Perak Power Struggle - The Datuk Amir Kahar's Case Revisited

In a turning of event in Perak, the Speaker has called for an emergency sitting, which 3 motions were passed: -

(a) motion of confidence on Nizar as the legal Perak MB;

(b) agreement to seek Royal consent for dissolution of state assembly; and

(c) the adoption of the suspension of MB Zambry Abdul Kadir and his Excos by the Rights and Privileges Committee.

Before we discuss further and to get a better overview of the matter, let us have a look at the media statement issued the office of the Sultan of Perak, which is reproduced below:

Yang Amat Berhormat Datuk Seri Mohammad Nizar Jamaluddin was granted an audience by Duli Yang Maha Mulia Paduka Sultan of Perak Darul Ridzuan on Feb 4, to ask for his Royal Highness’s consent to dissolve the Perak State Assembly.

Yang Amat Berhormat Datuk Seri Mohd Najib Razak, Deputy Prime Minister of Malaysia, also requested for an audience with his Royal Highness in his capacity as the Perak Barisan Nasional chairman and consent was granted to be present before his Royal Highness on Feb 5.

Yang Amat Berhormat Datuk Seri Mohd Najib informed that the Barisan Nasional and its supporters, now comprising 31 state assemblymen, had the majority in the State Assembly.

On the order of the Duli Yang Maha Mulia to ascertain that the information given was accurate, all the 31 state assemblyman were to present themselves before Paduka Seri Sultan.

After meeting all the 31 assemblymen, DYMM Paduka Seri Sultan of Perak was convinced that YAB Datuk Seri Mohammad Nizar Jamaluddin had ceased to command the confidence of the majority of the State Assembly members.

DYMM Paduka Seri Sultan of Perak had also considered thoroughly YAB Datuk Seri Mohammad Nizar Jamaluddin’s application on Feb 4, 2009 for his Royal Highness’s consent to dissolve the Perak State Assembly.

His Royal Highness had used his discretion under Article XVIII (2)(b) of the Perak Darul Ridzuan State Constitution and did not consent to the dissolution of the Perak State Assembly.

YAB Datuk Seri Mohammad Nizar Jamaluddin was summoned to an audience with the Sultan to be informed of his Royal Highness’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, DYMM Paduka Seri Sultan of Perak ordered YAB Datuk Seri Mohammad Nizar Jamaluddin to resign from his post as Perak Mentri Besar together with the members of the state executive council with immediate effect.

If YAB Datuk Seri Mohammad Nizar Jamaluddin does not resign from his post as Perak Mentri Besar together with the state executive council members, then the posts of Mentri Besar and state executive councillors are regarded as vacant.

This statement is issued with the consent of Duli Yang Maha Mulia Paduka Seri Sultan of Perak Darul Ridzuan.

From the above statement issued by the Palace, it is crystally clear to us of what happened that led to the Barisan Nasional (BN) to take over the Perak State Government from Pakatan Rakyat (PR).

Despite the above statement, many people especially the PR supporters cannot accept the Sultan of Perak’s decision to use his discretion confereed upon him under the Perak Darul Ridzuan State Constitution (Perak Constitution). It is a judicial notice as to how those unhappy with the Sultan’s decision expressed their unhappiness. I am not going to discuss on that issue here.

Consequent to the Sultan of Perak’s decision to pass the state administration to BN, there have been legal tussle between BN and PR with the issue on the legality of the appointment of the BN Menteri Besar is pending in Court, the suspension order issued by Perak Speaker is under investigation and the legality of the emergency sitting called by the Perak speaker is being challenged. I shall leave those issues out of my discussion here and let the relevant authorities deal with it.

What is the legal status of the discretionary power exercised by the Sultan of Perak, as mentioned above, as conferred by Article 18 (2) (b) of the Perak Constitution? Before I answer the question, I would like to draw your attention to the provisions of Article 16 (6) and Article 18 (2) (b) of the Perak Constitution.

