by NH Chan
Malaysiakini
20.2.09

According to the Perak constitution, the ruler has a personal discretion in the performance of two functions – the appointment of a menteri besar and the withholding of consent to a request for the dissolution of the legislative assembly.

On Feb 4, Mohd Nizar Jamaluddin, the mentri besar, was granted an audience by the sultan to request for the ruler’s consent to dissolve the Perak State Assembly.

The next day, Deputy Prime Minister Najib Abdul Razak also requested for an audience with the sultan as the Perak BN chief and consent was granted for him to present himself before the ruler.

This is the account given in the Star, Feb 6:

“The four-page statement, signed by the sultan’s private secretary, Col Abdul Rahim Mohamad Nor, was issued at 2.15pm, Feb 5.

“It said Mohd Nizar had an audience with the sultan yesterday to seek the ruler’s consent to dissolve the state assembly. Earlier in the day, Najib, who is Perak Barisan chairman, had an audience with the sultan twice.

“At the audience in the morning, he informed the ruler that BN and its supporters now had the majority in the state assembly. The statement said the sultan had summoned all the 31 assemblymen before him to verify the information.

“‘His Royal Highness had used his discretion under Article XWI (2)(b) of the Perak Darul Ridzuan State Constitution and did not consent to the dissolution of the Perak State Assembly,’ the statement added.”

Bernama later reported that Mohd Nizar was summoned to an audience to be informed of the sultan’s decision not to dissolve the state government.

Now what is wrong with that?

It is wrong because the sultan saw Najib without Mohd Nizar being present. Let me explain why it is improper for him to do that.

A fatal error

As a former Lord President, who was then the highest judge in the country, the sultan should know that it is improper to see an interested party alone without the other side being present before announcing his decision.

It was only after the ruler had seen Najib that he summoned Nizar to inform him that he had decided not to dissolve the legislative assembly.

That was his undoing. It was a fatal error. This is not a case of natural justice where both sides have a right to be heard. There was no hearing.

This was a request by a menteri besar to his sultan to dissolve the legislative assembly where, by the very fact of the application itself, he has admitted that he no longer commands the confidence of the majority in the assembly.

In other words, it is a request under Article XVI, Clause (6) of the Perak constitution. To such a request, the ruler has a personal discretion not to grant it under Article XVIII, Clause (2) (b).

The personal discretion to grant or not to grant must be exercised without any suggestion or suspicion to any reasonable outsider that he was partial to one political party or coalition of parties.

In other words, it is about the appearance of impartiality – justice should not only be done, but should be seen to be done.

And in the present context, what is the right thing to do?

Every judge, unless he is a bad judge, knows that the right thing to do is to apply the oft-repeated saying of Lord Chief Justice Hewart in R v. Sussex Justices, ex parte McCarthy: “It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

As Lord Denning would have put it in Metropolitan Properties Co (FGC) Ltd v. Lannon [I9691 1 Q.B. 577: “The court will not inquire whether he did in fact, favour one side unfairly. Suffice in that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.”

When perception matters most

Now we know why the people of Perak and elsewhere in Malaysia, are making harsh statements about the sultan. A quick search on the Internet will prove this.

It is the perception of the people that matters; and the confidence of the people is destroyed when they go away thinking that he was biased – that he had been influenced by Najib.

It is very sad that Sultan Azlan Shah, who had been held in high esteem internationally and by the populace, has, in a careless moment, lost all that.

His reputation for fairness and justice has been shattered when they go away thinking that he had been influenced by Najib or that he has favoured BN. It does not matter whether he did, in fact, favour one side unfairly.

Suffice it that reasonable people might think that he did. The die is cast and we cannot put the clock back. Hereafter, there may be many who will no longer believe in his speeches on good governance and the integrity of the judiciary.

The impression is that he does not practise what he preaches.

When the menteri besar ceases to command the confidence of the majority of the members of the legislative assembly, he has two choices.

