The Dismissal and Appointment of Menteri Besars in Perak

An Analysis
By
Hardial Singh Khaira LL.B(Hons)(U.Malaya); LL.M(U.W.Australia)
Honorary Research Fellow, Murdoch University

It may be best to consider the current Perak constitutional crisis, in relation to the dismissal
and appointment of Menteri Besars, by first bearing in mind a pertinent quote by the
eminent constitutional writer, S.A. de Smith that was quoted by Harley Ag. CJ in Stephen
Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli1 (hereinafter referred to as Stephen
Kalong Ningkan No.1):

In some political situations a judicial duty to rule upon the legal merits of the case may have to be
accepted as an inescapable obligation. ... In an atmosphere highly charged with political tension the
task of the judges may be acutely embarrassing, especially if they are called upon to decide between
two claimants to legitimate political power, of whom one commands the effective means of
imposing his will and the other is able to marshal equally or more persuasive legal arguments.2

Raja Azlan Shan, the Sultan of Perak, who was once a judge himself, has unfortunately
become embroiled in the constitutional crisis because he purported to exercise a power of
dismissal which this article will show he never possessed. It is therefore equally important
to remember his own words in Dato Menteri Othman bin Baginda & Anor v Dato Ombi
Syed Alwi bin Syed Idrus3 that a ‘constitution, being a living piece of legislation, its
provisions must be construed broadly and not in a pedantic way’.4 That a constitution
should not be construed pedantically is also supported by the views of Tan Chiaw Thong J
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)5 (hereinafter to as
the Kitingan case No.2) when he said:

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 AG of the Commonwealth ex relatione McKinlay v The Commonwealth of Australia (1975) 135
CLR 1, 17, 7 ALR 593).6

The structural overview (below) of the cases that have decided issues of dismissal and
appointments of Chief Ministers in Malaysia show just how difficult a task is faced by the

1 [1966] 2 MLJ 187

2 S.A. de Smith, The New Commonwealth and its Constitutions, p. 87, quoted in Stephen Kalong Ningkan No.1 at p. 195.
3 [1981] 1 MLJ 29
4 Ibid, at page 32
5 [1986] 2 MLJ 420
6 Ibid, at pp. 467-468. Underlined emphasis added.

1
courts in deciding the issues objectively. A judicial resolution of the crisis is being
demanded where a political resolution is warranted.

Dismissal and Appointment of Chief Minister or Menteri Besar

ADEGBENRO v AKINTOLA
STEPHEN KALONG NINGKAN (Privy Council)
Loss of confidence not limited to KITINGAN CASE 1994
FACTS
Assembly and could be based on other FACTS
Loss of support in letter to Governor
material as well Loss of support in petition to Yang di-
21 out of 42 members signed letter with
Refused to apply English Pertua Negeri
one just being a ‘chop’
constitutional conventions as there Withholds consent to dissolve Assembly
Governor dismissed Chief Minister and
was a written constitution Pairin Kitingan accepted loss of confidence
appointed new Chief Minister
and resigned as CM but did not tender
resignation of cabinet
New CM and cabinet appointed
KITINGAN CASE 1985
HELD FACTS
Loss of confidence only Tun Mustapha appointed CM even
by a vote in the Legislative though in minority
Assembly Yang di-Pertua Negeri forced into HELD
Governor could not making appointment Resignation of Pairin Kitingan meant
dismiss the Chief Minister Yang di-Pertua Negeri next dismissed dissolution of his cabinet as well
in any circumstances him and appointed Pairin Kitingan as Once CM knows there is loss of
Adegbenro distinguished CM confidence – should not wait for vote but
and not followed resign honourably
Rejected argument that Adegbenro applied - Loss of confidence
even if there was no not necessarily only by vote in Assembly
express power to enforce HELD and other methods could be used to
the resignation of a Chief Involved legal and constitutional issues and ascertain it
Minister, that power lay by not just discretion of Yang di-Pertua Negeri Rejected argument that even if there was
implication with the and therefore justiciable no express power to enforce the
Governor Nominated members cannot be taken into resignation of a Chief Minister, that
consideration when deciding who should be power lay by implication with the Yang
appointed as CM di-Pertua Negeri
Signed and sealed instrument of Prepared to apply constitutional
appointment required for effective and conventions
valid appointment
Taking of Oath not sufficient for valid
appointment
Legally appointed CM can only be
dismissed after vote of confidence in
Assembly

