggests that the Menteri Besar shall tender his resignation pursuant to Clause 6 of Article XVI if he ceases to command the confidence of the majority in the State Legislative Assembly. Amir Kahar case does not support Attorney General contention. In Amir Kahar, the Chief Minister Dato' Pairin had resigned. In Amir Kahar, also there was no issue as to whether the Chief Minister had ceased to command the confidence of the majority. This is so because in that case Dato' Pairin had accepted that fact and tendered this resignation. The issue in that case is whether Dato' Pairin's cabinet was also deemed resigned when in the letter of resignation submitted to the Governor, Dato' Pairin did not tender together with his resignation, the resignation of his Cabinet. The decision in Amir Kahar is correct on its own facts. The formation of a Cabinet is at the instance of the Chief Minister. The Chief Minister is the head of the Cabinet and the Cabinet functions collectively in carrying out its collective responsibility. Therefore, when the Chief Minister resigns the Cabinet resigns with it; whether or not the letter of resignation by the Chief Minister expressly stated the resignation of his cabinet as well. Thus, whatever the Court said in Amir Kahar regarding the requirement for vote of no confidence in the Legislative Assembly is only obiter that was never an issue before the Court in that case. The Reid Commission’s 1957 proposal regarding the power to dismiss or remove the Prime Minister (Federal Constitution) 42. The Report of the Federation of Malaya Constitutional Commission 1957 (Reid Commission Report) proposed that the Constitution of the Federation of Malaya/Federal Constitution (FC) is to provide for the additional power to the Yang di-Pertuan Besar to remove the Prime Minister in the event of a confidence loss. 42.1 Article 36(2) of the Draft Constitution of the Federation of Malaya (found in Appendix II to the Reid Commission Report at Tab 1, IA(R)(3) - page 13) states that: The Yang di-Pertuan Besar shall appoint from among the members of the House of Representatives a Prime Minister who is in his judgment most likely to command the confidence of the majority of the members of that House and, if the Prime Minister ceases to command such confidence, the Yang di-Pertuan Besar shall either, at the request of the Prime Minister, dissolve Parliament or remove the Prime Minister from office. (emphasis as underlined ours) 42.2 The proposed Article 36(2) was explained at paragraph 69 of the Reid Commission Report and at paragraph 20 of the “Summary of Recommendations??? [Tab 1, IA(R)(3) - pages 28- 29 and 87]: 20. If the Prime Minister has lost the confidence of the House of Representatives he must either resign or ask for a dissolution of Parliament, and if the Yang di-Pertuan Besar refuses a dissolution of Parliament, he must vacate his office (Para.69). 43. However, the proposal was not subsequently adopted. Article 43(4) of the FC provided instead that if there is a confidence loss (which we say, in accordance with the Ningkan jurisprudence, is a “term of art??? and means a vote of taken in the House), and unless Parliament is dissolved, the Prime Minister shall tender the resignation of the Cabinet. There is no power of dismissal or removal of the Prime Minister. The Reid Commission’s 1957 proposal regarding the power to dismiss or remove the Menteri Besar (State Constitutions) 44. The Reid Commission Report proposed that under the State Constitutions (SC), there are various circumstances to which the Menteri Besar automatically ceases to hold office. One circumstance is after a resolution of want of confidence in the Menteri Besar is passed in the Assembly. See Section 2(3), Fifth Schedule, Part I and Section 26(3), Fifth Schedule, Part II of the Draft Constitution of the Federation of Malaya at Tab 1, IA(R)(3) - pages 71 and 77. 45. There was no necessity for the enunciation of the power to dismiss or remove the Menteri Besar. On the occurrence of one of the enumerated circumstances, the Menteri Besar immediately and unconditionally loses his office. However, this proposal again did not find favour ultimately. 46. Section 20(6), Eighth Schedule, Part II of the FC at Tab 2, IA(P)(3) did not adopt the words “cease to hold office???. It stopped short of an automatic termination of the Menteri Besar, rather, it stated that the Menteri Besar “shall tender the resignation of the Executive Council??? (as per Article XVI(6) of the Perak Constitution). 47. Had the words “cease to hold office??? been used, it would not be incorrect to say today that without requiring the Menteri Besar to tender his resignation, the Menteri Besar’s office would automatically be rendered or deemed vacant. 48. The term “cease??? has been defined to mean: 48.1 Shroud’s Judicial Dictionary of Words and Phrases, Seventh Edition, Volume 1, A-E, pages 390 - 392 at Tab 3, IA(P)(3): CEASE. “To ‘cease’, does not, necessarily, import an act of free will. … “Cease, determine, and be void to all intents and purposes???: see VOID. … “Ceases to hold an office or employment??? (Finance Act 1927 (c.10), s.45(5)). A deputy town clerk who was appointed town clerk elsewhere was held, on taking up the new appointment, to have ceased to hold his previous employment (Hathaway v Turner [1942] 1 K.B. 61). 