Thursday 28 May 2009

Perak Crisis: BN Lawyer HAFARIZAM Given a Short Lesson 101 on Constitutional Law

Read here for more on ARTiculation Blog

NOT Clever Enough

Barisan Nasional's Lawyer in the
Perak Crisis

The Perak Crisis: Lawyer Art Harun's Rebuttal on Lord Lester's Opinion Quoted by BN Lawyer Hafarizam


Art Harun, Lawyer
NOTE: PM Najib had openly admitted that the BN had been advised by Lord Lester QC


"To adopt a literal approach would vest a certain level of absolute power in the Ruler where such power does not exist in the first place. Can we imagine a situation where the Ruler may decide mid-term to change an MB because he thinks that MB does not command the confidence of the majority anymore?

Lets not allow our emotion to colour our judgement by creating, or allowing to create, a dangerous precedent, a precedent which we all may live to regret later"

-Art Harun, 25 March 2008. Read here for more and here

What I said above (on 25 March 2008) has now become true.

His Royal Highness the Sultan of Perak had decided in mid-term to change the MB because HRH thinks that the previously appointed MB did not command the confidence of the majority anymore.

The above comment was posted on March 25th LAST year, when the whole nation was discussing the crisis in Terengganu and Perlis, where the Rulers in both states had refused to agree to appoint the candidate nominated by the leadership of the winning party as the Menteri Besar.

There was a populist school of thought then that the Rulers were well within their power to do so.I took a different stand.

I had always thought that the notion of "absolute power" rested in the Rulers is MISCONCEIVED.

Hafarizam Harun's Article

My learned friend, Hafarizam, is one of the Counsels for the BN in the Perak crisis. After the decision of the Court of Appeal reversing the High Court's decision on the Nizar v Zambry case, he publishes his takes on the issue on his blog.

As he was one of the lead Counsels in the case, and considering the fact that the PM had openly admitted that the BN had been advised by Lord Lester QC, I would presume that Hafarizam's position on the issue echoes that of Lord Lester's.
  1. Hafarizam's First point - the Practice in "other Commonwealth countries"

    I am reproducing verbatim the relevant part of what was said by Hafarizam:
    "Today's decision by the Court of Appeal is another high-watermark case on Constitutional law in Malaysia. It not only proves the point that I have been trying to make all along, but has placed Malaysian Constitutional jurisprudence at par with other Commonwealth countries, to wit a few, Australia, Canada and England itself, that the constitutional logic of the Constitution of Perak and the democratic imperative upon which the Constitution of Perak is based on the following thesis...

    The powers to grant a dissolution of Dewan Negeri Perak and to appoint the Mentri Besar and State Executive Council members are among the prerogatives of HRH the Sultan of Perak. Consensus amongst parliamentarians and commentators is that there are instances in which the Monarch may refuse to grant a dissolution, especially to a minority government.

    For example, minority Labour Government of Ramsay McDonald requested for a dissolution, Herbert Asquith (Prime Minister between 1908 and 1916) stated in The Times for 19 december 1923, which was quoted with approval in Marshall, Constitutional Conventions (1986), at 38: "The Crown is not bound to take the advice of a particular minister to put its subjects to tumult an dturmoil of a series of general elections so long as it can find other ministers who are prepared to give it a trial. The notion that a Minister - a Minister who cannot command a majority on the House of Commons - is invested with the right to demand a dissolution is as subversive of constitutional usage as it would, in my opinion, be pernicious to the general and paramount interests of the nation at large."

    In Canada, Governor General, Lord Byng, in 1926 refused to grant a dissolution to Prime Minister King after the latter's government had lost the support of members of other parties who provided its majority. There was no vote of confidence, but Prime Minsiter King imemdiately resigned. Mr Meighen, the opposition leader was invited form a government (see Hogg, Constitutional Law of Canada, 5th ed, at 9-30).

    Thus, the lauds and cries for 'Bubar Dewan' by fellow opposition members of 'Pakatan Pembangkang' are not only pernicious but has created deep division amongst the people of Perak.

