In Malaysia, Eastminster Prevails

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–Ganesh Sahathevan, Fellow, American Center for Democracy

A decision of the Court of Appeal Malaysia handed down on 28 November 2019 suggests that “Eastminister” style exercise of powers by Malaysia’s Heads of State may no longer be the subject of judicial review once the Head of State’s preferred Head of Government can demonstrate by a simple head count that he or she has the numbers to defend against a vote of no confidence.

The term “Eastminster”[1] is used to demonstrate how Westminster conventions of responsible government have been applied in Malaysia over the past 55 years in a fashion that may well embarrass a British monarch, but which are becoming ever more entrenched in the laws of that country.

In the recent case of Tan Sri Musa HJ Aman v Tun Datuk Seri Panglima HJ Juhar HJ Mahiruddin & Anor, the Court of Appeal (CoA) was asked to review and overturn the High Court decision in Tan Sri Musa HJ Aman v Tun Datuk Seri Panglima HJ Juhar HJ Mahiruddin & Anor[2].

The High Court had held that the defendant Juhar, who is Governor of The State of Sabah, had correctly exercised his discretion pursuant to Article 7(1) of the Sabah State Constitution[3] by appointing Shafie bin Apdal (Shafie) as Chief Minister in place of the plaintiff Musa.

Jaclyn Neo, Dian Shah, and Andrew Harding explain how that decision by the Governor led to a position where The State Of Sabah could have been said to have had two chief ministers.[4] The High Court, however, determined that the Governor’s decision was valid and that it was bound by the Federal Court decision in Dato’ Dr Zambry bin Abd Kadir v Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia intervener)[5].

In Zanbry’s case it was held pursuant to the provisions of the Perak State Constitution that where the Head of Government, the Chief Minister,  refuses to resign his commission when requested to do so by the Head of State, the Sultan, the Chief Minister is deemed to have vacated his position, along with his Cabinet. It was also held that the Sultan could pay regard to information from any source to inform his decision, and was not confined to the results of a vote of no confidence when making his decision.

Musa appealed the decision and the matter was heard on 28 November 2019[6].The Court of Appeal dismissed his appeal on a preliminary point of objection, raised by the respondents (the Governor and his preferred Chief Minister, Shafie) that any decision of the Court of Appeal would be academic. A written judgement has yet to be handed down, but the decision may be summarised as follows, based on media reports from The Malay Mail:

The Court of Appeal here has rejected former Sabah chief minister Tan Sri Musa Aman’s appeal against the dismissal of his lawsuit challenging the legality of Datuk Seri Shafie Apdal’s appointment as his successor.

Musa’s lawyer, Tengku Fuad Tengku Ahmad, said a three-judge panel agreed with a preliminary objection that the matter was now “academic”.

Shafie’s lawyer, Datuk Douglas Lind, earlier argued that the challenge was no longer relevant as Shafie now commanded the confidence of an indisputable majority in the state assembly, with over two thirds of its lawmakers pledged to him.

He said Musa could, at best, muster the support of eight out of the assembly’s 55 lawmakers and could not conceivably succeed in securing a vote of no-confidence in Shafie.

Additionally, from, the New Straits Times:

He (Douglas) said the outcome of the appeal will have no effect at all on the positions or interests of either Musa or Shafie, adding that such (a) situation is due to the current support garnered by the duo respectively in the Sabah State Legislative Assembly.

Based on the support as shown in a list attached to a letter dated Oct 3, 2019, from the state assembly secretary, Douglas noted Musa, at best, can only garner the support of all eight opposition members, including himself.

Shafie, on the other hand, has the support of 52 assemblymen and therefore has the support of more than two-thirds of the members in the State Legislative Assembly (SLA).

“Even if the appellant succeeds with his appeal, the status quo remains and the second respondent will continue to be the Chief Minister as having such a large number of assemblymen supporting him. The second respondent’s position is unshakeable and remains unassailable.

“The appeal has clearly become academic and purely (an) exercise in futile (sic) and serves no purpose at all. The appeal is therefore not competent, and it is urged that the court will not proceed but dismiss the appeal” (sic) stressed Douglas.

This is an interesting turn of events for, at first instance, in the High Court, Justice Yew Jen Kie, faced with the same objection from the defendants, ruled that Musa’s legal challenge against Shafie was not an academic exercise but one of public interest[9].

Be that all as it may be, the Court of Appeal appears to have now determined that such challenges are in fact academic and in doing so effectively placed exercises of discretion by Heads of States in the appointment of their respective Heads of Government beyond review, especially when the preferred Head of Government can demonstrate by a simple head count that he or she has the numbers to defeat any vote of no confidence. Additionally, Heads of State can rely on the assembly of members to legitimise their choice of Chief Minister regardless of the legal validity of the appointment. This has caused a blurring of the lines between the Head of State, the Executive and the Legislature, and can be seen as an erosion of accountability that the separation of powers is meant to ensure[10].

