Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin

v. Dato’ Seri Dr Zambry Abdul Kadir;

[2012] 6 MLRA Attorney General (Intervener) 259

DATO’ SERI IR HJ MOHAMMAD NIZAR JAMALUDDIN

v.
DATO’ SERI DR ZAMBRY ABDUL KADIR;
ATTORNEY GENERAL (INTERVENER)

Federal Court, Putrajaya

Alauddin Mohd Sheriff PCA, Ariffin Zakaria CJM, Zulkefli Makinudin,
Mohd Ghazali Yusoff, Abdull Hamid Embong FFCJ
[Civil Appeal No: 01-11-2009(W)]
9 February 2010

Constitutional Law: Constitution - Laws of the Constitution of Perak (‘State

Constitution’) - Request for dissolution of State Legislative Assembly - Rejection by Sultan
of Perak - Menteri Besar of Perak’s refusal to tender resignation of executive council -
Loss of confidence in leadership of Menteri Besar - Article XVI(6), State Constitution,
interpretation of - Whether any power to dissolve State Legislative Assembly of Perak
vested in Sultan of Perak HRH by art XXXVI(2), State Constitution - Whether any
requirement in State Constitution which required vote of no confidence to be tabled in
State Legislative Assembly under art XVI(6), State Constitution - Whether refusal by
appellant to resign after having been directed by Sultan of Perak went against express
provisions of art XVI(6), State Constitution

Constitutional Law: Legislature - State Assembly - Request for dissolution of State

Legislative Assembly - Rejection by Sultan of Perak - Menteri Besar of Perak’s refusal
to tender resignation of executive council - Loss of confidence in leadership of Menteri
Besar - Article XVI(6), Laws of the Constitution of Perak (‘State Constitution’),
interpretation of - Whether any power to dissolve State Legislative Assembly of Perak
vested in Sultan of Perak HRH by art XXXVI(2), State Constitution - Whether any
requirement in State Constitution which required vote of no confidence to be tabled in
State Legislative Assembly under art XVI(6), State Constitution - Whether refusal by
appellant to resign after having been directed by Sultan of Perak went against express
provisions of art XVI(6), State Constitution

Statutory Interpretation: Construction of statutes - Literal approach - Article XVI(6),

Laws of the Constitution of Perak - Whether the word ‘shall’ should be given a
mandatory effect

Pursuant to the general election held in 2008, the political party, Pakatan Rakyat
(‘PR’) won 31 seats out of the 59 seats in the State Legislative Assembly of
Perak (‘LA’).The remaining seats went to Barisan Nasional (‘BN’). Sometime
later, the appellant was appointed the Menteri Besar of Perak (‘MB’) by His
Royal Highness the Sultan of Perak (‘HRH’). In early 2009, three members of
the LA for Perak declared and informed HRH that they no longer supported
PR and instead threw their support behind BN. The appellant then had an
audience with HRH where he was informed that his request for dissolution
of the LA was rejected by the HRH. He was directed to tender the resignation
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
260 Attorney General (Intervener) [2012] 6 MLRA

of the executive council, as he no longer commanded the confidence of the

majority of the members of the LA. The direction was made pursuant to art
XVI(6) of the Laws of the Constitution of Perak (‘the State Constitution’).
The appellant, however, did not comply with the direction given by HRH.
Subsequently, the HRH appointed the respondent as the new MB, replacing
the appellant. Dissatisfied with the decision of HRH, the appellant filed an
application for judicial review seeking, amongst others, a declaration that
he was still the MB of Perak. The High Court granted the declaration that
the appellant was the MB and a writ of quo warranto was issued against the
respondent. On appeal to the Court of Appeal, the decision of the learned
High Court judge was reversed. Subsequently, this court allowed the appellant's
application for leave to appeal to this court against the decision of the Court of
Appeal on the following questions: (1) whether, under art XVI(6) of the State
Constitution and in the circumstances that: (i) the MB wished, and had advised
for the dissolution of the LA; and (ii) there was no dissolution of the LA; and
(iii) there was no motion of no confidence taken in and adopted by the LA
against the MB; and (iv) there was no resignation by the MB; the post of the
MB of Perak may be and/or has been vacated; (2) whether, under art XVI(6) of
the State Constitution, the determination of the issue of confidence in the MB
had to be made by members of the LA in an assembly meeting on a vote of no
confidence, or by means other than by a vote of no confidence in the LA as to
whether the MB commanded the confidence of the majority of the members
of the LA; and (3) if the MB refused to tender the resignation of the executive
council, whether under the State Constitution, a MB may be dismissed from
office or the post be deemed vacant or vacated.

Held:

(1) The Court of Appeal was justified in reversing the finding of facts by the
High Court. This was a clear case where the trial judge failed to judicially
appreciate the evidence before him. It must be addded, however, that the power
to dissolve the LA is vested in HRH by art XXXVI(2), State Constitution no
matter in what circumstances it was made. (paras 33-34)

(2) There was nothing in art XVI(6) or in any other provisions of the State
Constitution stipulating that the loss of confidence in the MB may only be
established through a vote in the LA. Evidence of loss of confidence in the
MB may be gathered from other extraneous sources provided, as long as they
are properly established. The Court of Appeal held that there was evidence of
such admission by the appellant himself and what was beyond dispute was the
demonstration of support by the 31 members of the LA for BN, which gave
BN a clear majority in the LA. All these pointed to the loss of confidence of
the majority of the members of the LA in the leadership of the appellant as the
MB. Therefore, the answer to the first question was in the affirmative while for
the second question, there was no requirement in the State Constitution which
required a vote of no confidence to be tabled in the LA under said art XVI(6).
(paras 48-49)
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
[2012] 6 MLRA Attorney General (Intervener) 261

(3) Taking the literal interpretation of art XVI(6), the word ‘shall’ should be
given a mandatory effect. Therefore, it was incumbent upon the appellant to
tender the resignation of the executive council. The term executive council by
definition includes the MB. Therefore the refusal on the part of the appellant
to resign after having been directed to do so by HRH clearly went against the
express provisions of art XVI(6), State Constitution. Conclusively, if the MB
refused to tender the resignation of the executive council under art XVI(6),
the MB and the executive council members are deemed to have vacated their
respective offices. (paras 55-56)

Appeal dismissed.