    In hindsight, if YB Dato' Seri Ir Nizar has conceeded defeat on 4th February 2009, the people of Perak would not have to pay the heavy price of confusion, humilation and frustration the culmination of all was the the 7th May 2009 sitting."
  2. It is ironic that Hafarizam had referred to the (a) Ramsay McDonald affair and (b) the "King-Byng" crisis because these two instances ACTUALLY SUPPORT MY POSTULATION that:
    "The practice in the Commonwealth is that the Ruler had ALWAYS dissolved upon being requested and the Ruler had no absolute power to ask the Premier to resign."
    (Although) in the King-Byng crisis, the Governor General, Lord Byng had refused to dissolve upon King's request, (but) there were extenuating and special circumstances in that case. I will touch on this later in this post.

  3. Hafarizam's Misconception in the Ramsay McDonald Affair

    Hafarizam says (in his blog):
    "....the Monarch may REFUSE to grant a dissolution, especially to a MINORITY government..."
    (But) the Nizar-led Government in Perak is not a "minority Government". It is a COALITION Government.

    There is quite an obvious DIFFERENCE there.

    Difference Between Minority Govt and Coalition Government

    A minority Government is a Government consisting of a party with the single largest number of seats in the Assembly but that party's seats are less than the total seats held collectively by other parties in the Assembly.

    For instance, if DAP has 60 seats, while PKR has 30 seats and the BN has 40 seats, a DAP government would be a minority government because its seats are less than the total seats held by PKR and the BN.

    In Perak, the situation is NOT such.

    There, PAS, DAP and PKR formed a coalition and the total number of seats in their coalition was higher than the seats held by the BN. Thus, it is a coalition government.

    Hafarizam Was Wrong in Quoting Herbert Asquith

    Herbert Asquith could NOT have made the statement on 19th December 1923 in relation to Ramsay McDonald's request for a dissolution as quoted by Hafarizam because at that time, Ramsay McDonald wasn't even the Prime Minister yet!

    The whole affair must be told in sufficient detail if we were to use this affair as a precedent.

    The Facts on the Ramsey McDonald Case

    McDonald became PM in 1924 when he formed a minority (Labour) Government. As the Conservative had more seats, McDonald's Labour Party had to rely on the support of the Liberal Party.

    Motions for censure were initiated (McDonald). McDonald quickly resigned when the motions were amended to be one of no confidence. However, the day after the amendment, he asked for dissolution from the King.

    And what did the King do? The King DISSOLVED the Parliament and called for a fresh election. The Conservative won in the ensuing election and they formed a Government.

    (After) May 1929 election, McDonald again formed a minority Government as Labour only had 288 seats to the Conservatives' 260, with 59 to the Liberals. Again, he had to depend on the Liberals.

    To cut a long story short, his second minority Government did not last as well. During the Great Depression, his Government did not have any answer to the economics problem. His own cabinet was even split on the issue of public expenditure.

    McDonald then submitted his resignation.

    The King however persuaded him to form a "National Government" (something akin to the much talked about "Unity Government" which was being proposed by PAS recently).

    Note however that at this time, McDonald had submitted his resignation. He however did NOT ask for dissolution.

    The King, at his own initiative, persuaded McDonald to form a National Government.

    McDonald accepted that suggestion and formed a National Government, which was actually a coalition between all the parties in the Parliament. This was viewed as a betrayal by his own Labour party. He even sacked some of his senior ministers from the Labour Party.

    Needless to say, in 1931, the Conservative forced him to agree to a general election.

    Ramsey McDonald Case Does NOT Support Hafarizam's Position

    How does the Ramsay McDonald affair support Hafarizam's position?

    If at all, it supports :

    • my position that the Ruler (or in the UK then , the King) would dissolve the Parliament upon being requested.

    • my contention that the Ruler did not have the power to sack the Premier. Never at any time, the King asked for McDonald's resignation although it was crystal clear that McDonald did not command the confidence of the majority on two occasions.

  4. The King-Byng Crisis -Canadian Constitutional Crisis

    This episode involved Prime Minister MacKenzie King and the then Governor General, Lord Byng.

    In September 1925, (Prime Minister) King requested a dissolution. (Governor General) Byng granted it.

    (Following dissolution and after)the general election, Arthur Meighen's Conservative Party won 115 seats to 100 for King's Liberals while the Progressive Party had 22 seats.

    As the incumbent PM, King did NOT resign.

