JULY 26 — A written constitution like the Federal Constitution gathers unto itself various sources of law, some of which are implicit. These are unwritten sources in the form of conventions, prerogatives, discretionary and residual powers.
One can therefore look beyond the written law to help ensure the continuation of constitutionalism and the rule of law. (see Zainun Ali JCA (as she then was) in Dato’ Dr Zambry bin Abd Kadir v Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia, intervener) [2009] 5 MLJ 464)
The first of the unwritten sources – that is, convention – is a well established source.
In the Zambry v Nizar case, the established convention on loss of confidence was acknowledged by Raus Sharif JCA (as he then was).
The appellate court, though, may not have decided on the convention. As such, the statement on the convention is – what lawyers call – obiter dictum. The term is Latin for “something that is said in passing” or simply “other things said”.
Under the doctrine of stare decisis or binding legal precedent, obiter dictum (plural dicta) is not binding.
It is the ratio decidendi (plural rationes decidendi) of a judgment that is binding. The term means “the ground or reason of decision” or simply “the rule in a decision”. It is the legal principle upon which the decision in a specific case is founded.
The rule in the Zambry v Nizar case in the higher Federal Court when Nizar appealed against the decision of the Court of Appeal is this:
There is nothing in the Perak State Constitution stipulating that the loss of confidence in the Menteri Besar (MB) may only be established through a vote in the Legislative Assembly (LA).
Evidence of loss of confidence in the MB may be gathered from other extraneous sources, provided they are properly established.
Such sources 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.
On the facts of the case, there was evidence of such admission by Nizar himself and the loss of confidence of the majority of the members of the LA in the leadership of Nizar as expressed by 31 members of the LA.
As there is similarly nothing in the Federal Constitution stipulating that the loss of confidence in the prime minister may only be established through a vote in the Dewan Rakyat, the ratio in the Zambry v Nizar case applies to establishing the loss of confidence in the prime minister.
But while a vote on a motion of confidence in the Dewan Rakyat is not the only mechanism to establish or determine the loss of confidence, shouts of “turun” certainly do not determine the loss of confidence.
And while demonstrations or representations made by MPs – properly established – of the loss of confidence in the prime minister outside the Dewan Rakyat is a decided mechanism, public rallies are not – no matter the number of rally protestors: 10,000, 100,000 or 1 million.
MPs can shout “turun” in the Dewan Rakyat; they can join the public in a rally to call for the prime minister to “turun” in the exercise of their basic freedoms guaranteed by the Federal Constitution.
But neither will lead to the resignation of the prime minister.
All it takes is a majority vote of “Aye” to a motion of no confidence in the prime minister or properly established representations made by MPs that the prime minister has lost the confidence of the majority of MPs.
That’s 112 out of 222 MPs.
Prime Minister Anwar Ibrahim has dared the Opposition to “go and table a no-confidence motion” in the Dewan Rakyat.
Will the Opposition take the dare after the “turun Anwar” rally?
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