PERAK CONSTITUTIONAL CRISIS Stephen Kalong

FACTS Ningkan & Kitingan
Decided in all cases - PR members defected and support BN (1985) cases – not
the Chief Minister Sultan of Perak meets members of prepared to apply
appointed by Head of Assembly to ascertain ‘loss of Interpretation Acts that
State but does not confidence’ in appointed MB states if there is power to
hold position at ‘his Withholds consent to dissolve appoint it shall be implied
pleasure’ - No power Assembly that there is also power
of dismissal Dismisses MB and appoints new MB to dismiss

Stephen Kalong Kitingan case –

Ningkan – vote of
confidence must be in
Assembly
Adegbenro &
Kitingan cses – can
be determined by
other means and not
confined to Assembly
Perak Constitution - Honourable thing
Discretion to appoint Kitingan case -
Legally appointed was for Chief Minister
Menteri Besar – not to resign once aware
justiciable. can only be
dismissed after vote of loss of confidence
but no power to dismiss. and not necessary for
Kitingan cases – if Head of of confidence in
Assembly vote of confidence
State acts unconstitutionally
or illiegally – justiciable.

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The current constitutional crisis in Perak has thrown up some serious issues that need to be
considered. What makes it difficult for any objective adjudicator is the fact that the
precedents available seem to have been distinguished on the facts before the final decision
had been made. At the top of the hierarchy is the Nigerian case of Adegbenro v Akintola7 that
was decided by the Privy Council in 1963. Two important rulings were made by it.

Firstly, the ‘loss of confidence’ did not necessarily have to be determined on the floor of
the Assembly. Viscount Radcliffe in the Privy Council said:

The difficulty of limiting the statutory power of the Governor in this way is that the limitation is not
to be found in the words in which the makers of the Constitution have decided to record their
description of his powers... According to any ordinary rule of construction weight must be given to
the fact that the Governor’s power of removal is not limited in such precise terms as would confine
his judgment to the actual proceedings of the House, unless there are compulsive reasons, to be
found in the context of the Constitution or to be deduced from obvious general principles, that would
impose the more limited meaning for which the respondent contends.8

Secondly, English constitutional conventions were not to be applied where there were
written constitutions and reliance could be placed upon their express provisions. The Privy
Council said that conventions of the constitution as such were not laws at all and are
therefore not enforced by the courts. They could achieve the status of laws by the process
of statutory enactment but not by that of judicial recognition.

Constitutional Conventions

Harley Ag. CJ considered the views of Dicey9 on constitutional conventions and said that
‘the same principles apply mutatis mutandis to the Constitution of Sarawak’ and therefore
the ‘constitutional way out both for a British Prime Minister and for a Sarawak Chief
Minister is not by dismissal but by resignation.’10 Harley Ag. CJ also quotes some of the
following relevant passages on constitutional conventions from Dicey:

... the nation expects that a Minister who cannot retain the confidence of the House of Commons
shall give up his place, and no Premier even dreams of disappointing these expectations. (at p. 444)

But the sanction which constrains the boldest political adventurer to obey the fundamental principles
of the constitution and the conventions in which these principles are expressed, is the fact that the
breach of these principles and of these conventions will almost immediately bring the offender into
conflict with the courts and the law of the land. (at p. 445)

... the one essential principle of the constitution is obedience by all persons to the deliberately
expressed will of the House of Commons in the first instance, and ultimately to the will of the nation
as expressed through Parliament. (at p. 456)

7 [1963] 3 WLR 63; (1963) 7 JAL 99

8 (1963) 7 Journal African Law 99 at p. 105. Emphasis in italics and underline added.
9 Dicey, A.V., The Law of the Constitution: (10th edition), Chapter XV: The Sanction by Which the Conventions of the Constitution
are Enforced, pp. 444 to 457.
10 Supra, at p. 195. Italics emphasis added.

3
 Of course, therefore, a Minister or a Ministry must resign if the House passes a vote of want of
confidence. (at p. 457)

Stephen Kalong Ningkan No.1 is not good authority for the current situation in Perak where
the Menteri Besar has refused to resign even after it has become obvious that he does not
have the majority of the Assembly. It is important to keep in mind that a significant point
was not considered in Stephen Kalong Ningkan No.1 as Harley Ag. CJ decided that there
was no need to speculate on what would happen if an occasion arose for a resignation and
the Chief Minister refused to resign since in Stephen Kalong Ningkan No.1 the Chief
Minister had not refused to resign and there was no power to dismiss him.11 However,
Harley Ag. CJ, did say that he was not prepared to empower the Governor with the power
of dismissal as ‘(j)ust 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.’12 This was despite the argument by the defendant that in this situation at
least, the Governor should have a right of dismissal as otherwise the Constitution would
become simply unworkable.