First, he may request the ruler to dissolve the assembly for the purpose of a state election. Second, if his request is turned down by the ruler, “he shall tender the resignation of the executive council”.

This is provided in Article XVI, Clause (6) which reads: “(6) if the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.”

What Article XVI, Clause (6) says is this: If the menteri besar ceases to command the confidence of the majority of the legislative assembly, he shall tender the resignation of the executive council, unless the ruler has, at the request of the menteri besar, dissolved the legislative assembly.

However, in the present case, Mohd Nizar on Feb 4, had requested the ruler to dissolve the legislative assembly, and the ruler informed him on Feb 5 that he acted in his discretion to withhold his consent for the dissolution of the assembly.

That being the case, the menteri besar has no other choice but to tender the resignation of the executive council.

Cannot declare MB post vacant

Under Article XWI, Clause (2), paragraph (b), the ruler has a personal discretion to withhold his consent to the menteri besar’s request for the dissolution of the legislative assembly.

Unfortunately, the ruler, in the present case, has acted unconstitutionally when he side stepped the constitutional provisions of Article XVI, Clause (6) of the laws of the Perak constitution.

This was what he did.

The Sultan of Perak’s media statement said: “Mohd Nizar was summoned to an audience with the sultan to be informed of the ruler’s decision not to dissolve the State Assembly, and in accordance with the provisions of Article XVI (6) of the Perak Darul Ridzuan State Constitution, the Sultan of Perak ordered Mohd Nizar to resign from his post as Perak menteri besar together with the members of the state executive council with immediate effect.

“If Mohd Nizar does not resign from his post as Perak menteri besar together with the state executive council members, then the posts of menteri besar and state executive councillors are regarded as vacant.”

As we know the sultan is a constitutional monarch who has no power to rule except a couple of discretionary powers mentioned in Article XVIII, Clause (2).

So, apart from the couple of matters mentioned in Article XVIII, Clause (2), the Sultan of Perak has no power to order Mohd Nizar to resign from his post as Perak menteri besar together with the members of the state executive council with immediate effect.

Nor has he the power to declare that the posts of menteri besar and state executive councillors are regarded as vacant.

In the present case, the menteri besar had acted under Article XVI, Clause (6) which permitted him to request the ruler to dissolve the legislative assembly if he ceased to command the confidence of the majority of the members of the legislative assembly.

In this case, the ruler turned down his request. Then the menteri besar has no choice but “to tender the resignation of the executive council”.

So, why did the ruler, in the present case, depart from the provisions of Article XVI, Clause (6)?

Under the provisions of Clause (6), the sultan knew that the ball was in the menteri besar’s court and it was to be the menteri besar who “should tender the resignation of the executive council”.

Yet he chose to ignore these provisions of the Perak constitution.

A pretended show of power

The ruler has defied the provisions of Article XVI, Clause (6) when he resorted to ordering the menteri besar to resign from his post when he has no power to do so.

The sultan knew, or he ought to have known, that under Article XWI, Clause (2) (a) the menteri besar is appointed by the sultan from the members of the legislative assembly “who in his judgment is likely to command the confidence of the majority of the members of the Assembly”.

This is what Article XVI, Clause (2) says: “(2) The Executive Council shall be appointed as follows, that is to say – (a) His Royal Highness shall first appoint as menteri besar to preside over the Executive Council a member of the Legislative Assembly who in his judgement is likely to command the confidence of the majority of the members of the Assembly.”

So that when the menteri besar ceased “to command the confidence of the majority of the members of the legislative assembly”, and this is borne out by his request to the ruler for dissolution of the assembly under Article XVI, Clause (6), the ruler has the power to appoint another “who in his judgement is likely to command the confidence of the majority of the members of the assembly” under Article XVI, Clause (2) (a).

It is a personal discretion of the ruler to act on the appointment of a menteri besar. Since the ruler has the power to appoint another person as menteri besar in place of Mohd Nizar based on his judgement, there is, therefore, no need to order him to resign at all.