    He went to see (Governor General) Byng and told Byng that he wanted to form a minority Government with the support of the Progressive Party.

    (The next thing which happened is very important and to my mind explained why Byng had later refused to dissolve the Parliament upon being requested.) During that meeting, Byng had actually expressed his thoughts that perhaps King should resign and let Meighen form a government as his party had the majority seats.

    In Byng of Vimy (by Williams, at page 305), Byng was quoted to have said to King that he (King) ought not to ask for dissolution in the future unless Meighen was first given a chance to govern. King apparently tacitly agreed to this. King then went ahead to form a minority Government.

    His Government then was involved in a corruption scandal.

    The Progressive party's support (to King's Government) was dwindling. King's Government then lost 2 motions in the Parliament and was about to face another confidence motion.

    Against what was agreed previously, Prime Minister King asked for a DISSOLUTION. (Governor General Byng) REFUSED it.

    King presented an order-in-Council seeking a dissolution. Byng still refused dissolution.

    King then resigned.

    Byng appointed Meighen as PM and asked him to form a government, which he did.

    Governor General Byng was Criticised for Refusal to Dissolve Parliament

    Whatever was the motivation of Byng, he was heavily criticised for his refusal to dissolve. SA de Smith in his book, Constitutional and Administrative Law at page 106 viewed Byng was as being in an "embarrassing" situation. In fact, Byng's position became even more embarrassing when Meighan's Government only lasted for less than a week. Within a week of its formation, Meighan lost a vote of no confidence by one vote. Meighan quickly asked for a dissolution which Byng duly granted.

    de Smith argued in his book at the same page that the fact that Byng granted dissolution to Meighan while refusing King's request for one would open Byng to allegations of bi-partisanship. That would taint the office of the Governor General, which was supposed to be above politics, especially partisan politics.

    In a speech in 1997, the Governor General of New Zealand, Sir Michael Hardie Boys expressed the opinion that Byng had been in error in not re-appointing King as prime minister on the defeat of Meighen in the vote of confidence.

    Byng and Meighan were humiliated during the ensuing general election. King went to town to critisise Byng's initial refusal to dissolve. The result of all that was a victory with a clear majority for King, who was seen by the voters as a victim of Byng's indiscretion. Meighan was seen by the voters as the villain and he even lost his seat.

    Central to Byng's refusal to dissolve at King's request was also the tacit agreement that both of them had when King had insisted that he should continue to be the PM even though Meighan was clearly the majority holder in the Parliament earlier.
The King-Byng Crisis NOT Relevant to Perak's Case

This, needless for me to point out, was not the case in Perak.

HRH the Sultan had appointed Nizar as the MB of a coalition Government with a majority.

As far as information which are in the public domain is concerned, there was NO understanding between the Sultan and Nizar that:
  • Nizar ought not to ask for a dissolution and

  • in the event Nizar lost the confidence, Zambry ought to have been given a chance like Meighan. (In the Canadian case) King was losing support from the Progresive Party, an integral part of his minority Government.

  • Nizar did NOT lose any support from within his coalition, except for the 3 who had jumped ship.

  • There was also, at the point in time where dissolution was requested by Nizar, uncertainty over the position of the 3 "independent ADUNs" and their case were in Courts waiting for adjudication. Thus, even the loss of confidence was in doubt.
Contrast this to the clear and certain loss of confidence on King's Government when the dissolution was requested by him.

If we superimpose the scenario in the Byng-King affair and the Perak affair now, and considering the underlying disbelief by the people of Perak at what is currently happening, would it be too far fetched for me to conclude that the BN would be defeated badly if an election is called now?

I would even venture to ask whether Zambry would be able to hang on to his seat in that event. Meighan and the Conservative party of course found out the hard way in the ensuing election.

With all due respect, Hafarizam's reliance on the Byng-King crisis appears to be misplaced. It is clear that Byng was driven by a tacit understanding between him and King in not granting dissolution. However, history proved beyond doubt that what he (Byng) did was not in accordance with Constitutional spirit.

History also, I am afraid, will judge HRH's refusal to dissolve the Assembly.

The Discretion of the Sultan

On the power to refuse dissolution, Hafarizam said:
"The powers to grant a dissolution of Dewan Negeri Perak and to appoint the Mentri Besar and State Executive Council members are among the prerogatives of HRH the Sultan of Perak.