Likewise, Abdul Kadir Sulaiman J in Datuk (Datu) Amir Kahar Bin Tun Datu Haji
Mustapha v Tun Mohd Said Bin Keruak Yang Di-Pertua Negeri Sabah & Ors13 said that
constitutional conventions could only be used in the aid of the construction and
interpretation of the constitutional provisions but not to override the express provisions of
the Sabah Constitution. Therefore, before a convention is invoked, the constitutional
provisions first needed to be looked at. He warned, in that case, that it was not just a matter
of merely looking at a constitutional convention and brushing aside the constitutional
provision.14 In the comparison of the State Constitutions (set out below), while there is a
requirement that the Chief Ministers and Menteri Besar render the resignation of the
Executive Councils/Cabinet there is no provision that requires them to resign their position
as well. If the Chief Ministers and Menteri Besar are required to tender the resignation of
the other members of the Executive – does that not also imply that they should tender their
own resignations as well? At best, it could be argued that there is a constitutional
convention that they should also resign their position, but then, constitutional conventions
are not meant to be enforced by law. The refusal to resign may not be the honourable thing
to do but based on the constitutional provisions and not conventions it is not illegal.

11 Ibid, at p. 194
12 Ibid. Underlined emphasis added.
13 [1994] 3 MLJ 737.
14 Ibid, at p. 746

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 Comparison of Sarawak, Sabah & Perak State Constitutions

SARAWAK SABAH PERAK

Article 6(3) – The Governor shall
appoint as Chief Minister a member of
the Council Negeri who in his judgment
is likely to command the confidence of
a majority of the members of the
Council Negeri and shall appoint the
other members mentioned in paragraph
(a) of clause (2) in accordance with the
advice of the Chief Minister from
among the members of the Council
Negeri.
Article 7(1) - If the Chief Minister
ceases to command the confidence of a
majority of the members of the Council
Negri, then, unless at his request the
Governor dissolves the Council Negri,
the Chief Minister shall tender the
resignation of the members of the
Supreme Council.
Article 7(3) - … a member of the
Supreme Council other than the Chief
Minister shall hold office at the
Governor’s pleasure.
Article 6(3) – The Yang di-Pertua
Negeri shall appoint as Chief
Minister a member of the Legislative
Assembly who in his judgment is
likely to command the confidence of
a majority of the members of the
Assembly and shall appoint the other
members in clause (2) in accordance
with the advice of the Chief Minister
from among the members of the
Assembly.
Article 7(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 other than the ex officio
members.
Article 7(2) – A member of the
Cabinet other than an ex officio
member may at any time resign gis
office by writing under his hand
addresses to the Yang di-Pertua
Negeri, and a member of the Cabinet
other than the Chief Minister or an
ex officio member shall hold office
at the pleasure of the Yang di-Pertua
Negeri.
Article XVI (2)(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.
Article XVI (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.
Article XVI (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.

Power of Dismissal

The provisions of the State Constitutions of Sarawak, Sabah and Perak (as set out above)
also show that the Chief Ministers of Sabah and Sarawak and the Menteri Besar, unlike the
other members of their Executive Councils, do not hold their office at the pleasure of the
Head of State. It is for this reason that the right to dismiss the Chief Ministers in Sarawak
was denied to the Heads of State of Sabah and Sarawak, and likewise, should be denied to
the Sultan of Perak.

On the issue of the dismissal of a Chief Minister, Tan Chiaw Thong J in the Kitingan case
No.2), endorsed the views of Harley Ag. CJ in Stephen Kalong Ningkan No.1 that a legally
appointed Chief Minister should only be dismissed in accordance with Article 7(1) of the
Constitution after a vote of no confidence had been taken against him in the Legislative
Assembly.15