48.2 Words, Phrases & Maxims Legally & Judicially Defined by Anandan Krishnan, page 203 at Tab 4, IA(P)(3): CEASE To put an end to; to put a stop to; to come to an end; to stop doing. To ‘cease’, does not, necessarily, import an act of free will. … … The word ‘cease’ means ‘discontinue’ or ‘put an end to’. There is no scope for importing any nation of suspension into that expression. Mahant Narayana Dessjivaru v State of Andhra AIR 1959 AP 471 AIR 1959 AP 474 … … ‘Ceased’ is a strictly proper word to apply to the case where the entire thing has ‘ceased to be’. Lancashire Jus v Rochdale 53 LJMC 5 49. In the final analysis, we submit that the Reid Commission Report’s proposals in the event of a confidence loss: 49.1 to include the power to dismiss or remove the Prime Minister; and 48.2 to automatically render or deem the office of the Menteri Besar vacant were both rejected. Seen in this context (of a confidence loss scenario), the current version of the relevant clauses must only mean that (i) there is no power to dismiss or remove the Prime Minister and (ii) the office of the Menteri Besar cannot be rendered or deemed vacant. 50. The learned High Court judge was thus correct to say: The fact that the dismissal of the Menteri Besar by His Royal Highness or by any one else is not within the contemplation of Article XVI(6) is clearer if one is to look at the legislative history of that provisions. An identical provision to Article XVI(6) Perak's State Constitution is found in Article 43(4) of the Federal Constitution; of course in that Article it refers to Prime Minister instead of Menteri Besar. Article 43(4) Federal Constitution has its origin in Article 36(2) in the draft Federation of Malaya Constitution proposed by the Reid Commission: See Report of the Federation of Malaya Constitutional Conference (No. 6 of 1956 -Appendix II). The draft Article 36(2) reads: "The Yang di-Pertuan Besar shall appoint from among the members of the House of Representatives a Prime Minister who is in his judgment most likely to command the confidence of the majority of the members of that House and, if the Prime Minister ceases to command such confidence, the Yang di- Pertuan Besar shall either, at the request of the Prime Minister, dissolve Parliament or remove the Prime Minister from office." In that original draft the Reid Commission had clearly proposed that the Prime Minister may be removed if he refuses to resign in the circumstances the Prime Minister ceases command the confidence of majority in the House. That proposal however was rejected and as a result we have our present Article 43(4} in the Federal Constitution. Similar provision was drafted for States Constitution and by virtue of Article 71 read together with the Eight Schedule in the Federal Constitution, that similar provision was included and formed part of State Constitutions for all the States in Malaysia. From the brief legislative history of Article 43(4) of the Federal Constitution mentioned above and the fact that Article XVI(6) is identical to the said article 43(4), except to the reference of Menteri Besar instead of the Prime Minister, it is my opinion that dismissal of the Menteri Besar by His Royal Highness or by any one else is never contemplated under the Article XVI(6) Perak's State Constitution. Stretching or perverting the language of the Constitution is not permissible in the interests of any legal or constitutional theory, or for the purpose of supplying omissions or of correcting supposed errors 51. It is settled that where the language of the Constitution is plain, a Court must apply the same and is not at liberty to stretch or pervert the language in the interests of any legal or constitutional theory, or for the purpose of supplying omissions or of correcting supposed errors. See Merdeka University Bhd v Government of Malaysia [1981] 2 MLJ 356 at page 360I of the report, right column (affirmed by the Supreme Court reported in [1982] 2 MLJ 243) [Tab 11, IA(R)(3)]. 52. From our understanding of the submission of the Intervener, Attorney-General and Respondent, Zambry: 52.1 Article XVI(6) of the Perak Constitution must be read purposively; 52.2 if the said Article is not read purposively, it may lead to situations of absurdity; and 52.3 the mandatory nature of the term “shall tender the resignation??? implies the power for the removal or dismissal of the incumbent Menteri Besar should he not resign and/or for his office rendered or deemed vacant. (We wish to re-state that it is our primary position that the circumstances triggering the necessity for Nizar to resign have not arisen on the facts of this case because no vote of no confidence has been adopted, yet even if we are to take Zambry’s case at its best, there is no power to remove or dismiss Nizar or to render or deem the office of the Menteri Besar vacant.) 53. With respect, we submit that the contention of the Attorney-General and Zambry should not be acceded to for the following reasons. 