When the court interprets a will, not the constitution
FEB 23 — Constitutional expert says that when the court interprets the constitution like a will, the constitution will die. Unfortunately that was exactly the Federal Court did in the legal battle between Datuk Seri Nizar Jamaluddin and Datuk Seri Zambry Kadir. On Feb 11, 2010 the Federal court officially signed a death warrant to the Perak constitution.
In its judgment, the apex court, inter alia, dismissed Nizar’s argument on the necessity of having a vote of no-confidence passed by the Perak state legislature in order to determine whether Nizar had really ceased the command of confidence of his peers. The reason given by the court in rejecting Nizar’s contention was rather amusing .The court said nowhere was it stated in Article 16 (6) of the Perak Constitution that confidence must be tested via a vote of no-confidence in the state assembly.
A short answer to such a preposterous reason is if the phrase of vote of no-confidence exists in Article 16 (6), would Nizar have needed to go to court in the first place. If such a phrase exists, does Nizar need to ask the court to interpret something which is plain and obvious? If the Federal Court’s duty is merely to interpret the plain and obvious language of the law, any Tom, Dick, and Harry is equally fit to be appointed as Judges.
Granted we do not find anywhere in Article 16 (6) the phrase of vote of confidence. But the absences of particular phrases or provisions are common in any written constitution, including ours. Let us ask our learned Judges of the apex court: Can you show us any provision indicating the existence of the office of deputy prime minister in the Federal Constitution?
We have so many committees in the Cabinet and Parliament despite the fact that the existence of such committees are not enshrined in the constitution. Using the court’s logic, Datuk Seri Najib Razak should not have appointed Tan Sri Muhyiddin Yassin as the deputy prime minister simply because that post is not mentioned anywhere in the Federal constitution. Using the court’s logic, Muhyiddin should vacate his post as it is not justified under the constitution.
The issue is, why does our Government still maintain such practices, e.g. the appointment of deputy prime ministers despite the absence of specific provisions in the Federal constitution governing such practices?
The answer lies in constitutional conventions. Constitutional conventions supplement what is wanting in the constitution. Constitutional convention, as stated by Sir Ivor Jennings, is one of the sources of the constitution. Jenning said constitutional conventions are “the flesh which clothe the dry bones of the law”. They are the non-legal rules which make the legal rules work.
It is submitted that constitutional convention endorses the practice of having a vote of no-confidence in the state assembly as a measure of support for any mentri besar. There are some other funny items in the court’s decision. The court had quoted the decision of Raja Azlan Shah J (as he then was), which held that in construing the Constitution, the court should not be guided by precedents of other jurisdictions, especially India.
Yet the court, in justifying the dismissal of Nizar, ironically quoted and applied Indian authorities. When the court quoted an Indian precedent, it conveniently ignored the stark and different languages used in the Indian Constitution and Perak Constitution.
The reason why the Governor in India has the power to dismiss the Chief Minister is so plain and obvious — the Indian constitution gives such express powers to the Governor. No such power is vested in the Sultan in Perak Constitution.
Historically, the Reid Commission did suggest having such express power for the King to dismiss prime minister, but for some reasons, such a suggestion was not incorporated in our highest law. It is believed such a suggestion was not entertained in order to keep the constitutional monarchy in its proper place.
Even after decision of Stephen Kalong Ningkan, the Federal Government amended the Sarawak Constitution to give express power for the Governor to sack the chief minister. But the lifespan of such a law was very short. The Federal Government thereafter repealed such an express provision.
Nizar’s lawyers forcefully argued that if indeed Umno wanted the Sultan to have the power to sack Nizar, why was such a significant provision was not inserted into Constitution of Perak? Unfortunately, the Federal Court failed to address that sound argument in its 47-page judgment.
Thus, what we have is that, on one hand, the court reminding itself not to resort to Indian authorities when construing our constitution, but on the hand, seeking assistance from Indian precedents in order to interpret Perak Constitution. And the most devastating part is that the court could not be bothered to distinguish the different phraseology employed in the Indian constitution.
The Perak legal tussle revolves primarily on the mechanism of determining the loss of confidence of mentri besar. Article 16 (6) is silent whether such a measure must be determined in the state assembly or elsewhere, and either by votes or other means.
In the absence of such a mechanism, the court held that the determination of the loss of confidence may be made outside the state assembly. Thus, the court said the determination in the Palace was valid and constitutional.
In his book “document of destiny” Prof Shad Faruqi categorically stated that “the Federal Constitution gives no power to the Monarch to dismiss a Prime Minister unless there has been a vote of no confidence passed against him in the lower House. This is evident from Articles 43 (4), 43 (5) and the Sarawak case of Stephen Kalong Ningkan.”( p.443 ). It seems that the opinion of the writer is no longer valid in view of the decision of the Federal court.
The far reaching consequence of this perverse ruling is that it allows the downfall of any legitimate government, chosen by the people in elections, not through a democratic process via a lively debate in the state assembly — the domain of state assemblymen.
Instead, the court endorses the downfall of any legitimate government in any other places. The downfall may take place in the palace or at the golf course or in a hospital ward; depending where the politicians seek audience with the Sultan.
The downfall of Nizar’s government took place in the palace with the presence of Najib. But who knows if the downfall of Najib’s government won’t take place in a golf course when Datuk Seri Anwar Ibrahim meets the King there?
* The views expressed here are the personal opinion of the columnist.