15 Ibid, at p. 459

5
The Court in Stephen Kalong Ningkan No.1 was urged to fill a lacuna in the Constitution
that seemed to exist. It was argued that, even if there was no express power to enforce the
resignation of a Chief Minister, it lay by implication with the Governor. Some writers, and
in particular, Thio16 is critical that the Sarawak Constitution should be construed as giving
no power of dismissal to the Governor and submits that it is implicit in the constitutional
scheme that the Governor has a power of dismissal in the circumstances of the case in
Stephen Kalong Ningkan No.1.17 Thio believes that Harley Ag. CJ shrunk from his judicial
duties in not sealing what was an obvious gap in the Sarawak State Constitution as it would
have surely been more reasonable for the courts to adopt the ‘construction which would
accord most with the constitutional scheme devised under the Constitution rather than a
construction which would produce a gap in the Constitution, especially when this can be
achieved without any distortion of the language of the Constitution.’18

Interpretation Acts

In Stephen Kalong Ningkan No.1 Harley Ag. CJ declined to apply section 21 of the
Sarawak Interpretation Ordinance (Cap. 1) which provides that the power to appoint
includes the power to dismiss. He held that, in principle, the Sarawak Council Negri
should manage its own affairs.19 In the Kitingan case No.2 too, the High Court declined to
apply Section 29(3) of the Interpretation and General Clauses Enactment 1963 of Sabah
which provides that ‘(w)here any State law confers upon any authority or power to make
appointments to any office or place, the power shall, unless the contrary intention appears,
be construed as including a power to dismiss ... any person appointed ...’ and ruled that
there was ‘contrary intention’ to justify the interpretation that the Sabah Constitution did
not provide for the dismissal of the Chief Minister. Tan Chiaw Thong J in his judgment
said that the absence of express provision in the Constitution giving any power of
removal from office or dismissal showed that the Constitution did not intend that any
such power should be given to the Head of State as otherwise it would have expressly
said so like in the case of members of the Cabinet other than the Chief Minister. He
concluded by saying that he considered ‘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.’20

16 Thio, S.M., Dismissal of Chief Ministers, (1968) Vol. 8 No. 2 Malaya Law Review 283 at p. 283
17 Ibid, at p. 287
18 Ibid, at p. 288
19 Supra, at p. 193
20 Supra. at p. 468. Underlined emphasis added.

6
Denial of Request to Dissolve

An important issue that arises is whether the denial of the request to dissolve the Assembly
was unconstitutional as it was a breach of a constitutional convention. Here again there has
been a rejection of any invitation in the decided cases to apply constitutional conventions to
resolve the issue. For example, Harley Ag. CJ in Stephen Kalong Ningkan No.1 opined
that a Chief Minister may advise a dissolution but the Governor's refusal to dissolve, while
it might be conventionally unconstitutional, was not illegal.21

Justiciable

The courts have also ruled that the rulers are not autocratic rulers who have unlimited
discretion to act and therefore any act that involves a legal or constitutional power was
justiciable. In Stephen Kalong Ningkan v Government of Malaysia22 Ong Hock Thye FJ
remarked that

His Majesty is not an autocratic ruler since article 40(1) of the Federal Constitution provides that “In
the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall
act in accordance with the advice of the Cabinet ....”23

In Tun Datuk Haji Mohamed Adnan Robert v Tun Datu Haji Mustapha Bin Datu Harun;
Datuk Joseph Pairin Kitingan v Tun Datu Haji Mustapha Bin Datu Harun24 (hereinafter
referred to as the Kitingan case No.1), Tan Chiaw Thong J expressed the view that

(T)he issue of dismissal and the applicability of the Stephen Kalong Ningkan's case (1966) and
alleged legal power of dismissal as pleaded in the defence are issues that are legal and constitutional
in nature, and are therefore, in my opinion, issues that are justiciable and within the jurisdiction of
the Court to try them.25

When the appellants in that case appealed against the ruling of Justice Tan Chiaw Thong,
the Supreme Court basically endorsed the rulings made by him and decided that justiciable
issues did in fact arise for judicial determination in that case and the matter fell within the
jurisdiction of the court for adjudication. Abdul Hamid CJ delivering the oral judgment of
the Supreme Court said:

The mere fact that a litigant seeks the protection of a political right does not mean that it presents a
political question. Whether a matter raises a political question; whether it has been committed by the
Constitution to another branch of government is itself a matter for judicial determination because the
Constitution has made the Courts the ultimate interpreter of the Constitution. The Courts accordingly
cannot reject a bona fide controversy as to whether some action denominated ‘political’ exceeds
constitutional authority.26

