CONSTITUTIONAL LAW

GROUP 3

AHMAD ZAIM SUHAIL BIN AHMAD MUJAHID 2128329

AHMAD IDHAM BAIHAQI BIN MD AZMAI 2129255
AMIR HAFIZ BIN AZIZAN BAQI 2122945
 CASE SCENARIO

Mr Joya lost majority submission of sd to

HRH

Awana is a country with a constitution similar to the Federal Constitution. Mr. Joya is the Prime
Minister in the state of Awana and the President of Badai Party, one of the parties in the political
coalition known as Gagah Alliance that won the last general election. Gagah Alliance is a political
coalition comprising of three parties namely Badai, Ribut and Petir in which Badai as the party who won
the most seats in the House of Representative (HOR). Last week, Mr. Joya is said to have lost the
confidence of the majority of the Members in the HOR. This is following the submission of Statutory
Declarations (SDs) furnished to His Royal Highness by the majority Members in the HOR indicating
their loss of confidence towards Mr. Joya. His Royal Highness upon receiving the SDs, called all the
Members of HOR for an audience pertaining the matter.
Mr Joya was dismissed Miss Efa as naturalisation elecetion during
the new PM pandemic

Soon after that, Mr. Joya was dismissed from his position as the Prime Minister in the state of Awana.
His Royal Highness has appointed Miss Efa, who is a member in the HOR as the new Prime Minister. Miss
Efa, who was from the state of Arendale has acquired her Awana citizenship through naturalisation a
year ago. Public especially those supporting the opposition party made comments in social media
disapproving Miss Efa as the new Prime Minister because she is a woman and not a true Awana citizen.
They demanded for a new election to be held despite a global pandemic happening at the moment
known as LOVID-19. Because of this, Miss Efa requested His Royal Highness to declare state of
emergency but was declined. Mr. Joya challenged the validity of the appointment of Miss Efa as the
new Prime Minister since Miss Efa is the President of Petir who only won 15 seats in the last election.
 emergency?

Mr. Ally bribery

Mr. Joya also challenged the validity of his dismissal as the Prime Minister since no provision in the
Awana Constitution that allows His Royal Highness to dismiss a Prime Minister and the SDs should not be
taken as a way to demonstrate loss of confidence. Mr. Akin, a former member of HOR questioned HRH
decision to decline to a request for emergency made by the Prime Minister as being unconstitutional.
Meanwhile Mr. Ally who is a member of House of Representative was convicted by the High Court for the
offence of bribery and now waiting for an appeal to the Court of Appeal. He was not sure whether his
membership as the member of House of Representatives has been disqualified.

Discuss all the legal implications in the above-mentioned problem.

ISSUE 1
Whether the dismissal of
Mr. Joya made by His Royal
Highness after losing the
confidence of the majority
is valid or not?
 RULES

Article 43(4) of Federal Constitution Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin
v Dato’ Seri Zambry bin Abdul Kadir
Evidence from outside of the Dewan Negeri Perak like
statutory declaration from MPs can be taken into
consideration by His Majesty the Sultan in determining
whether there is loss of confidence.
If MB Nizar refuses to tender the resignation, he is deemed to
have vacated his position as the Menteri Besar in accordance
with Article XVI, Clause (6) (shall tender resignation)

Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawisli

The plaintiff contended that the governor's view that the plaintiff had lost the confidence of the
majority was not supported by the meeting of the Council Negri.

The Governor declared the plaintiff and other members of the Supreme Council had ceased to hold
office.

The Kuching High Court held that the Governor did not have the power to dismiss the government.
 Professor Emeritus Datuk Dr Shad Saleem Faruqi

several steps need to be taken in case of loss of confidence :

1. If the Yang di-Pertuan Agong is satisfied that there is a credible claim or proof of loss of
confidence, the Yang di-Pertuan Agong has a constitutional duty to look into the matter.

2. If presented with sufficient evidence, the King may ask the incumbent Prime Minister to
convene the House to obtain a vote of confidence. If the vote is in favor of the incumbent, the
matter ends there.

3. If the Prime Minister refuses to convene the House, the Yang di-Pertuan Agong can then make
his own judgment or decision about who commands the confidence of the House.
 Professor Emeritus Datuk Dr Shad Saleem Faruqi

(4) If the King is satisfied that the parliamentary support for the Prime Minister has been forfeited,
he can require the Prime Minister to observe the Prime Minister's duty under Article 43(4) to either
advise dissolution or resign. If the Prime Minister resigns, the King has a choice to appoint a new
interim Prime Minister from the House.

(5) If, instead of resigning, the Prime Minister advises dissolution, the King has the discretion under
Article 40(2)(b) to accept or reject the advice to dissolve.