Artcile 16 (6) of the Perak Constitution states as follows: -

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

Article 18 (2) of the Perak Constitution states as follows: -

His Royal Highness may act in his discretion in the performance of the following functions…

(a) the appointment of the Menteri Besar; and

(b) the withholding of consent to a request for the dissolution of Legislative Assembly

Now, to answer the question I posed above, I would like to revisit the case of Datuk (Datu) Amir Kahar Tun Datu Mustapha –v- Tun Mohd Said Keruak & Ors [1195] 1 CLJ 184. The fact of the case is briefly as follows: -

In February 1994, there was a state election in Sabah offering 48 seats. At the end of the election, Parti Bersatu Sabah (PBS), led by Joseph Pairin Kitingan defeated Barisan Nasional (BN), led by Sakaran Dandai by 25 to 23 seats. Accordingly, Pairin Kitingan was appointed as the Chief Minister of Sabah. However, in March the same year, 3 of PBS Assemblymen defected to BN, thus causing BN to have better majority to that of PBS. As a result of the defection, Pairin Kitingan decided to tender his resignation as the Chief Minister. Immediately after Pairin Kitingan tendered his resignation, the Governor of Sabah appointed Sakaran Dandai as the Chief Minister. Subsequent to Sakaran’s appointment as the Chief Minister, 7 new Ministers were duly appointed to be in Sakaran’s cabinet. The issue in this case was pertaining to the legal status of the Ministers under the leadership of Pairin Kitingan as well as the validity of the appointment of 7 cabinet members under Sakaran Dandai.

What happened was, upon the defection of his 3 Assemblymen to BN, Pairin had sought the consent of the Governor to dissolve the State Legislative Assembly. This was made in line with Article 7(1) of the Sabah State Constitution, which has the same effect as in Article 16 (6) of Perak Constitution. The Governor however, withheld the request made by Pairin Kitingan pursuant to Article 10(2) which is nonjusticiable (can’t be challenged in Court), which has similar effect to Article 18 (2) (b) of the Perak Constitution.

Subsequent to that, the Governor received a petition signed by 30 people said to be the member of the State Legislative Assembly to show support for the BN and no confidence in Piairin Kitingan. Based on what happened, the Governor decided to appoint Sakaran Dandai as the new Chief Minister. As to what happened in Perak, as we can see from the media statement above, 31 State Assemblymen had an audience with the Sultan of Perak to show their support in BN, which automatically means that Nizar had ceased to have confidence of the majority of the members of the Legislative Assembly. Accordingly, a new MB from BN (Zambry) was appointed by the Sultan upon the power conferred to him pursuant to Article 18 (2) (a) of the Perak Constitution.

The point raised by the Plaintiff was that the resignation of Pairin Kitingan was personal to him and it does not affect the legality of the appointment made on the cabinet members of Pairin Kitingan. This is because there has been no concrete evidence that Pairin Kitingan has ceased to have confidence of the majority of the members of the State Legislative Assembly (as the Plaintiff deemed the petition signed by 30 Assemblymen is not acceptable in law to show the non-confidence in Pairin). The only distinguishing factor between the case in Perak and Sabah is that in Sabah, upon realizing that he has ceased to have the confidence of the majority and that his request for the dissolution was withheld by the Governor, Pairin tendered his resignation while in Perak, though Nizar realized that he has lost the confidence of the majority and that his request for dissolution was withheld by the Sultan, Nizar did not tender his resignation.

However, the Court, after considering the relevant facts and authorities presented before it by counsels of both parties, concluded as follows: -

On the issue of whether the petition signed by 30 Assemblymen is a sufficient proof to show that Pairin Kitingan has lost confidence of the majority, the Court held that the evidence to establish that a Chief Minister ceases to command the confidence of a majority of the members of the Assembly…need not necessarily be dependent upon the actual motion to be tabled in the State Legislative Assembly. It may be available from sources outside the Legislative Assembly depending on circumstances of each case. In other words, the Judge was of the opinion that the petition signed by 30 Assemblymen is a sufficient proof that Pairin Kitingan had no longer has majority confidence and that it did not necessarily to have proper vote of no-confidence through a proper sitting.

On the issue of whether Pairin Kitingan’s resignation affect the position of his cabinet members, the Court was of the view that the resignation of Pairin Kitingan as the Chief Minister was a resignation pursuant to him ceasing to command a confidence. As a result, upon his resignation being accepted, the his Cabinet was dissolved and with it goes the appointments of the other members of that Cabinet. Consequently, the appointments of Pairin Kitingan’s cabinet members made on 21 February 1994 would not any longer subsist in law.

So, based on the case of Datuk Amir Kahar, it is crystal clear upon us that the Sultan of Perak was right in withholding Nizar’s request to dissolve the Legislative Assembly. However, the issue of whether the Sultan has the power to ask Nizar to resign was not decided in Datuk Amir Kahar’s case, as it was not an issue in that case.

In my opinion, Article 16 (6) of the Perak Constitution is very clear that if the MB ceases to command the confidence of the majority, he will need to tender his resignation (in view that his request for dissolution was not granted by the Sultan).

