Umno seek British help on Perak Crisis

A senior constitutional lawyer left Kuala Lumpur yesterday for London to engage the services of a QC on behalf of Umno to advise the party on a host of questions that is roiling debate in the country.

Umno is seeking the opinion of a Queen’s Counsel (QC) on the constitutional issues which have bedeviled Barisan Nasional’s takeover of the Perak state government from Pakatan Rakyat.

Sources say the QC that will be engaged by Umno is likely to be someone who has already appeared in the courts here in a span going back almost three decades.

It is believed that a QC who has appeared in cases in Singapore is also on the shortlist.

Three high-profile QCs who have previously appeared in Malaysia and Singapore to argue on complex issues of law have been Michael Beloff, Anthony Lester and Geoffrey Robertson.

Robertson appeared for regional weekly magazine Far Eastern Economic Review in a matter arising from a report the journal carried on arrests in Singapore in 1987 when the government there cracked down on social activists – ‘Marxists in clerical collars’, was the pithy description of the late S Rajaratnam, then foreign minister of the island republic.

Robertson, who memorably cross-examined then prime minister Lee Kuan Yew in the case, was like Beloff, unable to shift the court in his client’s favour.

Beloff appeared in the Federal Court for proponents of the Merdeka University in 1982. He was unsuccessful in the Merdeka University appeal.

Lester was engaged by the Parti Bersatu Sabah (PBS) as counsel when the late Mustapha Datu Harun sued Sabah governor Adnan Roberts and Chief Minister Pairin Kitingan for restoration as chief minister in 1985. Mustapha lost the case.

The judgment handed down was then viewed as having established the precedents that:

"A ruler can appoint as chief minister a member of the legislative assembly who in his opinion commands the confidence of a majority in the House, and that once appointed, a chief minister is obliged to quit if he loses a no-confidence motion in the legislature.

Article 16(6) of the Perak Constitution states that:

"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 dissolve the legislative assembly he shall tender the resignation of executive council".

Source: Malaysiakini

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Moral of Umno's Lesson:

The British can be helpful when Umno is in Crisis.

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Legal Analysis of Article 16

Article 16(6) is clear, unambiguous and unequivocal:

Firstly, the members of the Legislative Assembly must show non-confidence in the MB;
then, if that happens the MB shall request the Ruler to dissolve the legislative assembly;

if he fails to request His Royal Highness to dissolve the legislative assembly, the law says he has to tender the resignation of the Executive Council, and even if he do not, the law will imply that the Executive Council has resigned (automatically).

There is no provision of another way to replace the Executive Council and MB in the State Constitution and unless one is prepared to imply it using purposive interpretation in the statute, it seems clear that the only possibility left is to call for election or declare a state of emergency.

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