Case(s) referred to:

Adegbenro v. Akintola [1963] 3 All ER 544 (foll)
Courts v. Commonwealth of Australia [1985] ALR 699 (refd)
Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd [2004] 1 CLJ 701 (refd)
Dato’ Dr Zambry Abd Kadir v. Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin;
Attorney General of Malaysia (Intervener) [2009] 5 MLJ 464 (refd)
Datuk (Datu) Amir Kahar Tun Datu Haji Mustapha v. Tun Mohd Said Keruak & 8
Ors [1995] 1 CLJ 184 (foll)
Dewan Undangan Negeri Kelantan & Anor v. Nordin bin Salleh & Anor [1992] 2 CLJ
1125 (refd)
Gan Yook Chin (P) & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309 (refd)
Hinds v. The Queen [1976] 1 All ER 353 (refd)
Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19 (refd)
Liyanage v. Regina [1966] 1 All ER 650 (refd)
Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ 187 (refd)
London & Clydeside v. Aberdeen [1980] 1 WLR 182 (refd)
Mahabir Chandra Prasad Sharma, Petitioner v. Prafulla Chandra Ghose and others,
Respondents AIR [1969] Cal 198 (refd)
Minister of Home Affairs v. Fisher [1979] 3 All ER 21 (refd)
Perwira Affin Bank Bhd v. Tan Ah Tong [2003] 2 CLJ 320 (refd)
Pow Hing & Anor v. Registrar of Titles, Malacca [1981] 1 MLJ 155 (refd)
PP v. Chang Han Yuan [1999] 4 CLJ 234 (refd)
PP v. Datuk Harun Idris & Ors [1981] 2 MLJ 72 (refd)
PP v. Kok Wah Kuan [2007] 6 CLJ 341 (refd)
SOP Plantations (Suai) Sdn Bhd v. Ading AK Layang & Ors [2004] 4 MLJ 180 (refd)
Stephen Kalong Ningkan v. Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187
(refd)
Teh Cheng Poh v. Public Prosecutor [1979] 1 MLJ 50 (refd)
Tun Datu Haji Mustapha bin Datu Harun v. Datu Haji Mohamed Adnan Robert,
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
262 Attorney General (Intervener) [2012] 6 MLRA

Yang Di Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan (No 2) [1986] 2 MLJ
420 (refd)
Watt v.Thomas [1947] AC 484 (refd)

Legislation referred to:

Constitution of India [India], art 164
Constitution of Perak, arts XVI(2)(a), (b), (6), XVIII(2)(b), (6), XXXVI(2)
Constitution of Sabah, arts 6(3), 7(1)

Other(s) referred to:

NS Bindra’s Interpretation of Statutes, 10th edn, pp 1295, 1296

Counsel:
For the appellant: Sulaiman Abdullah (Ambiga Sreenevasan, Nga Hock Cheh, Philip
Koh Tong Ngee, Chan Kok Keong, Ranjit Singh, Razlan Hadri
Zulkifli, Mohamed Hanipa Maidin, Leong Cheok Keng, Edmund
Bon Tai Soon, Amer Hamzah Arshad, Zulqarnain Lukman &
Joanne Leong Pooi Yaen with him); M/s Leong & Tan
For the respondent: Cecil Abraham (Sunil Abraham & Farah Shuhadah Razali with
him); M/s Zul Rafique & Partners
For the intervener: Abdul Gani Patail (Tun Abd Majid Tun Hamzah, Kamaludin
Md Said, Azizah Nawawi, Amarjeet Singh, Suzana Atan & Andi
Razali Jaya A Dadi with him); AG’s Chambers
Watching brief for Malaysian Bar: Cheng Poh Heng
Watching brief for Barisan Nasional: M Reza Hassan

JUDGMENT

Arifin Zakaria CJM:

Introduction

[1] Following the General Election held on 8 March 2008, the political
alliance called Pakatan Rakyat (PR) won 31 seats out of the 59 seats in the
State Legislative Assembly of Perak (LA). The remaining seats went to Barisan
Nasional (BN). On 17 March 2008, the appellant was appointed the Menteri
Besar of Perak (the MB) by His Royal Highness the Sultan of Perak (HRH).
On 5 February 2009 three members of the LA for Behrang, Changkat Jering
and Jelapang declared and informed HRH that they no longer supported the
PR and instead threw their support behind BN. The appellant then had an
audience with HRH on the same day where he was informed that his request
for dissolution of the LA was rejected by HRH. He was then directed to tender
the resignation of the Executive Council, as he no longer commands the
confidence of the majority of the members of the LA. The direction was made
pursuant to art XVI(6) of the Laws of the Constitution of Perak (‘the State
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
[2012] 6 MLRA Attorney General (Intervener) 263

Constitution’). The appellant did not comply with the direction given by HRH.
On 6 February 2009 HRH appointed the respondent as the new MB, replacing
the appellant.

[2] Dissatisfied with the decision of HRH, the appellant filed an application for
judicial review seeking the following reliefs:

(a) A declaration that the appellant is still the MB of Perak;

(b) A declaration on the Interpretation of art XVI(6) of the Undang-

Undang Tubuh Kerajaan Negeri Perak that in the circumstances
where:

(i) the MB wanted, and had given advice to dissolve the Perak
Legislative Assembly (‘LA’);

(ii) the LA was not dissolved;

(iii) there was no motion of no confidence against the MB in the

LA; and

(iv) there is no resignation from the post of MB,

whether the office of the MB Perak falls vacant or has been vacated.

(c) A writ of ‘quo warranto’ be issued against the respondent to show

cause and to give information how and under what authority
can/is the respondent act as the MB of Perak;

(d) A declaration that the respondent has no legal right to be MB;

(e) An injunction to stop the respondent and/or agents from acting

as the MB; and

(f) Damages (punitive, aggravated and exemplary).

Prayers (g), (h) and (i) were withdrawn at the end of the hearing before
the High Court.

[3] The High Court granted the declaration that the appellant at all material
times was and is the MB and the writ of quo warranto was issued against the
respondent. On appeal to the Court of Appeal, the decision of the learned
High Court Judge was reversed.

[4] On 9 July 2009, this court allowed the appellant’s application for leave
to appeal to this court against the decision of the Court of Appeal on the
following questions:

(1) Whether, under art XVI(6) of the Laws of the Constitution of

Perak and in the circumstances that:
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
264 Attorney General (Intervener) [2012] 6 MLRA

(i) the Menteri Besar of Perak wishes, and has advised for the
dissolution of the Perak State Legislative Assembly; and

(ii) there was no dissolution of the Perak State Legislative

Assembly; and

(iii) there was no motion of no confidence taken in and adopted

by the Perak State Legislative Assembly against the Menteri
Besar of Perak; and

(iv) there was no resignation by the Menteri Besar of Perak;

the post of the Menteri Besar of Perak may be and/or has been
vacated.

(2) Whether, under art XVI(6) of the Laws of the Constitution

of Perak, the determination of the issue of confidence in the
Menteri Besar of Perak has to be made by members of the Perak
State Legislative Assembly in an Assembly meeting on a vote of
no confidence, or by means other than by a vote of no confidence
in the Perak State Legislative Assembly as to whether the Menteri
Besar commands the confidence of the majority of the members
of the Perak State Legislative Assembly?

(3) If the Menteri Besar refuses to tender the resignation of the

Executive Council whether under the Laws of the Constitution
of Perak, a Menteri Besar may be dismissed from office or the
Menteri Besar's post be deemed vacant or vacated?

