Zambry’s Illegal EXCO

Why is Zambry’s EXCO illegal? Let us examine the late Tun Suffian’s interpretation.

First, the context.

Did Nizar tender the resignation of his EXCO?

1. Thus far, we have been asking the question whether the Sultan (HRH) may dismiss the Menteri Besar (MB). The High Court has ruled that HRH does not have such power, alternatively, the MB’s post cannot be deemed to have been vacated. The Court of Appeal - one judge has yet to deliver her written grounds - has ruled that HRH has the power, alternatively, the power to dismiss the MB is implicit upon the MB refusing to resign.

2. Thus far, the arguments have missed one very important issue. Indeed, it is the missing piece in the jigsaw puzzle. They are the words “shall tender the resignation of the Exco” i.e. the State Cabinet found in Article 16 of the Perak Constitution.

What is Suffian’s view of Article 16(6)?

3. Perhaps, the most authoritative comment on Article 16(6) of the Perak Constitution should come from the late Tun Suffian, whose understanding of the Malaysian Constitution and mastery of the English language is second to none. Suffian was part of the team advising the Rulers at the Reid Commission hearings. At p. 54 of his book, An Introduction to the Constitution of Malaysia, 2nd edition, Suffian writes:

When the Prime Minister who has lost the confidence of the majority tenders the resignation of the Cabinet and advises that Parliament be dissolved, the Yang Di Pertuan Agung may decide not to dissolve Parliament, but instead to invite another member of the House of Representatives, who in his judgment is likely to command the confidence of the majority of the members of the House, to form a government.

4. Suffian’s interpretation is that the Yang Di Pertuan Agung may appoint a new PM:

(a) only when the Prime Minister has tendered his resignation; and

(b) when Yang Di Pertuan Agung refuses the request for dissolution.

As Nizar never tendered his resignation, the condition precedent to allow HRH to appoint another MB cannot arise. Equally, as Nizar did not tender his EXCO’s resignation, Zambry cannot appoint a new EXCO. The Constitution forbids this.

5. Quoting Suffian again, “(i)n appointing the Prime Minister, the Yang Di Pertuan Agung also acts in his discretion … Other ministers are appointed by the Yang Di Pertuan Agung on the advice of the Prime Minister”.

6. At p. 55 of his book, Suffian continues, “Ministers other than the Prime Minister hold office at the pleasure of the Yang Di Pertuan Agung. This does not mean that the Yang Di Pertuan Agung may dismiss them at will. He may do so only on the Prime Minister’s advice”.

7. It would seem therefore that if HRH cannot dismiss the EXCO without advice, and as no such advice to dismiss has been given by Nizar, the present EXCO is invalidly and unconstitutionally holding office.

8. Although Suffian was writing about the Federal Constitution, his remarks are equally applicable to the Perak Constitution because the Federal and State Constitutions are identical. Article 43 (4) of the Federal Constitution and Article 16(6) of the Perak Constitution provide as follows:

If the Prime Minister (Menteri Besar) ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang Di Pertuan Agung (the Sultan) dissolves Parliament, the Prime Minister (Menteri Besar) shall tender the resignation of the Cabinet (EXCO).

9. In the media statement issued by HRH’s private secretary released on February 6, 2009, both the MB’s office and all EXCO positions would be deemed vacant if the MB and his EXCO refused to resign.

Limitations on Constitutional Monarchy

10. In a constitutional monarchy, HRH acts on the advice of the MB with regards to appointment and dismissal of EXCO members. Although the Perak Constitution says that EXCO members hold office at the pleasure of HRH, in practice they can do so only as long as they enjoy the confidence of the MB.

11. The Reid Commission Report must be read and understood by anyone interested in interpreting and understanding the Malaysian and State Constitutions. It states at para. 177:

In our opinion a constitutional Ruler is a Ruler with limited powers, and the essential limitations are that the Ruler should be bound to accept and act on the advice of the Menteri Besar or Executive Council, and that the Menteri Besar or Executive Council should not hold office at the pleasure of the Ruler or be ultimately responsible to him but should be responsible to a parliamentary assembly and should cease to hold office on ceasing to have the confidence of that assembly.

12. Professor Andrew Harding in his article, Crises of Confidence and Perak’s Constitutional Impasse, was merely echoing the views of the drafters of the Constitution when he said that “the conditions in Article 16(6) are stated as facts rather than judgments powerfully indicates an interpretation that no judgment is involved, and that the MB ceasing to command the confidence of a majority is simply a matter for the assembly’s decision”.

Must act only on advice

13. HRH can only act upon the advice of the MB in relation to his EXCO. Schedule 8, Part 1, paragraph 1A of the Federal Constitution (after the 1994 amendments) provides that whenever the Sultan is to act in accordance with advice, on advice, or after considering advice, the Sultan shall accept and act in accordance with such advice. In other words, HRH MUST act on advice.

14. Can HRH appoint a new EXCO if he has neither power to appoint nor to dismiss? The Perak Constitution allows only 10 persons to be appointed to the EXCO. It is only the MB who can advise HRH to dismiss the EXCO. As the MB himself neither resigned nor tendered the resignation of his EXCO, HRH cannot appoint another MB or new EXCO.

Can the office of EXCO be deemed vacant?

15. There is a view that if the MB resigns, the EXCO will collapse with him. This was so decided by Kadir Sulaiman J in the case of Datuk Amir Kahar v Tun Mohd Said Bin Keruak [1995] 1 CLJ 184. But there was no reference to the new constitutional provision of 1994 that the Ruler must only act on advice. This case is distinguishable because the Chief Minister there resigned so the question of Nizar’s EXCO being dissolved automatically does not arise.

16. But let us assume that the Federal Court dismisses Nizar’s appeal. What is the position of the EXCO? It is submitted that the appointments of the EXCO by Zambry is still unconstitutional because the previous members of the EXCO have neither resigned nor been dismissed on Nizar’s advice. Zambry will still have to advise HRH to dismiss the previous EXCO before appointing a new one and until that happens, all the acts and deeds of Zambry’s EXCO are illegal and void.

17. As a result of the 1994 amendments, there is a constitutional conundrum in the making. Any Ruler who dismisses the MB is bereft of any power to dismiss the EXCO because he can only do so upon advice from the MB.