(6) If the King rejects the advice to dissolve, he can demand that the Prime Minister resign. If the
Prime Minister refuses to resign, the Prime Minister can be removed in accordance with the Perak
ruling.
 APPLICATION

Applying the provision, if Mr Joya ceases to command the confidence of majority of the members
of HOR, HRH has the option to dissolve the Parliament upon the request of the Prime Minister
Joya or demand the Prime Minister to resign.

Pertaining the matter to dissolve the Parliament, according to Article 40(b) of the Federal
Constitution, HRH may act at his discretion to withhold his consent to the dissolution of
Parliament.
So, in this case, if HRH refused to dissolve the parliament, Mr Joya will be required to resign.
HRH has no power under the constitution of AWANA to dismiss Mr Joya. The dismissal will be
declared as unconstitutional.

Assuming that the steps provided by the Shad Faruqi has been followed in determining the case
of loss of confidence, if Mr Joya refuse or does not tender his resignation, the fact remain that he
cease to command the majority support on the ground that there is clear evidence showing that
he had lost the confidence of the majority of the HOR.

resign!
 APPLICATION

This is because evidence of loss of confidence in Mr Joya may be gathered from other sources.
This can be proven by the submission of statutory declarations by the members in HOR.

HRH also called all the members of HOR for an audience pertaining to the matter.

If Mr Joya still refuses to resign, he can be removed as in accordance with the Perak ruling in
Dato’ Seri Ir Nizar Jamaluddin v Dato’ Seri Dr Zambry bin Abd Kadir

So, applying the case, the submission of the statutory declaration by the majority members of
HOR can be taken into consideration by HRH in determining whether Mr Joya has lost the
confidence of the majority.

Even if he refuses to resign, he still will not be able to maintain the PM position as he has lost the
confidence of the majority.
 In conclusion, the dismissal of Mr Joya as the Prime Minister
by His Royal Highness (HRH) can be considered as
unconstitutional since the Federal Constitution is silent on
that matter. However, if Mr Joya refuses to tender the
resignation, Mr Joya is deemed to have vacated his seat as the
Prime Minister.
 ISSUE 2

Assuming that Miss Efa had already qualified to become a Prime Minister,
Whether His Royal Highness decision to decline to a request for emergency
made by the Miss Efa is unconstitutional.
 RULES
ARTICLE 39 ARTICLE 150 (1)

ARTICLE 40 (1A)
 Abdul Ghani b. Ali [commat] Ahmad & Ors v. PP

Q: Whether the YDPA must act on the advice of the cabinet in

proclamation of emergency ?

Held : “It is my considered view, based on the constitutional provisions

and the authorities cited that the YDPA in acting under cl (1) of A.150 of
the constitution. In a position of a constitutional monarch, must act on
the advice of the cabinet as provided in A. 40 of the Const”.

Act on the advice would mean that he has no option but to accept the
advice.
 Dato Seri Anwar Ibrahim V. PP

The YDPA must act upon the advice of the [Link] advice envisaged by
A. 40 (1A) is the direct advice given by the recommender and not
advice obtained after consultation.

In the context of a. 122B(1) of the constitution, where the PM has advised

that a person be appointed a judge and if the Conference of Rulers does not
agree or withholds its view or delays the giving of its advise with or without
reasons, legally the PM can insists appointment be proceeded with.
 APPLICATION
HRH cannot decline the request of the emergency by PM MISS EFA.

Article 40 (1a) clearly explains that in the exercise of the YDPA functions in executive his
majesty shall act in accordance with the advice of the cabinet.

Applying the Art 40 (1a) HRH cannot simply decline the request of Miss Efa to pronounce the
emergency declaration.

Applying the case of DSAI, HRH must act upon the advice of Miss Efa.
Here, HRH has no option but to accept the advice or the request of proclamation
Applying the case of Abdul Ghani, in a position of a constitutional monarch, must act on the
advice of the cabinet as provided in Art 40 of Fed Consti.

Applying article 150 (1), supposedly the HRH considered to accept Miss Efa's request to
proclaim the emergency because of the outbreak of lovid-19.
If a new election were to be held, it would endanger public security, economic life or
public order in the federation.
 CONCLUSION
DECLINE!

His Royal Highness decision to decline to a request

for emergency made by the Miss Efa is
unconstitutional.
 ISSUE 3

Whether Miss Efa has the qualifications

to be appointed as the Prime Minister ?
 Article 43(7)
a person who is a citizen by Article 40(2)(a)
naturalization or by registration, shall
not be appointed as the Prime Minister Yang di-Pertuan Agong power to
RULES/LAW appoint Prime Minister

Article 43(2)(a)
Yang di-Pertuan Agong appoints Prime Article 39
Minister who likelky command the
confidence of the majority of the Yang di-Pertuan Agong is part of
members of that House. the executive body
Tun Datu Haji Mustapha bin Datu Harun v Tun Datuk Haji
Mohamed Adnan Robert, Yang di-Pertua Negeri Sabah & Datuk
Joseph Pairin Kitingan (No 2)

Tan Chiaw Thong J:

the head of state cannot unconstitutionally
exercise his judgement to appoint the chief
minister without taking into consideration
the number of elected seats secured by
each and every political party.
Unconstitutional with article 6(3) of Sabah
Constitution.
 APPLICATION
-

Based on article 39 of Awana Constitution, His Royal Higness is a part of the executive
body, and he has the power to appoint the Prime Minister as what provided under article
40(2)(a). However, His Royal Higness cannot straightaway appoint Miss Efa as the
Prime Minister without considering some considerations. Applying article 43(2)(a) of
Awana Constitution, His Royal Higness shall appoint a person to be the Prime Minister
who is likely to command the confidence of the majority of the Members of the House.
Thus, His Royal Highness must make sure whether Miss Efa has the confidence of
majority or not in the House.
Next, applying the case of Tun Datu Haji Mustapha bin Datu Harun v Tun Datuk Haji
Mohamed Adnan Robert, Yang di-Pertua Negeri Sabah & Datuk Joseph Pairin
Kitingan (No 2), His Royal Higness cannot exercise his judgement to appoint Miss Efa
as the Prime Minister without taking into consideration the number of elected seats
secured by each and every political party. In this situation, it was claimed by Mr Joya
that Miss Efa only won 15 seats in the last election which shows that she did not have
the confidence of majority of the members of the House of Represantives. In addition,
His Royal Highness cannot claim that his judgment is based on article 43(2) since it is
unconstitutional.
 APPLICATION
-

Next, to be appointed as a Prime Minister, Miss Efa must be a citizen of Awana.

Applying article 43(7) of Awana Constitution, she cannot be appointed as the
Prime Minister because she acquired her citizenship by naturalisation and if she
is still appointed as the Prime Minister by His Royal Higness, it will be treated as
unconstitutional with Awana Constitution. Thus, she cannot be appointed as the
Prime Minister of Awana
 CONCLUSION

In conclusion, Miss Efa has no qualification to be

appointed as the Prime Minister because she did
not obtain the confidence of majority of the
members of the House of Representatives and she
obtained her citizenship through naturalisation.
 ISSUE 4

Whether Mr Ally who was convicted by the High

Court for bribery is still qualified to become a
House of Representative?
 RULES/LAW

Article 47(b)
Qualifications for membership of Parliament
Article 48(e)
Disqualified from being a member if he has
convicted of an offence by a court of law in
Federation and sentenced to imprisonment for a
term not less than one year or to a fine of not less
than RM2000 and has not received a free pardon.
Article 48(4)(a)
The disqualification will take effect upon the expiry
of 14 days from the date on which he was
convicted, and sentence.
Article 48(4)(b)
If within the period of 14 days, the person
makes an appeal in respect of that conviction
or sentence, the disqualification shall take
effect upon the expiry of 14 days from the date
on which such appeal or other court
proceeding is disposed.
Article 48(4)(c)
Disqualification shall take effect immediately
upon the petition for a pardon was being
disposed of if that person filed the petition
within the specific period in paragraph (a) or
period after the disposal of the appeal or other
court proceeding specified in paragraph (b)
 APPLICATION
-

Based on article 47 of Awana Constitution, it can be assumed that there

will be no issue relating to his age to be the member of the House and it
can be assumed that he is the citizen resident of Awana. However, cross
referred with article 48(e), he can be disqualified for membership as he
has been convicted with an offence of bribery. Assuming that he had
been sentenced to imprisonment for a term not less than one year or to a
fine of not less than RM2000 and has not received a free pardon from
His Royal Highness, he can be disqualified under this article.
Pursuance to article 4(a)(i), the disqualification of Mr Ally will take effect
upon the expiry of fourteen days from the date he was convicted and
sentence for the offence he committed. However, assuming that within
the period of fourteen days, he made the appeal to the Court of Appeal in
respect of that conviction or sentence, the disqualification will only take
effect upon expiry of fourteen days from the date the appeal is disposed
by the court. Even if after the appeal was disposed by the Court, if he can
file a petition for a pardon within those fourteen days, the disqualification
will take effect immediately when the petition being disposed of.
 CONCLUSION

In conclusion, Mr Ally is still qualified to be the

member of House of Representatives. He will only
be disqualified after the expiry of fourteen days
from the date on which the appeal is disposed.
 THANK YOU
Selamat Hari Raya Chor