This is no more than a pretended show of power when, in fact, there is no such power.

And if the menteri besar delays the tender of the resignation of the executive council as required by Article XVI, Clause (6), there is Clause (7) which provides: “(7) Subject to Clause (6) a member of the Executive Council other than the menteri besar shall hold office at His Royal Highness’ pleasure, but any member of the Council may at any time resign his office.”

This means that the ruler can sack any member of the executive council or all of them at any time.

In his book, ‘What Next in the Law’, the late Lord Denning wrote: “King James II was a bad king. It was he who favoured the Roman Catholics and was bitterly opposed to the Protestants. It was he who dismissed the judges.

“It was he who sent Judge Jeffreys on that Bloody Assize. It was he who directed that the Seven Bishops should be prosecuted for seditious libel – when all they had done was to present a petition to the king himself. It was the acquittal of the Seven Bishops that forced the King to flee the realm.”

It was a young barrister called John Somers who drew up a Declaration of Rights. Although very junior at the Bar, he had made a short speech of five minutes which led to the acquittal of the Seven Bishops. Immediately after that trial, he was entrusted with the task of preparing a Declaration of Rights – to which the new King William assented.

This Declaration became the Bill of Rights 1689. It is not easy to lay your hand on any book which contains the full text of this great document. I will set out here a few of the principle clauses (for the present purpose I will only refer to clauses 1 and 2):

‘The Lords and Commons…

I … (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties, declare:

1. That the pretended power of suspending laws, or the execution of by regal authority, without consent of parliament, is illegal.

2. That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.

II … That William and Mary prince and princess of Orange be, and be declared, King and Queen of England…’

UK’s Bill of Rights

Macaulay, in his ‘History of England’ (Volume III) described the importance of the Bill of Rights in these words: “The Declaration of Right, though it made nothing law which had not been law before, contained the germ … of every good law which has been passed … of every good law which may hereafter, in the course of ages, be found necessary to promote the public weal, and to satisfy the demands of public opinion.”

If we are to have a new Bill of Rights, will it too be the germ of the law which, in the complexities of modern society, maintain the rights and freedoms of the individual against the all-powerful bodies that stride about the place?

I shall now return to the subject matter of this article.

I have borrowed the title of it from the second clause of the Declaration of Rights as drafted by the young barrister John Somers. Clause 2 reads:

“That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.”

The above quotation should serve as a fitting reminder that the laws of the land, more so the Perak constitution, should not be sidestepped by the ruler or, to quote from Lord Denning, by “the all-powerful bodies that stride about the place”.

If anyone thinks that he can dispense with the law for the execution of it, then this clause should remind them that the power to do so is only a pretended power. Article XVI, Clause (6) is what we are talking about here – the menteri besar should be allowed to tender the resignation of the Executive Council in due course of time without being hurried by regal authority exercising a pretended power.

The laws of the Perak constitution should be administered even-handedly and not unequally by giving the impression to the general public that preferential treatment was shown to some persons.

It is the appearance of impartiality that matters. It does not matter whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think that he did.

Substitute the phrase “by regal authority” for the phrase “by those in power” and we have an axiomatic rendering which applies to today’s modern society.

The executive branch of any government, be it federal, state or local, cannot ignore the people’s call for justice and fair play which throughout the ages have been “found necessary to promote the public weal, and to satisfy the demands of public opinion”.

The call of public opinion is a call to maintain “the rights and freedoms of the individual against the all-powerful bodies that stride about the place”. The executive branch of any government can ignore the voice of public opinion at its peril.

Unwillingness to heed the demands of public opinion can lose the mandate of the populace in the next election.

I think the writing is already on the wall. The demands of public opinion is a universal one. If the old order has been found wanting, it must give way to the new.

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NH CHAN, who is former Court of Appeal judge, lives in Ipoh.