Events Leading To the Appointment Of The Respondent

[5] In considering the issues posed to us it is necessary to narrate in some detail

the events leading to the appointment of the respondent as the MB, replacing
the appellant. Chronologically they are as follows:

(i) On 30 January 2009, by separate letters addressed to the LA

Speaker (‘Speaker’), two members of the LA namely, Encik
Jamaluddin bin Mohd Radzi (Member of the LA for Behrang)
and Encik Mohd Osman bin Mohd Jailu (Member of the LA for
Changkat Jering) purportedly resigned from their posts effective
on the same day. On 1 February 2009, there was an announcement
over the media by the Speaker to that effect.

(ii) On the same day, the Speaker informed the Election Commission
(‘EC’) of the purported resignation.
(iii) Following the media announcement, on 1 February 2009, Encik
Jamaluddin bin Mohd Radzi and Encik Mohd Osman bin Mohd
Jailu sent separate letters dated the same day to the HRH stating,
inter alia, that:
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
[2012] 6 MLRA Attorney General (Intervener) 265

(a) They did not issue the letter of resignation as alleged by the
Speaker in his press statement; and

(b) They are still serving and carrying out their duties as the
Assemblymen for Behrang and Changkat Jering respectively.
On the same day, they issued a letter to the Speaker stating,
inter alia, that:

(1) Any letter and/or notice purporting to contain their

resignation as members of the LA whether dated before,
on or after 1 February 2009 is invalid ab initio due to
non-occurrence of an event;

(2) At all material time, they have not tendered their

resignation letter to the Speaker as alleged;

(3) The purported resignation letter was not dated by them

and the act of such person in inserting the date on the
purported resignation letter was done without their prior
approval and/or consent; and

(4) That they are issuing the letters dated 1 February 2009
voluntarily and on their own accord.

[6] The abovementioned letters dated 1 February 2009 were also copied to the
State Secretary of Perak, the State Legal Adviser of Perak, the Secretary of the
LA and the Director of Elections for the State of Perak.

[7] Both of them also issued a letter to the Director of Elections for the State
of Perak stating, inter alia, as follows:

(a) Any letter and/or notice purporting to contain their resignation

as members of the Perak LA whether dated before, on or after
1 February 2009 is invalid ab initio due to non-occurrence of an
event; and

(b) They also enclosed a copy of their letters to the Speaker.

[8] On 2 February 2009, the Behrang Assemblyman lodged a police report at
the Bentong Police Station (Report No 000583/09) stating, inter alia, that:
(a) He did not tender the purported resignation letter to the Speaker;
(b) At all material time, he was on medical leave; and
(c) The purported resignation letter is invalid, fraudulent and issued
in bad faith.
[9] On 2 February 2009, one Mohd Farizal bin Omar on behalf of the Changkat
Jering Assemblyman lodged a separate police report at the Shah Alam Police
Station (Report No 000582/09) to the same effect.
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
266 Attorney General (Intervener) [2012] 6 MLRA

[10] On the same day, the appellant, who was then the Menteri Besar of Perak,
had an audience with HRH to inform HRH of the purported resignations of
the Behrang and Changkat Jering Assemblymen.

[11] On 3 February 2009, both the Behrang and Changkat Jering Assemblymen
wrote to HRH informing HRH that they:

(a) Have lost their confidence in the appellant;

(b) Will not support him as the MB; and

(c) The BN alliance now has a majority in the LA.

[12] Both the Behrang and Changkat Jering Assemblymen who at that time were
still members of Parti Keadilan Rakyat (PKR) wrote a letter dated 3 February
2009 respectively to the President of PKR and the Speaker stating that:

(a) They have lost their confidence in PKR;

(b) They are leaving PKR and denouncing their membership as

members of PKR effective immediately;

(c) Their declaration leaving PKR does not operate as their resignation
as members of the LA; and

(d) Any letter and/or notice purporting to contain their resignation as

members of the LA whether dated before, on or after 1 February
2009 is invalid ab initio.

[13] By letter dated 3 February 2009 addressed to the Speaker, another member
of the LA, namely, Madam Hee Yit Foong (Member of the LA for Jelapang)
purportedly resigned as a member of the LA effective on the same day.

[14] The Jelapang Assemblywoman issued a letter on the same date to the
Speaker stating, inter alia, that:

(a) Any letter or notice of resignation purporting to be her resignation

as a member of the LA and which does not bear her official stamp
is void ab initio;

(b) She has lost her confidence in the Democratic Action Party
(DAP);

(c) She is leaving the political party and denouncing her membership
in the DAP; and

(d) Her declaration on leaving the DAP does not operate as her
resignation as a member of the LA.

[15] The Jelapang Assemblywoman also issued a letter dated 3 February 2009
to the Secretary of the DAP reiterating the content of her letter to the Speaker;
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
[2012] 6 MLRA Attorney General (Intervener) 267

[16] On 3 February 2009, the Jelapang Assemblywoman wrote to HRH to

inform HRH that she:

(a) Has lost her confidence in the appellant;

(b) Will not support him as the MB; and

(c) The Barisan Nasional alliance now has the support of the
majority of the members of the LA.

[17] On 4 February 2009, at about 3 pm, HRH received three separate letters
from:

(a) The Jelapang Assemblywoman;

(b) The Behrang Assemblyman; and

(c) The Changkat Jering Asemblyman.

The letters expressed their support for BN and that they had lost confidence
in the appellant and that they were leaving their respective political parties but
maintaining their position as members of the LA.

[18] At about 5 pm on 4 Febrauary 2009, the appellant had an audience with

HRH. During the audience, it was alleged, that he had requested for dissolution
of the LA. HRH, in the presence of the Perak State Legal Adviser, informed the
appellant that HRH would have to consider his request. On 5 February 2009,
the appellant wrote to HRH informing HRH of the latest development in the
State and once again requested HRH to dissolve the LA. At about 10 am on the
same day, the then Deputy Prime Minister Dato’ Seri Mohd Najib bin Tun Abd
Razak, in his capacity as the Chairman of the Perak BN, had an audience with
HRH.

[19] At this meeting, the Deputy Prime Minister presented HRH with a
letter of support from the 28 members of the LA who are aligned to the BN
and that of the Behrang and Changkat Jering Asemblymen and Jelapang
Assemblywoman. The letter stated that the signatories will support whoever
that will be named by YAB Dato’ Seri Mohd Najib bin Tun Abdul Razak as
the candidate for the new MB.

[20] On 5 February 2009 at about 11.15 am, the then Deputy Prime Minister
brought in all 31 members of the LA including Encik Jamaluddin bin Mohd
Radzi, Encik Mohd Osman bin Mohd Jailu and Madam Hee Yit Foong to
Istana Kinta to meet with HRH. All 31 members of the Perak LA pledged their
support to the BN.