Consensus amongst parliamentarians and commentators is that there are instances in which the Monarch may refuse to grant a dissolution, especially to a minority government."
Hafarizam then went on to quote the McDonald and Byng-King affairs as examples.

I have shown above that the two incidences do in fact support my position that refusal of dissolution was uncalled for in the circumstances. I have also explained above that Hafarizam's position that the Perak Government is a minority one is not correct.

Article 18 (2) (b) of the State Constitution provides that HRH may act in his discretion in, among others, withholding of consent to a request for dissolution of the Assembly.

However, it does not necessarily mean that HRH has an absolute power in the matter.

The question is, and has always been, how should HRH exercise that discretion rather than whether HRH has an absolute power or otherwise.

The Role of Constitutional Conventions in Law

I must refer to a creature known as Constitutional Conventions.

A Constitution is the mother of all laws. In jurisprudential term, it is the "grund norm". It is a living and breathing document. It is impossible for any Constitution to provide for each and every probabilities and possibilities. Thus a Constitution may be as brief as the US' Constitution or as long as the Indian one.

It could also be unwritten as the British one. But what maintains the order of the state administration in matters where the Constitution is silence are the conventions, or accepted practices. It is when conventions are thrown out of the window that crisis happened.

de Smith in the same book, at page 55 says that "law and convention are closely interlocked." Foremost of all, Jennings, in The Law and the Constitution, says that constitution conventions "provide the flesh which clothes the dry bones of the law, they make the legal constitution work; they keep in touch with the growth of ideas."

de Smith summed up Dicey's position on adherence to conventions (in Dicey's Introduction to the Study of the Law of Constitution as follows:
"Dicey contended that the sanction which constraints the boldest political adventurer to obey a convention he might feel inclined to break was his fear that breach would almost immediately bring him in to conflict with the Courts and the law of the land."
de Smith then concluded that "obedience to conventions was therefore buttressed by the sanctions of strict law".

He further explains that "the sense of obligation and the fear of disagreeable consequences which tend to induce people to comply with conventions are broadly similar to the corresponding feelings which conduce to observance of the criminal law".

Such is the importance of constitutional conventions that any breaches of or departure from conventions might bring untold consequences. The fear of these consequences drives the compliance with the conventions.

In my humble view, and I say this with the greatest of respect to HRH the Sultan of Perak, the crisis in Perak was not caused by a lack of power. It was driven by a departure from conventions in the exercise of HRH's discretion.

What is the convention or accepted practice in relation to the refusal of dissolution under a Constitution which draws its form and substance from the Common Law and a Westminster styled democracy, you may ask?

HRH the Sultan of Perak himself succinctly put in HRH's book, "Constitutional Monarchy, Rule of Law and Good Governance" that "under normal circumstances, it is taken for granted that the YDP Agong would not withhold his consent to a request for dissolution of Parliament. His role under such situation is purely formal."

It is also clear that the Premier has the power to request a dissolution at any time of his own choosing. Wade and Phillips, in "Constitutional Law" posits that " no sovereign could constitutionally refuse to grant a dissolution of Parliament at the time of his (the PM's)choice".

It is also of considerable interest to note de Smith's observance that "some modern writers have argued that the usage of acceding to request has hardened into a binding convention never to refuse a request, or the power to refuse exists in theory but not in practice, or that the monarch is too remote from political realities or too likely to be swayed by conservative influence or prejudice or too vulnerable to criticism to exercise an independent discretion.

Hence such a refusal would now be highly controversial, unless the request itself was manifestly improper; and this fact alone must make any attempt at definition highly tentative."

The Mess in Perak Caused by Disregard for Constitutional Conventions

Events in Perak in the past few months have elevated the above statement to a prophecy of sorts. Just look at the controversy surrounding the crisis now. Just look at the public ridicule over the entire issue nowadays. None of these would have occurred had conventions been followed.

The Perak crisis has morphed itself into a black hole which is sucking into it the whole administrative system of this country. Affected by the crisis is not only the 3 leaping ADUNs and the respective political personages who are jostling for power but also the various institutions which happen to be connected - by close proximity, usages or entanglement - to the crisis.

The Assembly is in a shamble. Its Speakers are in doubt.