There have not been any decisions by the apex court in Malaysia, the Federal Court, that may be regarded as being in disagreement with the Court of Appeal’s decision in Musa’s case. The Court of Appeal’s decision is now the law of the land and it opens the door to less stable governments given the practice of party hopping that is prevalent in Malaysian politics[11].

While the conclusion above may be regarded as hypothetical and on that basis, academic, the Court of Appeal’s decision has implication at the Federal level where leadership battles between Prime Minister Mahathir Mohamad and his challenger Anwar Ibrahim remain.

Print and social media[12] continue to report as they have since almost immediately after the “tsunami” of 9 May 2018[13] of ongoing head counts by both camps to determine if Anwar has the numbers to convince the Head of State, the Yang Di Petuan Agong or King, that he commands the confidence of the majority of the members of the Federal House of Representatives, the Dewan Rakyat. The reports usually refer to Anwar placing reliance on statutory declarations sworn by members of parliament said to be loyal to him. The Court of Appeal’s decision in Musa’s case appears to have confirmed that this strategy may be used to circumvent the need for a vote of no confidence by the elected representatives, and that a challenger can do so confident that once he consolidates his position with the usual political horse trading, his appointment can never be challenged.

Suggested Citation: Ganesh Sahathevan, In Malaysia, Eastminster Prevails, Int’l J. Const. L. Blog, Dec. 29, 2019, at: http://www.iconnectblog.com/2019/12/in-malaysia,-eastminster-prevails

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[1] Andrew Harding, ‘Westminster’ Conventions in ‘Eastminster’: Reflections on the Role of the Heads of State after the Malaysian Tsunami, Int’l J. Const. L. Blog, Jun. 21, 2018, at: http://www.iconnectblog.com/2018/06/westminster-conventions-in-eastminster-reflections-on-the-role-of-the-heads-of-state-after-the-malaysian-tsunami.

[2] [2019] 2 CLJ 813

[3]20093 5 MLJ 464.

The matter of the Governor’s exercise of his discretion is in fact the substance of the appeal. See for example Not similar to Perak case, says Musa’s counsel ;Daily Express, November 29, 2019, at http://www.dailyexpress.com.my/news/144038/not-similar-to-perak-case-says-musa-s-counsel.

[4]  Jaclyn L Neo, Dian AH Shah, and Andrew Harding, Introduction to I-CONnect Symposium: Malaysia Boleh! Constitutional Implications of the Malaysian Tsunami, Int’l J. Const. L. Blog, Jun. 21, 2018, at: http://www.iconnectblog.com/2018/06/introduction-to-i-connect-symposium-malaysia-boleh-constitutional-implications-of-the-malaysian-tsunami.

[5] At http://www.kehakiman.gov.my/judgment/file/Judgment%20W-01-122-2009.pdf.

[6] It was anticipated by counsel for the Appellant that there would be argument and a determination by the CoA as to whether the decision in Dato’ Dr Zambry bin Abd Kadir v Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia intervener) 20093 5 MLJ 464 was correctly applied to Musa’s case.  See The Daily Express, Not similar to Perak case, says Musa’s counsel  29 November 2019, at http://www.dailyexpress.com.my/news/144038/not-similar-to-perak-case-says-musa-s-counsel.

[7]Julia Chan,  Musa Aman’s lawyer says appeal thrown out for being ‘academic, The Malay Mail, Thursday, 28 Nov 2019, at: https://www.malaymail.com/news/malaysia/2019/11/28/musa-amans-lawyer-says-appeal-thrown-out-for-being-academic/1814095.

[8]Geraldine Avilla, Musa’s appeal on Sabah CM post dismissed , The New Straits Times, 28 November 2019 at: https://www.nst.com.my/news/nation/2019/11/542867/musas-appeal-sabah-cm-post-dismissed.

[9] Per Yew J in Tan Sri Musa Hj Aman v. Tun Datuk Seri Panglima Hj Juhar Hj Mahiruddin & Anor [2019] 2 CLJ 813, at paragraphs 84-85.

[10] Conceptually any blurring of lines would undermine the basic structure of the Sabah State Constitution. It is now left to be seen whether Malaysia’s judiciary is going to curtail its powers after only recently having re-asserted their position in the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017]. The decision in Semenyih Jaya has been criticized by the former Chief Justice Of Malaysia, Tun Abdul Hamid Mohamad.His critique provides a summary of the doctrine’s rejection and  adaptation ; see Federal Court encroached the jurisdiction of Parliament Bebas News,26 July 2019, at http://bebasnews.my/2019/07/26/13626.

[11] See for example comments by Shaad Saleem  Faruqi, Party hopping immoral, says Law expert, 15 September 2019, at  http://www.dailyexpress.com.my/news/140506/party-hopping-immoral-says-law-expert.

[12] See for example Zikri Kamarulzaman, SD on two-thirds support for Anwar to become PM is fake,19 July 2019, at https://www.malaysiakini.com/news/484498.

[13] Note 4