[21] Thereafter, HRH spoke to the Jelapang Assemblywoman, the Behrang

Assemblyman, the Changkat Jering Assemblyman and also Encik Nasaruddin,
the Bota Assemblyman. All four members of the LA stated that they signed the
letters wherein they have pledged their support to the BN voluntarily without
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
268 Attorney General (Intervener) [2012] 6 MLRA

any coercion from any other party. At about 1pm on 5 February 2009, the
appellant had an audience with HRH in the meeting room at Istana Kinta. At
about 1.20pm, the appellant left the meeting room.

[22] At about 2.16pm, HRH’s office issued a press statement to Bernama, the
material part of which reads as follows:
Yang Amat Berhormat Dato’ Seri Ir Haji Mohammad Nizar bin Jamaluddin
telah menghadap Duli Yang Maha Mulia Paduka Seri Sultan Perak Darul
Ridzuan pada 04 Februari 2009 (semalam) memohon perkenan Baginda
untuk membubarkan Dewan Negeri Perak.

Yang Amat Berhormat Dato’ Seri Mohd Najib, Timbalan Perdana Menteri
Malaysia juga memohon menghadap Baginda atas kepasitinya sebagai
Pengerusi Barisan Nasional Negeri Perak dan telah diberi perkenan menghadap
Baginda pada esok harinya, pagi 05 Februari 2009.

Yang Amat Berhormat Dato’ Seri Mohd Najib memaklumkan bahawa

Barisan Nasional dan penyokong-penyokongnya kini yang terdiri daripada
31 orang ahli Dewan Negeri telah menguasai majoriti di kalangan ahli-ahli
Dewan Negeri.

Atas titah Duli Yang Maha Mulia untuk meyakinkan Baginda bahawa
maklumat yang dipersembahkan itu adalah tepat, kesemua 31 orang ahli
Dewan Negeri tersebut telah dititah menghadap Paduka Seri Sultan.

Setelah menemui sendiri kesemua 31 ahli-ahli Dewan tersebut, DYMM

Paduka Seri Sultan Perak telah yakin bahawa YAB Dato’ Seri Ir Haji
Mohammad Nizar bin Jamaluddin telah terhenti daripada mendapat
kepercayaan sebahagian besar (ceases to command the confidence of the
majority) dari kalangan ahli-ahli Dewan Negeri.

DYMM Paduka Seri Sultan Perak juga telah menimbangkan dengan

sedalam-dalamnya permohonan YAB Dato’ Seri Ir Haji Mohammad Nizar
bin Jamaluddin pada 04 Februari 2009 memohon perkenan Baginda untuk
membubarkan Dewan Negeri Perak. Baginda menggunakan budi bicara
Baginda di bawah Perkara XVIII (2)(b) Undang-Undang Tubuh Kerajaan
Perak Darul Ridzuan dan tidak berkenan membubarkan Dewan Negeri Perak.

YAB Dato’ Seri Ir Haji Mohammad Nizar bin Jamaluddin telah dititah
menghadap Baginda untuk dimaklumkan mengenai keputusan Baginda
tidak membubarkan Dewan dan selaras dengan peruntukan XVI(6) Undang-
Undang Tubuh Kerajaan Perak Darul Ridzuan, DYMM Paduka Seri Sultan
Perak menitahkan YAB Dato’ Seri Ir Haji Mohammad Nizar bin Jamaluddin
meletak jawatan sebagai Menteri Besar Perak bersama ahli-ahli Majlis
Mesyuarat Kerajaan (MMK) berkuat kuasa serta merta.

Sekiranya YAB Dato’ Seri Ir Mohammad Nizar bin Jamaluddin tidak meletak
jawatan sebagai Menteri Besar Perak bersama ahli-ahli MMK, maka jawatan
Menteri Besar serta ahli-ahli MMK tersebut dianggap telah dikosongkan.

[23] By this statement, it was made known that HRH had turned down
the request by the appellant to dissolve the LA under art XVI(6) and as a
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
[2012] 6 MLRA Attorney General (Intervener) 269

consequence the appellant was required to tender his resignation together with
his Executive Council members. Since the appellant failed to do so, therefore,
the offices of MB together with the Executive Council members were deemed
to have been vacated.

Principles Applicable To The Interpretation Of A Constitution

[24] The answers to the questions posed to us turn essentially on the construction
to be accorded to the relevant provisions of the State Constitution. We have been
reminded by learned counsel for the parties as to the principles to be adopted
in the interpretation of the Constitution. Basically, a Constitution being the
supreme law of a State or Federation, it has to be interpreted differently from
ordinary statute. The Privy Council in Hinds v. The Queen [1976] 1 All ER 353
said:
To seek to apply to constitutional instruments the canons of construction
applicable to ordinary legislation in the fields of substantive criminal or civil
law would ... be misleading.

(see also Liyanage v. Regina [1966] 1 All ER 650).

[25] In Minister of Home Affairs v. Fisher [1979] 3 All ER 21, the Privy Council
was faced with interpreting the fundamental rights provisions of the Bermuda
Constitution. It concluded by saying that these provisions ‘call for a generous
interpretation avoiding the austerity of tabulated legalism, suitable to give to
individuals the full measure of the fundamental rights and freedom.’ (See also
Teh Cheng Poh v. Public Prosecutor [1978] 1 MLRA 321; [1979] 1 MLJ 50.)
And this court in Dewan Undangan Negeri Kelantan & Anor v. Nordin bin Salleh
& Anor [1992] 2 CLJ 1125 stated:
Secondly, as the Judicial Committee of the Privy Council held in Minister
of Home Affairs v. Fisher at p 329, a constitution should be construed with
less rigidity and more generosity than other statutes and as sui juris, calling
for principles of interpretation of its own, suitable to its character but not
forgetting that respect must be paid to the language which has been used.

In this context, it is also worth recalling what Barwick CJ said when speaking
for the High Court of Australia, in Attorney General of the Commonwealth, ex
relatione McKinley v. Commonwealth of Australia at p 17:

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.

[26] NS Bindra’s Interpretation of Statutes, 10th edn at p 1295 speaks of two

theories of interpretation of constitution namely, the mechanical and organic
theories. At p 1296 it stated that the organic method is to be preferred. ‘The
organic method requires us to see the present social conditions and interpret
the constitution in a manner so as to resolve the present difficulties.’ From
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
270 Attorney General (Intervener) [2012] 6 MLRA

the authorities cited above our courts are inclined to the organic theory in the
interpretation of the constitution.

[27] One other important guide in the interpretation of the constitution is that,
‘The constitution must be considered as a whole, and so as to give effect, as
far as possible, to all its provisions. It is an established canon of constitutional
construction that no one provision of the constitution is to be separated from
all the others, and considered alone, but that all the provisions bearing upon
a particular subject are to be brought into view and to be so interpreted as
to effectuate the great purpose of the instrument. An elementary rule of
construction is, that if possible, effect should be given to every part and every
word of a constitution and that unless there is some clear reason to the contrary,
no portion of the fundamental law should be treated as superfluous.’

(See Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd [2004] 1 CLJ 701).