53.1 There is absolutely no absurdity if Article XVI(6) is read the way we have set out in our submission. There are various options still available to Zambry/BN such as to move a motion of no confidence against Nizar in the Assembly or for the Assembly to be dissolved. As a matter of fact, the BN Assembly members and 3 purported Independent Assembly members in their letters dated dated 3.2.2009 and 4.2.2009 to HRH imlicitly recognised the need for a vote of no confidence to be taken against Nizar at the Assembly (see “PS-4??? - page 364 Record of Appeal, “PS-6??? - page 377 Record of Appeal and “ZAK-19??? - page 486 Record of Appeal). Even the Speaker wrote to HRH by a letter dated 6.2.2009 to hold an Assembly meeting for the proposed vote of no confidence against Nizar (see “SVN-9??? - page 610 Record of Appeal). 53.2 The contention that the term “shall tender the resignation??? implies either the power for the removal or dismissal of Nizar should he not resign and/or for his office rendered or deemed vacant is an invitation to this Honourable Court to: o read into Article XVI(6) words and meanings which are not available on a true construction of the said Article; o stretch and pervert the plain language of the term “shall??? to extend it beyond its ordinary meaning to encompass a scope never intended for under the Perak Constitution, namely, the power to remove or dismiss or to render or deem the office of the Menteri Besar vacant; and o thereby, to create a “legal fiction??? which has not been provided for in the Perak Constitution. 54. We say that a “legal fiction??? will be created because Article XVI(6), on a plain reading of it: (i) does not provide for the power for removal or dismissal; and (ii) there is no “deeming??? provision that should the Menteri Besar not resign, his office will be rendered or deemed vacant. Where there is (i) no power of removal or dismissal, and (ii) no “deeming??? provision, this Honourable Court cannot and should not supply in any form or manner, such power and provision. Again, the purported concept of “deemed??? vacancy by an extension of the term of “shall??? being a mandatory provision cannot be permitted because clearly the Menteri Besar does not hold office at the pleasure of HRH. 55. In effect, the Court is being invited to read into Article XVI(6) a legal fiction by way of a “deeming??? provision. This would be contrary to all settled principles of constitutional interpretation and application. If the Perak Constitution itself does not have a “legal fiction??? (i.e. a deeming provision) in terms of a “deemed??? vacancy, surely this Court is in no position to legislate and read into the said Constitution such a deeming clause. The law on the function of the Court is clear, as evident from the following: 55.1 PP v Tan Tatt Eek & Other Appeals [2005] 1 CLJ 713 at pages 733g - 734b, 734g - 735d and 747d - g of the report [Tab 5 IA(P)(3)]. 55.2 Andrew s/o Tamboosamy v Superintendent of Pudu Prisons, Kuala Lumpur [1976] 2 MLJ 156 at page 158 of the report: But at the same time we are of the opinion that the problem of dealing with illegal immigrants is a matter of public policy to be decided by Parliament and by the Executive, that in this matter the proper authority for enacting the necessary legislation is Parliament and that if the Government exercises a power conferred on it by Parliament and keeps within the law, then the duty of the court is quite clear; the court should simply apply the law, no matter how harsh its effect may be on the immigrant. His remedy is then not judicial, but political and administrative. 55.3 N.S. Bindra’s Interpretation of Statutes, Eighth Edition, 1997 at pages 448-450, 452-453 and 869-871 [Tab 6 IA(P)(3)]. 55.4 The maxim of expression unius est exclusion alterius is applicable in that the “expressed mention of one thing implies the exclusion of another??? : … So also, if the statute directs that certain acts shall be done in a specified manner, or by certain person, their performance in any other manner than that specified, or by any other person than one of those names, is impliedly prohibited See N.S. Bhindra’s Interpretation of Statutes [Tab 6 IA(P)(3)- page 441]. 55.5 The maxim that the court cannot supply casus omissus is equally applicable. Even if the existing mode of vacating the Menteri Besar’s office may not be politically expedient, it is not the Court’s duty to act as the legislature. In the case of casus omissus (i.e. a case unprovided for where for example the Menteri Besar refuses to resign), the Court’s attitude is not to read words into the provisions of the law to fill any gaps. See Ajaib Singh v Sirhind Cooperative Marketing-Cum-Processing Service Society Limited and Another (1999) 6 SCC 82 [Tab 7 IA(R)(3)] and State of Kerala v Mathai Verghese AIR 1987 SC 33 [Tab 8 IA(R)(3)]. 