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THERE were no less than 59 mentions of the word “convention” in the constitutional case of the menteri besar of Perak (2009) in the Court of Appeal’s judgment.
Given that Malaysia has a written constitution, the three appellate judges had to apply their minds to the position of constitutional conventions in the country. That the federal constitution has its own peculiarities is something that was not lost on Zainun Ali JCA (as she then was), one of the three judges. His Ladyship said:
“Federal Constitution … has its own peculiarities. [It] is embodied in one document and gathers unto itself various sources of law, some of which are implicit. The unique presence of the written law, shot through with informal and unwritten sources in the form of conventions, prerogatives, discretionary and residual powers as such, help ensure the continuation of constitutionalism and the rule of law. Thus, the sources of law in our constitution are several. Article 160(1) of the federal constitution says it all. Law includes written law, the common law, insofar as it is in operation in the federation or any part thereof, and any custom or usage having the force of law in the federation or any part thereof.”
What is constitutional convention?
Her Ladyship offered her thoughts:
“At the time when the former colonies obtained independence from Britain, they adapted many of the constitutional practices established by the English legal and constitutional system. Malaysia included.
“However, the framers of our constitution did not incorporate all of them. They incorporated only those which would accord with the practical reality, usage and custom of this country. Or what they believed to be so. But what of those incorporated ones?
This is where the problem starts, since some conventions are hard to pin down and define. But once they are accepted and followed, they might have obligatory effect. In my view, one of the more useful purposes of conventions is to define the parameters of constitutional discretion and the manner in which it is to be exercised. In short conventions help ‘limit’ the discretionary authority reposed in the government or sovereign.”
With such lucid expressions, it is perhaps no wonder that Raus Sharif JCA (as he then was), the second judge, had only two mentions of “convention”. His Lordship was able to say as follows:
“[E]stablished convention demand[s] that once the menteri besar is made to know that he has lost the confidence of the majority of the members of the legislative assembly, he should take the honourable way out by tendering his resignation and the resignation of the executive council. If the menteri besar refuses or does not tender his resignation and the resignation of the executive council, as had happened in this case, the fact remains that the executive council is dissolved (which include the menteri besar) on account of the menteri besar losing the confidence of the majority of the members of legislative assembly.”