21 Ibid.
22 [1968] 1 MLJ 119
23 Ibid, at pp. 125-126
24 [1987] 1 MLJ 471
25 Ibid, at pp. 474-475
26 Ibid, at p. 485

7
In conclusion it may well do to remember that there is obviously a constitutional
convention that enjoins a Chief Minister or Menteri Besar to resign if it becomes obvious
that he has lost the support of the majority of the Assembly. It was the course adopted by
Datuk Joseph Pairin Kitingan when he resigned as the Chief Minister of Sabah. The
English version of his letter of resignation stated that ‘(b)y convention, the Chief Minister
will have to resign if the ruling party no longer has the majority support of the
assemblymen.’27 His respect of the constitutional convention avoided an impasse
developing as it has in Perak. It is equally important to remember that if that constitutional
convention is not observed it does not mean that there is a legal right for the Head of the
State to dismiss him as courts have consistently declined to enforce constitutional
conventions. The final recourse still lies with the Legislative Assembly of the State.
Finally, the words of Harley Ag. CJ in Stephen Kalong Ningkan No.1 should be heeded
‘(t)hat political solution may well be the only way to avoid a multiplicity of legal
complications. Possibly all parties, and the people of this nation, in whom sovereignty is
supposed to lie, will wish the same solution.’28

The objective structural analysis29 of the resolution of the Perak constitutional crisis in line
with the decided legal authorities is set out below.

27 Datuk (Datu) Amir Kahar Bin Tun Datu Haji Mustapha v Tun Mohd Said Bin Keruak Yang Di-Pertua Negeri Sabah & Ors [1995] 1
MLJ 169 at p. 178
28 Supra, at p.195
29 This analysis is given before any decision has been made by the courts in Malaysia.

8
 Analysis of Dismissal and Appointment of Menteri Besars in Perak
Loss of support
caused by defection
of members. Sultan
determines loss by
having audience with
members not
supporting existing
MB.
Where there is loss
of support MB shall
resign or request to
dissolve Assembly
Request to dissolve
denied by Sultan.
Denial of request
within prerogative of
Sultan - Not
justiciable
Sultan dismisses
old MB (Nizar)
Whether old MB
(Nizar) compelled by
convention to resign
& if convention
enforceable?
Sultan’s Whether it
act was
illegal & justiciable?
unconstitutional
Sultan appoints
a new MB
(Zambry)
Whether loss of
support must be by Adegbenro case
vote of no (Privy Council) &
confidence in Kitingan case
Assembly or (1994 Sabah) –
extraneous means extraneous means
can be used? may be used.
Stephen Kalong
Ningkan case –
only a vote in
Assembly counts
Article XVI(6) Perak
Constitution - MB’s loss
of confidence if request Similar to
for dissolution not provisions in
granted – Shall Sarawak &
tender resignation of Sabah
Executive Council Constitutions
Kitingan case (1994
Sabah) – CM’s post
not at the pleasure of
Governor – Article
7(3) Sabah
Constitution – No
power of dismissal
Whether
Sultan had Article XVI(7)
the power Perak Constitution
to dismiss? - MB’s post not at
the pleasure of
Sultan – No power
of dismissal
Adegbenro &
Stephen Kalong
Ningkan –
conventions not
applicable and may
not be applied for
determination
ONLY LEGAL &
Stephen Kalong
Ningkan & CONSTITUTIONAL SOLUTIONS
Kitingan cases –
where Head of ** Menteri Besar (Nizar) should
State acts illegally
and constitutionally recognise constitutional
justiciable convention and resign
is
honourably (as Pairin Kitingan
Old MB (Nizar) did)
remains in power ** OR - Assembly should be
although has not dissolved
observed ** OR - Matter be resolved by
conventions & all the Assembly itself
acts of Speaker &
old Executive
Council vaild
9
[This article is a follow up to three earlier articles:

• Dismissal of Chief Minister: Stephen Kalong Ningkan (No.1): A Brief Analysis.

http://www.scribd.com/doc/14582045/Dismissal-of-Chief-Minister-Ningkan1

• The Use of Emergency Powers to Dismiss a Chief Minister - Stephen Kalong

Ningkan No.2. http://www.scribd.com/doc/14758514/Stephen-Kalong-Ningkan-
No-2-Use-of-Emergency-Powers]

• Appointment and Dismissal of Chief Ministers in Sabah - The Kitingan Cases

http://www.scribd.com/doc/14964883/Sabah-The-Kitingan-Cases]

10