Sunday, May 24, 2009

Court of Appeal: Contemptible Misjudgment

This is a superb commentary by a clear-sighted and level-headed political analyst on the abysmal verdict of the Appelate Court on 22 May 2009...

Malaysia Today | Sunday, 24 May 2009 14:09
By Kim Quek

The pain was acute and deep when the verdict came, despite it being widely anticipated. The complete silence that greeted the Court of Appeal decision in favour of Zambry Kadir – in contrast to the uncontrollable jubilation that hailed the high court declaration of Nizar Jamaluddin as the lawful Menteri Besar only 10 days ago - spoke for itself. I believe the disappointment and suppressed fury prevailing in the court room this time was reflective of the feelings invoked across the nation when Justice Raus Shariff delivered the 5-minute oral judgment that marked a new low in our judiciary on May 22.

How can the nation not be disappointed when Raus’ judgment is nothing but a regurgitation of a list of the Appellant’s (Zambry) arguments, void of any reasoned input by the panel which also included Justices Zainun Ali and Ahmad Maarop? How can we call this a judgment when the comprehensive and meticulous grounds of judgment of High Court Judge Aziz Rahim and the compelling presentations by the Respondent’s (Nizar) lawyers are completely ignored and side-stepped?

Topmost of the Respondent’s argument is that the Sultan has no power to sack a menteri besar. The panel kept mum on this issue, and since the Appellant didn’t dispute this contention either, it must follow that the issue is settled – the Sultan has no such power. And since Nizar had not resigned when the Sultan appointed Zambry, then how could the court conclude that the Sultan was right in appointing Zambry? Unless, of course, the court is saying that the Sultan is entitled to appoint a second menteri besar when the first one is still serving? But would anyone in his right mind suggest that?

Following the footsteps of the Appellant, the court seems to be equally obsessed with the notion that Nizar had lost the majority, and corollary to that, anything done to get rid of Nizar is okay, as it complies with the democratic principle that the majority must rule.

This line of thinking is defective legally and constitutionally, as the transition of government must follow the rules laid down in the law and the constitution, failing which it is deemed illegal.


In this country, even when the Monarch is satisfied that the head of government has lost majority support, the former has no power to dismiss the latter. This is made abundantly clear in our constitution (whether Federal or State) which expressly states that only the ministers – not the prime minister or chief minister (menteri besar) - serve at the pleasure of the Monarch.

In the case of Perak, even when Nizar has truly lost the majority (which is not at all the case), the Sultan has no choice but to wait for Nizar to resign before he can appoint another menteri besar, if the Sultan withdraws his consent to a dissolution of the state assembly.

Could we then consider this as a major defect in our constitution – a major oversight by the crafters of our constitution? Not at all the case, as our forefathers did not consider it likely that such an eventuality could occur – a head of government so shameless that he refuses to step down when he has truly lost the majority support. And they were proven right, as it has not happened in the past, neither is it happening now.

The crisis in Perak did not spring from Nizar’s refusal to resign for having lost the majority, but was caused by his disagreement that that he had lost the majority. That was made abundantly clear to the Sultan during the audience on Feb 4 when Nizar stressed that there was a stalemate at the assembly following the resignations of three Pakatan assemblymen from the assembly and proposed that the assembly be dissolved. And when the Sultan’s secretary released a press statement the next day, stating that His Royal Highness did not consent to the dissolution of assembly but instead asked Nizar to resign due to HRH being convinced that Nizar “had ceased to command the confidence of the majority of the State Assembly members,” Nizar quickly delivered a written appeal to HRH the same evening, refuting Barisan Nasional’s claim of majority, and reiterating that the assembly was tied at 28, as the Speaker had already accepted the resignation of three Pakatan assemblymen. Nizar further informed HRH that the Speaker and the Perak government had applied to the High Court to declare that these three persons were no longer assemblymen.

This application is still pending in the high court.

Until this court case is finally settled, no one can claim majority in the assembly without a vote of confidence in the assembly that is legally and properly convened. But that wouldn’t be anytime soon as the myriad of interconnected suits and counter suits pending in the high courts would impede the holding of such a seating.


Significantly, as submitted by the Respondent, the Speaker also made an urgent appeal in writing to HRH on Feb 6 to convene a special seating of the assembly, but unfortunately this was not acceded to. So, instead of allowing the assembly to determine the vital question of confidence, the Sultan had relied on his personal interview with individual assemblymen in the Palace to form his judgment that Nizar had lost his majority, thus sparking off a chain of events that have badly shaken public confidence in the integrity and political neutrality of almost all the institutions of state under the Barisan Nasional leadership.

Can the Sultan supplant the assembly as the legal authority to ascertain the level of confidence the Menteri Besar enjoys in the assembly? High Court Judge Aziz has ably answered the question in his judgment on Feb 11. He said that reading Clauses 2, 5 & 6 of Article 16 of the Perak constitution together will lead one to logically conclude that it is the assembly that determines whether it has confidence in the Menteri Besar as head of the the Executive Council, as “the Executive Council shall be collectively responsible to the Legislative Assembly” (Clause 5). Since the Menteri Besar and his Exco are answerable only to the assembly and to no one else, why should the Sultan or for that matter, any third party be allowed to be the final arbiter as to whether the Menteri Besar has lost the confidence of the assembly and therefore must quit? In other words, while it is the Sultan who appoints a menteri besar, it is only the assembly which can decide his fate.

Regretably, the panel led by Justice Raus had no answer for this remarkable ground of Aziz’s judgment. And without giving a single instance of how Aziz has floundered, how could the panel conclude that “the learned high court judge erred in law when interpreting the Perak Constitution” and overturned his judgment?


It is clear that the panel’s judgment has already collapsed on these two scores alone – that the Sultan has no power to sack the Menteri Besar, and that the Sultan cannot supplant the assembly to ascertain the confidence enjoyed by the Menteri Besar.

The saddest part is that this judgment is but one of a series of judgments handed down over the Perak crisis from the nation’s highest courts – federal court and court of appeal – which have been widely criticized as politically partisan resulting in various dubiosities – blatant disregard of constitutional provisions, judgment without proper or written grounds or judgment in indecent haste. This only serves to confirm a widely held opinion that in the rarefied stratosphere of these courts, honesty and integrity are rare commodities, which must be the inevitable phenomenon of a system that rewards the compliant but dishonest and punishes the non-compliant but honest.

One can foresee that as the Barisan Nasional continues to maintain its questionable hold of power in Perak, more and more of these abominable transgressions of justice will flood our radar screens as the host of legal cases unwind themselves through the higher courts. While these will inflict grievous damage to our national image, they will ironically hasten the day of real reforms as more and more people will become convinced that the only way to restore the rule of law is to have a regime change.

[Kim Quek aka Yong Thye Chong is a well-respected political commentator and author]