The First And Second Questions

[28] Guided by the abovestated principles on constitutional interpretation we

will now endeavour to construe the relevant provisions of the State Constitution
which are germane to the issues in the present case. The statement issued out
of HRH’s office dated 5 February 2009 sets out the premise on which HRH
had decided to appoint the respondent as the MB replacing the appellant.

[29] The issue is whether HRH had acted within his authority in so doing. The
answer to this question lies on the construction to be given to art XVI(6) of the
State Constitution which states:

The Executive Council

(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.

This article contemplates a situation where the MB ceases to

command the confidence of the majority of the members of the
LA. In such a circumstance he may request for the dissolution
of the LA so that a fresh election can be held. Such a request
must be addressed to HRH, but in the event HRH rejected his
request for the dissolution of the LA then he shall tender the
resignation of the Executive Council. By definition ‘Executive
Council’ consists of the MB appointed by HRH under art XVI(2)
(a) and other members of the Executive Council appointed under
art XVI(2)(b).

[30] It is not in dispute that the appellant did approach HRH for the dissolution
of the LA, but the issue is whether the request for the dissolution was made
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
[2012] 6 MLRA Attorney General (Intervener) 271

under art XVI(6) or under art XXXVI(2). The appellant maintained that it
was made under art XXXVI(2), while the respondent, through the evidence of
the State Legal Adviser and documentary evidence tendered before the court,
maintained that it was made under art XVI(6).

[31] The learned High Court Judge, disbelieved the State Legal Adviser on
this issue and found for the appellant. This issue arose because of the common
stand taken by the parties that a request for dissolution under art XXXVI(2),
unlike the request under art XVI(6), if rejected by HRH, would not trigger
the consequence as provided in art XVI(6), ie the MB having to tender the
resignation of the Executive Council.

[32] The Court of Appeal reversed the finding of the learned High Court Judge
on the premise that his finding was perverse, being contrary to documentary
and other evidence before the court. (See Dato’ Dr Zambry Abd Kadir v. Dato’
Seri Ir Hj Mohammad Nizar Jamaluddin; Attorney General of Malaysia (Intervener)
[2009] 5 MLJ 464. Raus JCA (as he then was) in his judgment stated:
26. It is clear from the above uncontroverted documentary evidence that
the request for the dissolution of the Legislative Assembly must have
been made under art XVI(6) of the Perak State Constitution. Moreover,
state of events that led to the decision of His Royal Highness not to
dissolve the Legislative Assembly, does not support Nizar’s claim that
he had requested the dissolution of the Legislative Assembly under art
XXXVI(2) of the Perak State Constitution.

27. It is an undisputed fact that the Pakatan Rakyat Government at its

formation had a three seat majority in the Legislative Assembly. Thus,
when the two Assemblymen of Pakatan Rakyat from PKR on 1 February
2009 declared that they were leaving the party and crossing support to
the Barisan Nasional, Nizar must be concerned of his position. Nizar
quickly had an audience with His Royal Highness on 2 February 2009,
to inform His Royal Highness that the two Assemblymen had in fact
resigned. But by that time the two Assemblymen had openly disputed
the fact they have resigned as members of the Legislative Assembly.

28. On 3 February 2009, another bombshell hit Nizar. This time an

Assemblywoman from DAP announced her decision to leave DAP, a
political party aligned to Pakatan Rakyat. She too had disputed the claim
by the Speaker that she had resigned as a member of the Legislative
Assembly. She openly declared that she no longer supported Nizar as the
Menteri Besar, instead she was supporting Barisan Nasional.

29. The above was the state of affairs when Nizar had an audience with
His Royal Highness at 5.30 pm on 4 February 2009, where he made
the request to dissolve the Legislative Assembly. At that time he could
not credibly dispute the fact that he had lost the support of the majority
of the members of the Legislative Assembly as the Barisan Nasional
consisting 28 members with the support of three Independent members
had a total of 31 members, while Pakatan Rakyat had 28 members. On
these undisputed facts, how could he possibly claim that his request to
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
272 Attorney General (Intervener) [2012] 6 MLRA

dissolve the Legislative Assembly was under art XXXVI(2) of the Perak
State Constitution.

30. Article XXXVI(2) is a general provision. A request for dissolution under

this article, have to be in relation to the conclusion of the five year term
of the Legislative Assembly when a General election is contemplated. It
is a well known fact that the General Election had been held barely one
year ago. Hence, the learned judge’s finding that the request by Nizar
for the dissolution of the Legislative Assembly was under art XXXVI(2)
cannot be supported. On the facts of this case, the request could only have
been made in accordance to art XVI(6) of the Perak State Constitution.

[33] Having considered the evidence before the court, we find that the Court of
Appeal was justified in reversing the finding of facts by the learned High Court
Judge. We agree that this is a clear case where the trial judge failed to judicially
appreciate the evidence before him. Such a failure justifies an appellate
intervention as was rightly done by the Court of Appeal in the present case.
(See Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; Gan Yook Chin
(P) & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; Watt v.Thomas [1947] AC 484;
Gulf Insurance Limited v. The Central Bank of Trinidad and Tobago, 9 March 2005,
Privy Council, Transcript).

[34] In this regard we would, however, add that the power to dissolve the LA is
vested in HRH by art XXXVI(2) no matter in what circumstances it was made.
This is clear from our reading of the said article which provides:
(2) His Royal Highness may prorogue or dissolve the Legislative Assembly.

This is the only provision touching on the dissolution of the LA. Article
XVI(6), in our view, does not provide for the dissolution of the LA as
such, but merely provides that the MB may in the circumstances stated
in art XVI(6) request HRH for the dissolution of the LA. It does not
confer the power on HRH to dissolve the LA. So in the event HRH
accedes to the request for the dissolution of the LA it has to be done
under XXXVI(2) not under art XVI(6). As we see it art XXXVI(2) is a
general power to dissolve the LA, but the circumstances under which
the LA may be dissolved are varied, and one such circumstance is when
there is a request by the MB to do so under art XVI(6) and HRH agrees
to such a request. Other instances that we can think of, is where the
Government of the day may request for the dissolution of the LA prior
to expiry of the five year term in order to get a fresh mandate from the
electorate. It is important to note that in all cases, the decision whether or
not to dissolve the LA is in the absolute discretion of HRH. HRH does
not act on advice of the Executive Council in the matter of dissolution
of the LA. This is clearly stated in art XVIII(2)(6).

[35] What had happened here, as found by the Court of Appeal, was that the
appellant had requested HRH for dissolution of the LA, on the ground that
he no longer commands the confidence of the majority of the members of the
LA. HRH rejected his request and acting under art XVI(6) HRH directed the
appellant to tender his resignation together with that of the Executive Council.
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
[2012] 6 MLRA Attorney General (Intervener) 273

Had the appellant complied with the direction, that would have been the end
of the matter.