It is my opinion also that since Article 18 (2) (a) of the Perak Constitution empower the Sultan to appoint the Menteri Besar, he should have the power to retract his appointment, though it is not clearly stated under the same Article.

So, when the MB (Nizar) refused to tender his resignation, in my opinion, the Sultan of Perak was right is asking Nizar to tender his resignation and to appoint the new Menteri Besar, as provided under Article 18 (2) (a) of the Perak Constitution read together with Article 16 (6) of the same Constitution. In that sense, the Sultan of Perak did not have to wait for Nizar to tender his resignation. By the Sultan requesting Nizar to resign and by him appointing Zambry as the new MB, indirectly, it can be said that the Sultan has revoked the appointment of Nizar as the MB.

What then happened to the Executive Councils under Nizar’s administration? As clearly pointed out in Datuk Amir Kahar’s case, with the revocation of the appointment of Nizar as the MB, those Executive Councils under Nizar’s administration have to leave the office simultaneously.

In a nutshell, with the appointment of Zambry as the new MB, Nizar has ceased to become the MB of Perak and the same goes to his Exco members.

Notwithstanding the above, the Perak Legislative Assembly has passed 3 resolutions during their “under the tree emergency sitting” yesterday. The first 2 motions were on the show of confidence of majority towards Nizar and the second was the agreement of the majority to have the dissolution of the Legislative Assembly to give way for fresh election.

With my discussion above, the show of confidence by the majority towards Nizar does not hold water. However, assuming that Nizar is still the legal MB of Perak (and assuming that the appointment of Zambry was illegal), Article 16 (6) of the Perak Constitution clearly stated the pre-condition that must be fulfilled by Nizar as the MB before he can request to the Sultan of Perak for the dissolution of the Legislative Assembly and the pre-condition is THE MB CEASES TO COMMAND THE CONFIDENCE OF THE MAJORITY. Now, during the said emergency sitting, the first motion that was passed was a MOTION OF CONFIDENCE towards Nizar and NOT THE MOTION OF NO CONFIDENCE AGAINST NIZAR. So, when the majority still have confidence in Nizar as the MB of Perak, Nizar has not fulfilled the precondition set out in Article 16 (6) of the Perak Constitution and as such, any request by Nizar for the dissolution of the Legislative Assembly pursuant to the motions passed during the emergency sitting does not hold water. With that, the second motion passed yesterday does not hold water as well.

The case of Datuk Amir Kahar was decided by the High Court and till today, there is no case that overruled that case. However, the position may change if the Federal Court differs its opinion from Datuk Amir Kahar's case, as it has the power to do so. But for now, Datuk Amir Kahar's case stands.

Enough with the above, I would like now to reproduce the press statement made by Pairin Kitingan on 17th March 1994 (and how I wish that Nizar would follow Pairin's footstep in stepping down gracefully) (the bold is mine): -

Events in the last few days have forced a situation where we must tread carefully to avoid a further deterioration of the political situation. The turn of events have brought about a situation much different from that of 21 February 1994 when I was sworn in as the Chief Minister of Sabah after the Parti Bersatu Sabah had won 25 seats. With the appointment of the six nominated Assemblymen the total was brought to 31 seats. The situation is now reversed with the Barisan Nasional having the majority of 33 seats to PBS's 21 thus paving the way for it to form the next government.

By convention, the Chief Minister will have to resign if the ruling party no longer has the majority support of the Assemblymen. Under the present circumstances, where the PBS majority is greatly reduced with the mass exodus of its Assemblymen to the BN, my position as Chief Minister is no longer tenable. Having taken all matters into consideration, I have, therefore, decided to resign from the post of Chief Minister.

It is a sad decision for me but nonetheless I truly feel this is the most honourable thing to do under the present circumstances. I would like to take this opportunity to thank each and everyone of you for your full support to ensure Parti Bersatu Sabah's victory in the just concluded state elections.

We truly appreciated your mandate to give us another chance to govern the state.

In the context of what has transpired over the last few days, it is clear that some changes have occurred that tipped the balance of support in favour of the BN. I am now acknowledging the need to respond honourably to the situation. I made this decision to resign with a clear conscience and in the knowledge that I had tried to do my best for the people and the state in the past nine years.

As I offer my thanks and appreciation to the people of Sabah for giving us their trust and confidence, I would also like to take this opportunity to congratulate the new Chief Minister and his government which will be formed today.

It is my hope too that the new government will continue to look after the interests of the people and the state and world to ensure a developed, progressive and just society.

I would also like to assure the new Chief Minister and his government that I will cooperate and do my part to serve the people and the state. I sincerely wish him all the best.