Dato' Stephen Kalong Ningkan's case re-emerges in Perak

Sunday, February 08, 2009

Dato' Stephen Kalong Ningkan's case re-emerges in Perak

I have been away for more than two weeks and practically for the last five days I was out of reached. When I came back yesterday I found that the state of Perak was and still is in turmoil.

The irony is, there was a striking similarity with the case of Dato' Stephen Kalong Ningkan, which has never been overruled, which I have re-produced below in verbatim from the law report.

Another irony is that, in Ningkan's case, Tun Abdul Razak was behind the scene. This time in Perak, his son, Najib Abdul Razak is behind the scene. The name of Chief Minister Minister of Sarawak, who was the victim of wrongful dismissal began with letter "N" (Ningkan)and the name of the Chief Minister of Perak, who is the victim of the current wrongful dismissal also begins with letter "N" (Nizar).

It is pretty obvious His Royal Highness, the Sultan of Perak, both under Perak's constitution or by tradition of constitutional convention, HAS NO POWER to remove the Chief Minister/Menteri Besar of Perak. HRH can only appoint but not remove.

Under Article 16(6) of the Constitution of the State of Perak HRH only possess the power to remove any member of the Executive Council BUT NOT THE MENTERI BESAR.

On matters of appointment of Menteri Besar the Constitution of the State of Perak was crafted in similar language. There was no provision for the dismissal of the Chief Minister by the Ruler (the Sultan). The Chief Minister can only be removed by a vote of no-confidence taken in the Dewan Undangan Negeri (DUN). If he is defeated in the DUN through the motion of vote of no confidence, the Menteri Besar must tender his resignation and the rest of his Executive Councillors en bloc or dissolves the DUN and calls for a fresh election. But if the ruler refuses to give consent to dissolve the DUN, the Chief has no choice but to tender his resigntion.

By way of constitutional convention the Ruler should not withhold his consent to dissolve the DUN. But if he does, he is also not wrong in law or acting unconstitutionally. He is only defying the constitutional convention, which in essence will subject himself to legitimate criticism and controversy. Such criticism will definitely cause HRH to suffer disrepute.

Therefore, in my opinion, as someone who is quite well-versed on constitutional law, HRH the Sultan of Perak has acted unconstitutionally. HRH being a constitutional monarch does not possess unfettered freedom in the exercise of his constitutional duty. One of that is the removal of the Chief Minister. Dismissal of Menteri Besar Mohamad Nizar by HRH Sultan Azlan Shah was therefore unconstitutional, ulra vires the Constitution and therefore null and void and of no effect. Mohamad Nizar Jmaluddin is therefore still the rightful Chief Minister unless and until he is defeated in a vote of no-confidence in the State Legislative Assembly (DUN). The purported appointment of Zambry Abdul Kadir as the new Menteri Besar was therefore wrongful and unconstitutional, null and void and of no effect as the State of Perak cannot have two Chief Ministers simultaneously.

The fact Barisan Nasional believes that it has the majoirty in the DUN does not give it an automatic right to form the government. Once there is already a Menteri Besar, it is not for the Sultan to determine which member of the DUN commands the confidence of the majority of the DUN, but for the DUN members themselves to express the same through a motion of condifence/no-confidence in the DUN. If HRH refuses to dissolve the DUN then he must convene the DUN to sit and vote of no-confidence be taken after a proper motion has been table. As for now there is no doubt Mohamad Nizar is the rightful Chief Minister.

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