[36] The appellant, however, took the stand that the issue of confidence can
only be determined by a vote taken in the LA. Without such a vote, he was
not obliged to resign as directed by HRH. Hence, he contended that HRH had
acted outside HRH’s constitutional authority or power when he directed the
appellant to tender the resignation of the Executive Council. In other words,
before an art XVI(6) situation can be triggered there must 1st be a vote of no
confidence put before the LA, and in the event the LA voted against him, then
and only then, can a request for a dissolution of the LA under art XVI(6) be
made to HRH. In the present case, there was no such vote of no confidence
against him. Therefore, the prerequisite of art XVI(6) had not been satisfied.

[37] Learned counsel for the appellant contended that what had happened in
the present case was that, the appellant had an audience with HRH where he
requested for a dissolution of the LA under art XXXVI(2) in order to avoid
a possible deadlock in the house. The request for the dissolution of the LA
was thus made under art XXXVI(2) not under art XVI(6). Therefore, even
if HRH rejected his request he was not required to tender the resignation of
the Executive Council. This is contrary to the finding made by the Court of
Appeal which held that there was ample evidence (both oral and documentary)
indicating that the appellant had in fact requested for a dissolution of the LA
on the ground that he had lost the confidence of the majority of the members
of the LA. They held that the request was made under art XVI(6). The learned
judges of the Court of Appeal in three separate judgments had considered this
issue at some length before coming to their finding. After a careful examination
of the evidence before us we are of the view that the Court of Appeal was
justified in coming to the said finding.

[38] Having said that, therefore, the only issue before us is whether art XVI(6)
by its terms requires that the test of confidence in the MB could only be done
on the floor of the LA and not otherwise. It was contended for the appellant
that, since the MB, after being appointed by HRH, was only answerable to
the LA, the only way to determine whether he commands the support of the
majority of the members or otherwise was to have the motion tabled in the LA.
In the event a vote of no confidence was passed by the LA then HRH will have
to decide whether to dissolve the LA or not. The appellant drew support for
this contention from the case of Tun Datu Haji Mustapha bin Datu Harun v. Datu
Haji Mohamed Adnan Robert, Yang Di Pertua Negeri Sabah & Datuk Joseph Pairin
Kitingan (No 2) [1986] 2 MLJ 420, which adopted the view expressed in Stephen
Kalong Ningkan v. Tun Abang Haji Openg and Tawi Sli [1966] 2 MLJ 187.

[39] The respondent and the learned Attorney General on the other hand
submitted that Ningkan’s case should not be followed, as the decision was
based on the peculiar facts as found by the learned judge in that case. Firstly,
it was pointed out that the assembly was in session when the Governor sacked
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
274 Attorney General (Intervener) [2012] 6 MLRA

Ningkan. Secondly the letter addressed to the Governor which was purportedly
signed by 21 members of the assembly was questionable. In one case there
was merely a chop, with no signature, against the name of the member of
the assembly. Thirdly, two days before Ningkan was sacked, Bills were passed
by the assembly without opposition and no motion of no confidence was
introduced in the assembly. And fourthly, there was no request for dissolution
of the assembly ever being made by Ningkan.

[40] In the present case, they said, not only was there a request made by the
appellant for the dissolution of the LA under art XVI(6), thus indicating a loss
of confidence in the appellant by the majority of the members, this was further
confirmed in the meeting between the 31 members of the LA and HRH. At
that meeting the 31 members jointly expressed their support for BN. They
contended that, on those facts, Ningkan’s case can be distinguished from the
present case as was done by the Court of Appeal.

[41] The Privy Council case of Adegbenro v. Akintola [1963] 3 All ER 544 was
relied by the respondent and the learned Attorney General in support of the
proposition that the evidence that the MB ceases to command the confidence
of members of the LA for the purposes of art XVI(6) may be gathered from
other sources and are not confined to the votes taken in the LA provided that,
extraneous sources are properly established. Akintola was not followed by
Harley Ag CJ (Borneo) in Ningkan. He held that on the provisions of the
Sarawak Constitution a lack of confidence could only be demonstrated by a
vote in the Council Negeri. He pointed to the distinguishing feature in the
Nigerian Constitution in that the Governor had the express power to assess the
situation ‘as it appeared to him.’ Furthermore, in Nigeria it was not disputed
that the Governor had the express power to remove the premier if he no longer
commands the support of the majority of the members of the house.

[42] The respondent and the learned Attorney General also drew support from
the case of Datuk (Datu) Amir Kahar Tun Datu Haji Mustapha v. Tun Mohd Said
Keruak & 8 Ors [1995] 1 CLJ 184. In Amir Kahar, the plaintiff was a Cabinet
Minister in the Cabinet led by Datuk Pairin Kitingan, as the Chief Minister.
Following the exodus of PBS assemblymen to BN, Pairin Kitingan tendered his
resignation as Chief Minister. A new Chief Minister was appointed together
with a new cabinet. The plaintiff challenged the legality of the new government
and sought for a declaration that the resignation of Pairin Kitingan, being
personal in nature, had not affected his cabinet and the plaintiff ’s position as
State Minister. The primary issue that arose was whether the resignation of
Pairin Kitingan was constitutionally proper and effective, and if so, whether
that resignation in law amounted to the resignation of his whole cabinet. It
was held, inter alia, that even if the Chief Minister, under those circumstances,
refused or did not tender the resignation of the members of the cabinet, or if he
tendered the resignation of himself alone, the fact remained that the cabinet was
dissolved on account of his losing the confidence of a majority of the members
of the assembly. Following Akintola the court held further that the evidence that
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
[2012] 6 MLRA Attorney General (Intervener) 275

a Chief Minister ceased to command the confidence of the majority members

of the assembly for the purpose of art 7(1) of the Constitution was not only
available from the votes taken in the assembly. The learned judge noted that
there was nothing in the constitution which could be construed as requiring
that the test of confidence must be by a vote taken in the assembly itself. That
fact could also be evidenced by other extraneous sources. In that case the
extraneous source was to be found in the clear expression contained in the
petition by the 30 assemblymen to the 1st defendant and the admission of that
fact by Datuk Pairin himself. This clear expression, the learned judge held,
sufficed for the 1st defendant to exercise his discretion under art 6(3) to appoint
the 2nd defendant as the new Chief Minister.

[43] Abdul Kadir Sulaiman J (as he then was) at p 196 stated:

In the circumstances I would adopt the dicta of Viscount Radcliffe who
delivered the judgment of the Privy Council in Adegbenro v. Akintola’s case
(supra) at p 70 when His Lordship says:

What, then, is the meaning of the words ‘the premier no longer

commands the support of a majority of the members? It has been
said, and said truly, that the phrase is derived from the constitutional
understandings that support the unwritten, or rather partly unwritten,
Constitution of the United Kingdom. It recognises the basic assumption
of that constitution, as it has been developed, that, so long as the elected
House of the Representatives is in being, a majority of the members who
are prepared to act together with some cohesion is entitled to determine
the effective leadership of the Government of the day. It recognises also
one other principle that has come to be accepted in the United Kingdom:
that, subject to questions as to the right of dissolution and appeal to the
electorate, a Prime Minister ought not to remain in office as such once
it has been established that he has ceased to command the support of a
majority of the house. But, when that is said, the practical application of
these principles to a given situation, if it arose in the United Kingdom,
would depend less upon any simple statement of principle than upon the
actual facts of that situation and the good sense and political sensitivity
of the main actors called upon to take part.

It is said, too, that the ‘support’ that is to be considered is nothing else than
support in the proceedings of the house itself, and with this proposition
also their Lordships are in agreement. They do not think however, that
this is in itself a very pregnant observation. No doubt, everything comes
back in the end to the question what action the members of a part or a
group or a combination are resolved to take in proceedings on the floor
of the house; but in democratic politics, speeches or writings outside the
house, party meetings, speeches or activities in the house short of actual
voting are all capable of contributing evidence to indicate what action
this or that member has decided to take when and if he is called upon to
vote in the house, and it appears to their Lordship somewhat unreal to
try to draw a firm dividing line between votes and other demonstrations
where the issue of ‘support’ is concerned.’
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
276 Attorney General (Intervener) [2012] 6 MLRA

Based on what was said by Viscount Radcliffe in the case, the evidence that a
Chief Minister ceases to command the confidence of the majority of members
of the assembly for the purpose of art 7(1) of the Sabah Constitution, may be
found from other extraneous sources than to be confined to the votes taken in
the Legislative Assembly provided that, that extraneous sources are properly
established. In this case, that extraneous source is to be found in the clear
expression contained in the petition by the 30 members to the 1st defendant
and the admission of that fact by Datuk Pairin. This clear expression suffices
for the 1st defendant to exercise his discretion under art 6(3) to appoint the
2nd defendant as the new Chief Minister to replace Datuk Pairin which
issue in any event is not contested by the plaintiff. The expression of loss
of confidence is not, therefore, confined to a vote taken in the assembly but
depending on the circumstances, which are capable of contributing sufficient
evidence to indicate such lack of confidence. After all there is nothing in the
Constitution of Sabah which can be construed as requiring that the test of
confidence or the lack of it must be by way of a vote taken in the assembly
itself.

[44] In Amir Kahar, even though the learned judge distinguished that case on
its facts from Ningkan, he explicitly stated that the question whether the Chief
Minister ceases to have the support of the majority of the members of the
assembly could be gathered from sources outside the assembly. In this regard
we would also refer to the Indian case of Mahabir Chandra Prasad Sharma,
Petitioner v. Prafulla Chandra Ghose and others, Respondents AIR [1969] cal 198.
There, the High Court held that the Governor may remove the Chief Minister
from his office and dissolve the Council of Ministers headed by him after being
satisfied that the Chief Minister no longer had the support of the majority
of the Legislative Assembly. This was done without there being a vote of no
confidence passed by the Legislative Assembly. In his judgment, BC Mitra J
stated that the provision in cl (2) of art 164 of India Constitution that the
ministers shall be collectively responsible to the Legislative Assembly of a state,
does not in any manner fetter or restrict the Governor’s power ‘to withdraw
the pleasure’ during which the ministers hold office. It is true that there, the
Council of Ministers hold office at the pleasure of the Governor but the point
we are making is that the Governor may remove the Chief Minister and the
Council of Ministers without a vote of no confidence being passed in the
Legislative Assembly.

[45] The question is, which of these two contrasting stands is applicable to
the present case. The answer to this depends wholly on the construction to be
given to the relevant provisions of the State Constitution. In this regard it is
important to bear in mind what was said by Raja Azlan Shah J (as His Royal
Highness then was in Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ
187 at p 188:
Whatever may be said of other constitutions, they are ultimately of little
assistance to us because our constitution now stands in its own right and it is
in the end the wording of our constitution itself that is to be interpreted and
applied and this wording ‘can never be overridden by the extraneous principles
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
[2012] 6 MLRA Attorney General (Intervener) 277

of other Constitutions’ - see Adegbenro v. Akintola & Anor. Each country frames
its constitution according to its genius and for the good of its own society. We
look at other constitutions to learn from their experiences and from a desire
to see how their progress and well-being is ensured by their fundamental law.

[46] Abdul Hamid Mohamad PCA (as he then was) in Public Prosecutor
v. Kok Wah Kuan [2007] 6 CLJ 341 similarly said, ‘So, in determining the
constitutionality or otherwise of a statute under our constitution by the court
of Law, it is the provision of our constitution that matters, not a political
theory by some thinkers.’ And as stated in the authorities referred to earlier,
the interpretation of a constitution calls for more generosity than other statutes
and as sui juris, calling for principles of interpretation of its own, suitable to its
character but not forgetting that respect must be paid to the language which
had been employed. A constitution is not to be construed in any narrow or
pedantic sense. (See Public Prosecutor v. Datuk Harun Idris & Ors [1981] 2 MLJ
72.

[47] Raus Sharif JCA (as he then was) agreed with the views expressed by
Kadir Sulaiman J in Amir Kahar and stated that:
Similarly, in the present case there is nothing in the Perak State Constitution
which can be construed as requiring that the test of confidence or lack of it must
be by way of vote taken in the Legislative Assembly. Of course, actual voting
in the Legislative Assembly is ideal but interpreting art XVI(6) to require the
loss of confidence to be established only by voting in the Legislative Assembly
would lead to absurdity as the Menteri Besar who may have lost support will
not be too eager to summon it. Thus, as rightly stated by Kadir Sulaiman J
in Amir Kahar that there must be other circumstances, which are capable of
contributing sufficient evidence to such lack of confidence in Chief Minister
or the Menteri Besar.

[48] We agree with the view stated above as there is nothing in art XVI(6) or
in any other provisions of the State Constitution stipulating that the loss of
confidence in the MB may only be established through a vote in the LA. As
such, evidence of loss of confidence in the MB may be gathered from other
extraneous sources provided, as stated in Akintola, they are properly established.
Such sources, we think, should include the admission by the MB himself and/
or representations made by members of the LA that the MB no longer enjoys
the support of the majority of the members of the LA. In the present case,
the Court of Appeal held that there was evidence of such admission by the
appellant himself and what is beyond dispute is the demonstration of support
by the 31 members of the LA for BN. Hence, giving BN a clear majority in
the LA. All these clearly point to the loss of confidence of the majority of the
members of the LA in the leadership of the appellant as the MB.

[49] For the above reasons our answer to the 1st question is in the affirmative
and for the 2nd question, is that there is no requirement in the State Constitution
which requires a vote of no confidence to be tabled in the LA under art XVI(6).
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
278 Attorney General (Intervener) [2012] 6 MLRA

The Third Question

[50] The 3rd and final question posed to us is whether a MB who has been
asked to resign by HRH under art XVI(6) may be dismissed from office or his
office be deemed vacated if he refuses to resign. To recap art XVI(6) provides:

(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.

[51] From our reading of this article, it is plain that where a MB ceases to
command the confidence of the majority of the members of the LA he may
request HRH to dissolve the LA. This gives him the opportunity to obtain
a fresh mandate from the electorate. The issue arises, when his request for
dissolution under art XVI(6) is refused by HRH, is he in the circumstances
required to resign from his office? The learned High Court Judge agreed with
the appellant that on the wording of art XVI(6) he was not so required. He
rejected the argument put forth by the learned counsel for the respondent
and the Attorney General that because of the word ‘shall’ in the said article
it is, therefore mandatory for him to tender the resignation of the Executive
Council. In his judgment the learned High Court Judge said:

But in my view no matter how mandatory is the word ‘shall’ in art

XVI(6), it cannot be read to mean that the office of Menteri Besar
becomes or deemed to be vacant if the Menteri refuses to resign under
the circumstance of art XVI(6) of Perak’s State Constitution. It cannot
be done because the language of art XVI(6) is so plain and obvious.
What is so plain and obvious on art XVI(6) is that the Menteri Besar
shall tender his resignation if he faces the circumstances specified in
the said article which is that he has ceased to command the confidence
of the majority in the State Legislative Assembly.

[52] The finding of the High Court on this issue was reversed by the Court of
Appeal. Raus Sharif JCA (as he then was) in his judgment at para 50 stated:

50. The question of Perak having two Menteri Besar does not arise.
Article XVI(6) of the Perak State Constitution and established
convention, demand that once the Menteri Besar is made to know
that he has lost the confidence of the majority of the members of
the Legislative Assembly, he should take the honourable way out
by tendering his resignation and the resignation of the Executive
Council. If the Menteri Besar refuses or does not tender his
resignation and the resignation of the Executive Council, as had
happened in this case, the fact remains that the Executive Council
is dissolved (which include the Menteri Besar) on account of
the Menteri Besar losing the confidence of the majority of the
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
[2012] 6 MLRA Attorney General (Intervener) 279

members of Legislative Assembly. Therefore, it is not necessary

for the DYMM Sultan of Perak to remove Nizar and the other
members of the Executive Council. The DYMM Sultan of
Perak in exercise of His Royal Prerogative under art XVI(2)(a)
of the Perak State Constitution is at liberty to appoint another
Menteri Besar to replace Nizar. But His Royal Highness must
appoint someone who has the command and the confidence
of the majority of the members of the Legislative Assembly. In
the present case, there is no doubt that Zambry has the majority
support of the members of the Legislative Assembly. He has
the support of 31 members from 59 members of the Legislative
Assembly.

[53] It is not in dispute that it is within the discretion of HRH to withhold

consent to a request for dissolution of the LA. (See art XVIII(2)(b)). Given
that HRH may reject the request to dissolve the LA then, if that happens, the
question arises, is the appellant required by law to tender his resignation? The
answer to this issue turns very much on the effect to be given to the word ‘shall’
in art XVI(6). According to Words, Phrases & Maxim Legally & Judicially Defined,
the word ‘shall’ is interpreted to mean:
In common parlance, a term which, it is said, has always a compulsory
meaning, and in its common and ordinary usage, unless accompanied by
qualifying words which show a contrary intent, always refers to the future;
but it may be used in the sense of ‘must’ of which it is a synonym. As
used in statutes, the word is generally mandatory; although it is not always
imperative but may be consistent with an exercise of discretion. Thus it may
be construed to mean ‘may’ when a right or benefit to any one depends on its
imperative use; when no advantage is lost, when no right is destroyed, when
no benefit is sacrificed, either to the public or to any individual by giving it
that construction; or when it is absolutely necessary to prevent irreparable
mischief, or to construe a direction so that it shall not interfere with mental
branches of government; and it also means ‘may’ when used by a legislature
in a grant of authority to a court. (Ame Cyc) The word ‘shall’ in its ordinary
signification is mandatory though there may be considerations which would
influence the court in holding that the intention of the legislature was to give
a discretion.

(See also Perwira Affin Bank Bhd v. Tan Ah Tong [2003] 2 CLJ 320; Public Prosecutor
v. Chang Han Yuan [1999] 4 CLJ 234; SOP Plantations (Suai) Sdn Bhd v. Ading AK
Layang & Ors [2004] 4 MLJ 180; Pow Hing & Anor v. Registrar of Titles, Malacca
[1981] 1 MLJ 155; London & Clydeside v. Aberdeen [1980] 1 WLR 182; and Courts
v. Commonwealth of Australia [1985] ALR 699.

[54] In Amir Kahar’s case the word ‘shall’ was construed to have the mandatory
effect. The court said: ‘Under the circumstances, if the Chief Minister refuses
or does not tender the resignation of the members of the cabinet which includes
himself, or if he tenders the resignation of himself alone, the fact remains that
the cabinet is dissolved on account of him losing the confidence of the majority
 Dato’ Seri Ir Hj Mohammad Nizar Jamaluddin
v. Dato’ Seri Dr Zambry Abdul Kadir;
280 Attorney General (Intervener) [2012] 6 MLRA

of the members of the assembly and it is not necessary, therefore, for the Yang
di-Pertua Negeri as a last resort to remove the Chief Minister and the other
members of his cabinet.’ (See p 194)

[55] Similarly here, on the literal interpretation of art XVI(6), we are of the
view that the word ‘shall’ should be given a mandatory effect. Therefore, it is
incumbent upon the appellant in the circumstances of this case to tender the
resignation of the Executive Council. The term Executive Council by definition
includes the MB. (See art XVI(2)) We, therefore, agree with the respondent that
the refusal on the part of the appellant to resign after having been directed to
do so by HRH clearly went against the express provisions of art XVI(6). It
cannot be the intention of the framers of the State Constitution that in the
circumstances, it is open to the appellant whether to resign or to stay on as
MB. The word ‘shall’, in our opinion, ought to be given a mandatory effect,
otherwise, it would lead to political uncertainty in the state. The appellant
cannot continue to govern after having lost the support of the majority. To
allow him to do so would be going against the basic principle of democracy.
However, we would add that this by no means is the end of the matter, as it
is always open to the appellant to bring a vote of no confidence against the
respondent in the LA or make a representation to HRH at any time if he thinks
that the respondent does not enjoy the support of the majority of the members
of the LA.

Conclusion

[56] In the upshot we would answer the questions posed to us as follows:

(i) The answer to the first question will be in the affirmative;

(ii) As for the second question, our answer is that under art XVI(6)
the question of confidence in the MB may be determined by
means other than a vote of no confidence in the LA; and

(iii) As for the third question our answer is that if the MB refuses to
tender the resignation of the Executive Council under art XVI(6)
the MB and the Executive Council members are deemed to have
vacated their respective offices.

[57] The appeal is accordingly dismissed. No order as to cost. Deposit to be

refunded to the appellant.