The Royal house has been ridiculed, though I must hasten to add, mostly unwarranted. It has even been used during by-elections as shouts of "derhaka" were provoked and relished by some politicians. The independence of the MACC (in postponing the case against the 2 leaping ADUNs), the police, the AG chambers and even the Courts has been questioned. The whole Malaysia is in fact a laughing stock.

That is the price which we, Malaysians, are paying for this truly unnecessary event.

Perhaps we should read more and ponder on the wise words of learned writers, whose words now have become nothing short of prophetic. Consider what de Smith said:
"...the burden thrust upon the Courts when they are called upon to determine whether prescribed rules have been complied with in a politically sensitive situation is liable to be excessive. Whatever the outcome, the prestige of the Judiciary will probably suffer.

If the rules have been set down, do not require the Courts to decide whether, for example, a Prime Minister has been validly dismissed. This is pre-eminently a question about the reins of power.

If the constitutionality of such an act is disputed, the controversy is unlikely to be resolved by the pronouncement of a court."
The above statement could have been written as a real-life commentary of what has been happening in Perak and in our Courts recently. But that was written a good 36 years ago.

And that is the high price all of us pay when conventions are not followed.

Hafarizam is Wrong in Blaming Nizar for the Perak Crisis

Hafarizam opines:
"What it means, in layman's term is simply this, that YB Dato' Seri Ir Nizar should have resigned the day he met HRH the Sultan of Perak on 4th February 2009.

His defiance on that day has dragged the constitutional crisis to where it was until the Court of Appeal decided today!"
I beg to differ.

As shown above, authorities, Constitutional precedents and Conventions have shown that, when faced with a no confidence vote, a Premier is entitled to seek dissolution. When sought, conventions dictate that the Ruler should not refuse dissolution. In the Perak case however, dissolution was inexplicably refused. The MB was asked to resign instead. And a new MB was appointed.

Nizar was just exercising his right as the incumbent MB in asking for dissolution. That was his constitutional right. He did not cause the crisis.

The crisis was caused by events taking place after he exercised his right as such.

I have touched on this issue in my article The Perak Crisis - an unsolicited legal opinion and I would not repeat it here.

Suffice to say that the notion that the Ruler has the power to dismiss the MB under circumstances where the MB has lost the confidence of the Assembly, without more, is MISCONCEIVED

Conventions dictate that firstly, dissolution MUST be granted when requested.

This is in line with the fact that under the Perak Constitution, by article 16 (7), the MB does NOT hold office at the pleasure at HRH the Sultan.

L A Sheridan, in his book "The British Commonwealth - the development of its laws and constitutions" noted that
"in the temporal sphere of politics the Ruler has been since 1957 a constitutional Ruler....a Ruler with limited powers....and that the MB 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 confidence of that assembly."
However, when the Constitution was framed, it makes the Executive Council to hold office at the pleasure of the Sultan but not the MB. And of course, when faced with a no confidence vote, the MB may request dissolution first.

de Smith agrees with this when he says:
"If a Government, having lost its majority...were to insist on remaining in office instead of offering its resignation or advising a dissolution, the Queen would be justified, after the lapse of a reasonable period of time, in requesting the Prime Minister to advise her to dissolve Parliament and, if he were to refuse, in dismissing him and his Ministers."

What Should Have Happened to Avoid the Perak Crisis

So, the exact methodology is this:

The FIRST scenario:
1.the Premier loses majority
2.the Premier offers resignation - if this happens, the Queen appoints a new Premier and the matter ends there.
The SECOND scenario:
1.the Premier loses majority
2.the Premier requests dissolution
3.the Queen dissolves Parliament
4.a general election is called
The THIRD scenario:
1.the Premier loses majority
2.the Premier refuses to resign
3.the Premier refuses to advise dissolution
4.the Queen waits
5.after a reasonable period of time, the Queen invites the Premier to advise her to dissolve
6.the Premier refuses
7.the Queen sacks the Premier
The Perak situation falls under the SECOND scenario. Unfortunately, dissolution was NOT granted.

(In any event, it has to be pointed out that the loss of majority was, at the time of the request for dissolution, not established clearly in the Perak crisis).

From the above, it is clear that the power to dismiss is just a residual power.

