By M. Bakri Musa,
It reflects how low the public’s respect for our judiciary is that a unanimous reversal by the appellate court of a High Court’s decision should be greeted with such widespread scorn.
We must await the Appeal Court’s written judgment so we could weight its wisdom, legal and otherwise, and compare it to that of High Court Judge Aziz Rahim who made the initial ruling in Nizar vs. Zamry. Justice Aziz gave his within a week. Let us hope the Appeal Court judges, being more senior and higher in the judicial pecking order, would do better and come out with theirs faster. After all they have to set the proper example.
At least the Appeal Court had the common sense to have a quorum of three to hear the appeal. It would have been better on a case of such import involving fundamental constitutional issues to be heard with the full quorum. At least those judges showed better judgment if not common sense than Appeal Court Judge Ramli who in his wisdom decided to hear by himself the appeal on the associated stay of execution.
Regardless, this case is headed to its final level of appeal. Let us hope that the Federal Court would hear this case with its full quorum and not just the minimal. While that is not a legal requirement, it is from the perspective of public credulity. At a time when the image of our judiciary is anything but pristine, this would be an opportunity to restore some credibility.
Thus far these are what we have. In favoring the plaintiff, