Ex-Justice NH Chan's critique on Nizar versus Zambry Verdict.

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Dipaparkan disini tulisan mantan Hakim Mahkamah Rayuan NH Chan mengenai keputusan 5 panel hakim mahkamah persekutuan yang bersidang pada 9 Feb 2010 yg lalu .

The Monarch Has No Power to Sack Any Member of The Cabinet Exco
22 March, 2010
By NH Chan

The reality is neither the King nor the Sultan has any power to sack the Prime Minister/Menteri Besar or the other cabinet ministers/executive councillors

I have divided this primer to a monarch’s powers in two sections.

Section One deals with the appointment of the Prime Minister/Menteri Besar and other Cabinet Ministers/Executive Councillors by a constitutional monarch.

Section Two will deal with the constitutional monarch’s power to dismiss the Prime Minister/Menteri Besar or other Ministers/Executive Councillors.

Before I embark on the basic or known law on the dismissal of a Prime Minister/Menteri Besar and of the rest of the Cabinet Ministers/Executive Councillors by a constitutional monarch, I should first explain the known law on how they are appointed by the monarch.

Section One

The appointment of the Prime Minister/Menteri Besar and the Cabinet/Executive Council
The Federal Constitution
Article 43(2) says:

(2) The Cabinet shall be appointed as follows, that is to say:

(a) The Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House; and

(b) He shall on the advice of the Prime Minister appoint other Menteri (Ministers) from among the members of either House of Parliament (The emphasis is supplied by me)

Article 43(2)(a) deals with the appointment of the Prime Minister by the Yang di-Pertuan Agong (King) who in his judgment is likely to command the confidence of the majority of the House of Representatives.

Article 43(2)(b) deals with the appointment of the other Ministers by the King on the advice of the Prime Minister.

The Laws of the Constitution of Perak

Now, compare Article 43(2) of the Federal Constitution with Article 16(2) of the Laws of the Constitution of Perak.
Article 16(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 judgment is likely to command the confidence of the majority of the members of the Assembly; and

(b) He shall on the advice of the Menteri Besar appoint not more than ten nor less than four other members from among the members of the Legislative Assembly; (I have supplied the emphasis)

Article 16(2)(a) deals with the appointment of the Menteri Besar by the Sultan who in his judgment is likely to command the confidence of the majority of the Legislative Assembly.

Article 16(2)(b) deals with the appointment of the other Executive Councillors by the Sultan on the advice of the Menteri Besar.

You will notice the striking similarity between the Federal and the Perak State Constitutions on the appointment of the Prime Minister and the Menteri Besar, and the appointment of the other Ministers and Executive Councillors.

The King/Sultan appoints the Prime Minister/Menteri Besar “who in his judgment” is likely to command the confidence of the majority of the House of Representatives/Legislative Assembly

The question here is, does the phrase “who in his judgment” confer on the constitutional monarch a discretion to appoint any person to the post of Prime Minister/Menteri Besar as he pleases?

Both Article 43(2)(a) of the Federal Constitution and Article 16(2)(a) of the Perak Constitution use the same wording, viz.: The King/Sultan shall appoint a Prime Minister/Menteri Besar to preside over the Cabinet/Executive Council a member of the House of Representatives/Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the House/Assembly.

The phrase “who in his judgment” by itself means nothing more than “who in his opinion.” It carries no further meaning than what is stated by Lord Diplock in Teh Chang Poh v Public Prosecutor [1979] 1 MLJ 50, at 52 where he explains the concept of a monarch in a constitutional monarchy. However, when it concerns the appointment of a Prime Minister or a Menteri Besar the phrase “who in his judgment” must be read together with:

Article 40(2) of the Federal Constitution:

(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:

(a) the appointment of a Prime Minister;

(b) the withholding of consent to a request for the dissolution of Parliament;

Or in the Perak Constitution, Article 18(2):

(2) His Royal Highness may act in his discretion in the performance of the following functions … that is to say:
(a) the appointment of a Mentri Besar,

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

The combination includes the phrase “may act in his discretion” and it means – according to the dictionary meaning of the word “discretion” – the King/Menteri Besar has the freedom to decide what should be done in a particular situation, freedom or authority to make judgments and to act as one sees fit.

The King/Sultan, therefore, has the discretionary power to appoint any
person to be Prime Minister/Menteri Besar as he pleases subject only to his own perception of the person most likely to command the confidence of the majority of the members of the House of Representatives/Legislative Assembly.

But, it is necessary to point out that in the Perak case of Nizar v Zambry, the Sultan has no power to appoint Zambry as the Menteri Besar because Nizar was still the holder of the office. It is only when the office is vacant would the Sultan be able to appoint another person to the office of Menteri Besar.

The unconstitutional appointment of Zambry to the post makes him an imposter. This is a blatantly unconstitutional exercise of a non-existent executive power by a pretentious constitutional monarch. Are we back to the days of the pretensions of King Charles I?

A constitutional monarch has no executive power except that which the law allows him. And the Constitution of Perak would only permit the Sultan to act in the performance of a few discretionary functions stated in Article 18(2). In relation to the office of Menteri Besar Clause (2)(a) applies. It says:

(2) His Royal Highness may act in his discretion in the performance of the following function … that is to say:

(a) the appointment of a Mentri Besar,

Clause (2) (a) is clear enough. The Sultan only has the discretionary function to appoint a Menteri Besar. So that as long as Mohammad Nizar Jamaludin is still in office as Menteri Besar, the Sultan has no other discretionary function to appoint another person. Therefore, the Sultan’s appointment of Zambry Abdul Kadir is an unconstitutional exercise of a non-existent discretionary function to appoint a second Menteri Besar.

In reality the Sultan has no executive power to sack the incumbent Menteri Besar, Nizar Jamaludin at all (see my critique on the judgment of the Federal Court in Nizar v Zambry).

The King/Sultan shall on the advice of the Prime Minister/Menteri Besar appoint other Ministers/Executive Councillors from among the members of either House of Parliament/the Executive Council Article 43(2)(b) of the Federal Constitution states:

(b) He shall on the advice of the Prime Minister appoint other Menteri (Ministers) from among the members of either House of Parliament. (The emphasis is supplied by me)

And Article 16(2)(b) of the Perak Constitution states;

(b) He shall on the advice of the Mentri Besar appoint not more than ten nor less than four other members from among the members of the Legislative Assembly; (The emphasis is supplied by me)

As you can see in both the Federal and the Perak Constitutions the King/Sultan appoints the Cabinet Ministers/Executive Councillors on the advice of the Prime Minister/Menteri Besar.

What does “on the advice of” mean?

It means the King/Sultan has to act on the order of the Prime Minister/Menteri Besar. The constitutional monarch has no option. He must act as he is told. This is how Lord Diplock explains it in Teh Chang Poh v Public Prosecutor [1979] 1 MLJ 50, at 52:

Although this, like other powers under the Constitution, is conferred nominally upon the [King/Sultan] by virtue of his office … and is expressed to be exercisable if he is satisfied of a particular matter, his functions are those of a constitutional monarch … he does not exercise any of his functions under the Constitution on his own initiative but is required by Article [43(2)(b) or 16(2)(b) of the Federal and Perak Constitutions, respectively] to act in accordance with the advice of the [Prime Minister/Menteri Besar].

So that the phrase “on the advice of” the Prime Minister/Menteri Besar means “on being told or notified” by the Prime Minister/Menteri Besar.

The King/Sultan does not act on his own initiative. He can only act as he is told or instructed or notified by the Prime Minister/Menteri Besar.

Source: Bernama

Section Two
Has the Constitutional Monarch any power to dismiss the Prime Minister/Menteri Besar or any member of his Cabinet/Executive Council?

In the case of the sacking of a Deputy Prime Minister and any other Ministers there is Article 43(5) of the Federal Constitution. In the case of the dismissal of a member of the Executive Council in Perak there is Article 16(7) of the Perak Constitution.

Article 43(5) of the Federal Constitution states:

(5) Subject to Clause (4), Ministers other than the Prime Minister shall hold office during the pleasure of the Yang di-Pertuan Agong, unless the appointment of any Minister shall have been revoked by the Yang di-Pertuan Agong on the advice of the Prime Minister but any Minister may resign his office.
This is what Clause (5) of the Constitution meant:

(a) All the Ministers (except the Prime Minister) hold office during the pleasure of the King.

(b) Unless (it means “except when”, “if not”) the appointment is revoked by the King on the advice of the Prime Minister.

(c) But a Minister may resign his office.

But what do the phrases that I have highlighted above really mean?

(a) The phrase “during the pleasure of the King” means “I choose to, and therefore of course shall, do it or have it done” – an imperious statement of intention. The idiom is based on the definite special sense of pleasure with possessives (my, his, the king’s, etc.), viz. one’s will, desire, choice (The accused was found guilty but insane and was ordered to be detained during Her Majesty’s pleasure). : Fowler’s Modern English Usage, second edition revised by Sir Ernest Gowers, OUP, 1965. So that all Ministers, except the Prime Minister, hold office on the King’s will, choice. And they will remain in office as such until or

(b) Unless the appointment is revoked by the King on the advice of the Prime Minister. The word “unless” means “until” or “except when” the appointment is revoked on the advice of the Prime Minister.

So that (a) and (b) together mean that a Minister (other than the Prime Minister) shall remain in office until or except when the appointment is revoked by the King/Sultan on the advice of the Prime Minister.

(c) Or the Minister may resign his office.

One thing that we are sure of, the phrase “during the pleasure of” does not mean that the King can sack any Minister at will. The phrase “during the pleasure of” has a distinctive meaning – it means that he shall hold office as such Minister unless the appointment is revoked by the King on the advice of the Prime Minister. Effectively, the appointment of a Minister can only be revoked by the Prime Minister because the King has no option but to act as he is told (advised).
Article 16(6) and(7) of the Perak Constitution state:

(6) If the Mentri 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.

(7) Subject to Clause (6) a member of the Executive Council other than the Mentri Besar shall hold office at His Royal Highness’ pleasure, but any member of the Council may at any time resign his office.

Clause (7) means that a member of the Executive Council (except the Menteri Besar) holds office at the Sultan’s pleasure which, as I have already explained, means that he stays in office as an Executive Councillor on the Sultan?s will or choice.

The phrase “at the Sultan’s pleasure” does not mean that the Sultan can sack an Executive Councillor at will. I have previously subscribed to the notion that the Sultan can sack an Executive Councillor at will but I now realise that I was wrong.

Luckily what I have said previously was obiter (it means “a thing said by the way”:

The Oxford Dictionary for Writers and Editors, Clarendon Press, Oxford, 1981). But in law obiter dictum means “a remark by the judge which is outside the content of his judgment – plural: obiter dicta. (See Le Mot Juste – a dictionary of classical & foreign words and phrases.)

However, unlike a Minister who can be sacked by the Prime Minister, neither the Menteri Besar nor the Sultan can sack an Executive Councillor. There is no provision for this in the Perak Constitution. However, under Clause (7) “any member of the Council may at any time resign his office.”

Clause (6) of Article 16 only allows the Menteri Besar to “tender the resignation of the Executive Council” en bloc. So that even though an Executive Councillor can at any time resign his office, the Menteri Besar could not sack him.

However Clause (6) will only apply when “the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly.” But who is to say that? Certainly, it is not for the Sultan to say so. The Perak Constitution does not confer the Sultan with any power to determine that the Menteri Besar has lost the confidence of the majority of the Legislative Assembly. He is only a constitutional monarch with no additional power to make such a determination.

In reality the Sultan’s functions are those of a constitutional monarch and this means that he does not exercise any of his functions under the Constitution on his own initiative. He has to abide by the collective opinion or decision of the majority of the elected representatives in the Legislative Assembly.

So that until it has been established by the Legislative Assembly that the Mentri Besar no longer command the confidence of the majority of the members of the Legislative Assembly, then only would the Meenteri Besar be required to tender the resignation of the Executive Council en bloc. But if he doesn’t do that, there is nothing the Sultan could do about it. He has no power whatsoever under the Constitution to sack the incumbent Menteri Besar.

However, there would be no need for the Menteri Besar to resign the Executive Council if the Sultan had acceded to the Menteri Besar’s request to dissolve the Assembly.

But the Sultan can withhold his consent to dissolve the Legislative Assembly.
This is provided in Article 18(2)(b) of the Perak Constitution. It says:

(2) His Royal Highness may act in his discretion in the performance of the following functions ? that is to say:

(a) the appointment of a Menteri Besar,

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

The reality is, neither the King nor the Sultan has any power to sack the Prime Minister/Menteri Besar

You can see at once that Article 43(5) does not apply to the Prime Minister. This is the only provision in the Constitution where a Minister – a deputy Prime Minister is a Minister – can be sacked: see my article, Was the sacking of Anwah Ibrahim from the Cabinet 11 years ago lawful?

Article 43(5) exempts the Prime Minister from its application. There is no other provision in the Constitution where the King is empowered to sack the Prime Minister.
Nor is there any provision in the Perak Constitution where the Sultan has the power to sack the Menteri Besar. Article 16(6) of the Constitution of Perak, as I have explained above, does not empower the Sultan to command the Menteri Besar to vacate his office.

P/S
Sesungguhnya keputusan yang dibuat sebulat suara oleh 5 panel hakim mempunyai risiko yang amat tinggi bagi masa depan pemerintahan Malaysia kerana ianya akan dijadikan dahuluan (precedent) untuk generasi akan datang, dimana sesaorang PM/MB boleh dipecat oleh Agong/Sultan tanpa usul undi tak percaya dalam dewn rakyat /dewan undangan negeri. Cuma memerlukan seorang wakil rakyat membawa sejumlah wakil rakyat yg bersedia melompat bagi mendapat simple majoriti, dan sesebuah kerajaan bolih tumbang dalm istana, atau dimana saja. tak perlu di DUN atau Parlimen. Dgn lain perkataan tidak perlu pilihanraya untuk mendapat mandat rakyat. Agong/Sultan akan tentukan siapa PM/MB!!

Posted by Dato' Seri Ir. Haji Mohammad Nizar Jamaluddin