55.6 See also Bennion On Statutory Interpretation: A Code (5th Edition) at page 171 [Tab 9 IA(R)(3)]: Tacit legislation Where Parliament does not intervene to reverse or modify processing effected by courts or officials it can be taken tacitly to approve it. ‘… if a legislature has chosen not to make any change in an Act following upon its interpretation by the judiciary, it is strong ground for thinking that the legislature is satisfied with the court’s ruling ’. For this principle of ‘tacit legislation’ to apply, a reasonable period must have elapsed after the processing within which Parliament might, if it chose, have legislated the other way . The point strengthens the validity of processing as in effect a function exercised under power impliedly delegated by the legislature. … If for any reason Parliament strongly disapproves of the law as currently laid down by an enactment (with or without judicial or other processing) it will hastily take steps to change it. It is submitted that the clear omission of the words “in the Ruler’s personal judgment or opinion??? or words to the like effect in Article XVI(6) is that in determining whether a Menteri Besar has lost confidence, a vote in the Assembly is necessitated. Zambry’s interpretation of Article XVI(6) is in substance an attempt to bring a construction that supplies an omission and strains the language of “he shall resign??? in the Constitution to deem the office vacated. This is not permissible. 56. The learned High Court judge was therefore correct to hold as follows: It is clear from the above passages that the provision of the Constitution is not be construed in a narrow or pedantic sense. It must be construed liberally. However in so doing, the Court is not at liberty to stretch or pervert the language of the Constitution for the purpose of supplying omission or of correcting supposed errors. Applying this principle, can a deeming provision, (as suggested by the Attorney General and Dato' Abraham for the respondent) be read into Article XVI(6) Perak's State Constitution to deem that the Office of the Menteri Besar falls vacant when the applicant refused to resign? A deeming provision is a legal fiction. It refers to something which does not exist but to be taken as in existence. Ordinarily a deeming provision would be expressly provided for by the draftsman in a statute if the legislature wants the particular provision of the statute to be read in that manner. In the absence of such express provision I do not think that a deeming provision should be read into Article XVI(6). To do so would be do violence to the language of the Article XVI{6) Perak's State Constitution which in my opinion contains no ambiguity whatsoever. But in my view no matter how mandatory is the word 'shall' in Article XVI(6), it cannot be read to mean that the office of Menteri Besar becomes or deemed to be vacant if the Menteri refuses to resign under the circumstance of Article XVI(6) Perak's State Constitution. It cannot be done because the language of Article XVI(6) is so plain and obvious. What is so plain and obvious in Article XVI(6) is that the Menteri Besar shall tender his resignation if he faces the circumstances specified in the said Article which is that he has ceased to command the confidence of the majority in the State Legislative Assembly. I will reiterate what NS Bindra said about the doctrine of implied construction which is that the doctrine is limited to the extent of preventing judicial amendment of the fundamental law and that the Court has no right to insert any clause in the Constitution which is not expressed and cannot be fairly implied. What if the Menteri Besar refuses to tender his resignation and he cannot be removed from office? It is obvious that there is a lacuna in the said Article. But that lacuna cannot be filled up by reading into the Article a deeming provision. The lacuna must be filled up by amendment to the said Article. The Attorney General and the respondent submitted that the State Constitution is a living legislation and it must be interpreted to give meaning to its purpose and objective. It was further submitted that Article XVI(6) Perak's State Constitution cannot be interpreted as to lead to absurdity. This argument was also consider in Ningkan's case. And it was rejected. The relevant passage in that case is found at page 194, paras E-l right hand column and it reads: "A word may be said on what is the position if a chief minister has in fact ceased to command the confidence of a majority, and yet refuses to resign. In this situation at least, Mr. Le Quesne claims that the Governor must have a right of dismissal; otherwise the Constitution would be unworkable. Mr. Le Quesne's argument in effect is: if there is a gap, it must be filled: if there is no express power to enforce the resignation of a Chief Minister that power must by implication lie with the Governor. I do not agree that stop gaps can be as it were improvised. … just because a Chief Minister or a Governor does not go when he ought to go is not sufficient reason for implying in the Constitution an enforcing power vested in some individual." For the same reason I would gladly adopt the reasoning in Ningkan case and reject the Attorney General submission on this point. We humbly pray that the appeal herein be allowed. Dated this day of November 2009 ……………………………........................................................ Counsel for Dato’ Seri Ir. Hj Mohammad Nizar Bin Jamaluddin, the Applicant abovenamed Haji Sulaiman Abdullah (Nga Hock Cheh, Philip Koh Tong Ngee, Chan Kok Keong, Ranjit Singh, Razlan Hadri Bin Zulkifli, Mohamed Hanipa Bin Maidin, Leong Cheok Keng, Edmund Bon Tai Soon, Amer Hamzah Bin Arshad and Zulqarnain Bin Lukman with him) |