It is a power which is necessitated by events rather than a power which is naturally imbued in the Ruler's armoury of discretions or prerogatives. It would be wise to take heed of what de Smith later said:
"A change of Prime Minister may be necessary because of the resignation, death or dismissal of the incumbent. The last possibility, dismissal, would arise only in highly exceptional circumstances and, one would suppose, in a near revolutionary situation."
The Power of the Sultan in the Removal of the Mentri Besar

It is therefore clear that this residual power cannot be exercised by HRH without having explored the possibility of executing any other Constitutional power.

It is a power, which, in my humble opinion, is to be exercised as a definite last resort and after having explored all other possible avenues. Since Victoria came to the throne, all vacancies in the PM office have arisen through either death or resignation and never dismissal. de Smith pointed out that the last unambiguous dismissal of the Government took place in 1783!

Even if the Queen were to dismiss the PM, de Smith posits that the new PM must be prepared to advise dissolution of the Parliament at the "earliest practicable moment."

It is therefore clear that the new PM (or in the Perak case, MB), appointed upon the dismissal of the previous one under this residual power, is not appointed to rule but to advise the Ruler to dissolve the Parliament (or in the Perak case, the Assembly) so that power can be returned to the people through an election process.

That is the true spirit of the Constitution. The true spirit which has been forgotten or put aside due to political expediency and possibly, greed.

That being the case, even on the assumption that Nizar had lost the majority support and that HRH the Sultan was right in dismissing Nizar, Zambry's function is not to rule but to advise HRH the Sultan to dissolve at the "Earliest practicable moment".

It is interesting to note that Mahathir Mohammad himself had thought that the Perak coup was wrongly done and handled. He then admitted that if an election is called in Perak, the BN would lose. It is therefore clear that the BN leadership is uncomfortably possessed of the knowledge that they would lose in an election, if it is called. Hence the refusal to advise dissolution of the Assembly.

Startlingly, de Smith had foreseen this situation when 36 years ago, he wrote:

"She (the Queen) would also, it is submitted, be justified in dismissing her Ministers if they were purporting to subvert the democratic basis of the Constitution - for example, by prolonging the life of a Parliament in order to avoid defeat at a General Election..."
In the circumstances, where the BN Government know full well that they are going to lose in an election, if it is called, it is my humble view that the BN Government lacks the moral, and even legal, ground and standing to rule Perak. That is, with respect, an attempt to subvert the democratic basis of the Constitution by prolonging the life of the Assembly in order to avoid defeat in an election.

It is therefore submitted with respect that the HRH the Sultan of Perak is now possessed with the residual power to invite Zambry to advise HRH to dissolve the Assembly. In the event he refuses, Constitutional Conventions would equip HRH with the power to dismiss the Government and appoint a new one just for the purpose of advising HRH the Sultan to dissolve the Assembly.

The real power could then be returned to the people through the ballot boxes.

I rest my case.
- Art Harun


Anonymous said...

This well-reasoned explanation of basic Constituional applicable laws do not seem to be within the grasp of the 3 Appeal Court Judges. Essentially, what you had propounded in mathematical terms is -
1. 1+1+1=3, or
2. 2+1=3, or
3. 0+3=3.
What's so difficult to apprehend? It does not take leagal training to appreciate the logic and rationale. Yet, till this very day, the written judgment of the Appeal Court is not yet readily available and forthcoming. What farce is this? When there was this uanimous decision, surely a written sound judgment would be in order straight from the starting block. Alas, we are talking about the Malaysian Judiciary. Looks like Ian Chin's boot camp needs a new semester for these Judges to enrol for a crash course programme. Is it any wonder why many law graduates now fail their CLPs? And these are the men and women who may be promoted and appointed to sit on the Bench in their laters years of practice? Oh, my dear God, let's say our prayers in earnest. I do not even have the faintest heart to think how these issues may be ruled once they reach our appellate Federal Court.

yapchongyee said...

Allow me to suggest that in the enforcement of the laws of a nation, THE PEOPLE'S LEVEL OF SOPHISTICATION SENSE OF MORAL STRENGTH & OUTRAGE ARE CORE VALUE. In Malaysia we do not have the required minimum level of learning, education and sophistication of most other civilized nations. in many sense Malaysia is lawless !