Between support and confidence

IN “No-confidence vote not the only way” (Sept 22), much of the comments by Tommy Thomas were in response to the views expressed by Prof Dr Shad Saleem Faruqi in “Easier said than done” (Sept 18).

In disagreeing with Shad’s view that the no-confidence vote is the only way the Pakatan Rakyat can form the next government, Thomas was quoted to have said, “A written and signed declaration signed by the majority of members of the lower house, where if a member/members of Parliament sees him (the Yang di-Pertuan Agong) and produce documents to show that more than the majority needed have signed a declaration of no confidence. If the King is satisfied with that and genuineness of the signatures, then he can accept that the method of ascertaining the losing of confidence.”

Thomas then went on to say: “Now this is where I must comment on Shad’s statement where he cited the Stephen Kalong Ningkan case (1966) where the High Court in Kuching refused to accept this method.”

According to Thomas, what Shad failed to mention was an earlier Privy Council case (Nigerian case: Adebenro vs Akintola in 1963) and a later Malaysian case which went the other way.

Thomas also referred to the case of Datuk Amir Kahar Mustapha vs Tun Mohd Said Keruak (the “Kitingan” case) which involved the former chief minister of Sabah, Datuk Joseph Pairin Kitingan, where according to the impression given by Thomas, decided that a signed letter cum document could be accepted. Thomas also highlighted the fact that the winning lawyer whose arguments were accepted by the learned judge was none other than the present attorney-general.

It is practically impossible for readers to appreciate the decisions of the cases referred to by Thomas given the brevity of the interview and the lack of particulars of the factual situation in the respective cases.

What Thomas failed to highlight is that the decision of the Privy Council in the Nigerian case and that in Ningkan were discussed and distinguished by the learned judge in the Kitingan case. The decision in the Kitingan case was not about a simple issue of whether a signed letter cum document could be accepted as an alternative to a no-confidence vote.

In the Kitingan case, his Lordship Justice Datuk Abdul Kadir Sulaiman (as he then was) in declining to follow the decision in the Ningkan case dealt with the five distinguishing features highlighted by Justice Harley when Harley declined to follow the decision of the Privy Council in the Nigerian case of Adegbenro.

The distinguishing features referred to were:

» In the Nigerian case, it was mathematically beyond question that more than half the House no longer supported the premier.

» The measurement in Nigeria was a measurement of “support”, not of “confidence”. The Sarawak Constitution is dated subsequent to the decision of Adegbenro v Akintola and it does not seem to me that the “confidence” of a majority of members, being a term of art, may imply reference to a vote such as a vote of confidence or a vote on a major issue.

» In Nigeria it was not disputed that the governor had express power to remove the premier from office if he no longer commanded support.

» In Nigeria the governor had express power to assess the situation “as it appeared to him”.

» In Nigeria all ministers, including the premier, held office “during the governor’s pleasure”.

By reason thereof, Justice Harley held, “All the above five points were peculiar to Nigeria, and not one of them applies to Sarawak. These distinguishing features force me in the present case to a conclusion converse to the Privy Council decision. It seems to me that by the provisions of the Sarawak Constitution, loss of confidence may be demonstrated only by a vote in Council Negri. Men who put their names to a ‘Top Secret’ letter may well hesitate to vote publicly in support of their private views.”

Thus according to Justice Datuk Abdul Kadir: “It is clear that the reasons for His Lordship (Justice Harley) differing in his view from the decision of the Privy Council in Adegbenro v Akintola was because of the five distinguishing features and circumstances appearing in that case. As to the first distinguishing feature and circumstance, it does not happen in this case (Kitingan case).

“In this case the feature and circumstance are the same as found in the Nigerian case in that ... In this case, from the petition (which was incidentally telecast live on television the day before Pairin tendered his resignation), the 30 members not only said they no longer had confidence in Pairin as the chief minister but they also requested the fi rst defendant to convene the assembly and to direct Pairin to table a motion of confidence. However, the assembly was not convened to enable the action to be taken. In addition to that, Pairin himself in his press statement stated he resigned because the ruling party, ie PBS of which he is the leader, no longer had the majority support of the assemblymen, for owing to the defection of the members of his party, the position was reversed with the BN having the majority, and thus paving the way for the BN to form the next government.”

His Lordship, Justice Datuk Abdul Kadir, then went on to conclude: “In the circumstances, Stephen Kalong Ningkan’s case must be distinguished, being a decision based on its own facts and circumstances. The hard fact in that case (Ningkan) was that the alleged loss of confidence was highly suspect. There was a top secret representation made by persons outside the Council Negri which on the fact of it did not disclose that the representors were the majority of members in the Council Negri. Also, the fact represented was suspicious in the sense that the letter was not signed by all persons listed in the letter and even in respect of those who signed, one of them was represented only by a ‘chop’ It was that reason the learned judge (Justice Harley) said at page 193 ‘Men who put their names to a ‘top secret’ letter may well hesitate to vote publicly in support of their private views ... Whereas in the present case, the issue does not arise. The chief minister resigned on his own accord and the reason for the resignation was sufficiently given in his press statement and in the ‘explanation’ given in the Borneo Mail on 11 May 1994 giving his interpretation of the matter.”

Considering the differing facts of the respective cases, the comments by Thomas that Justice Harley’s reasons for not following the decision of the Privy Council in the Nigerian case, as “a very simplistic view” is undeserving, particularly so when His Lordship Justice Abdul Kadir accepted the distinction made by Justice Harley.

Just as in the Ningkan case, at this moment, at best, what Anwar Ibrahim has, to borrow the words of Justice Harley, “is a highly suspicious top secret document” and no more.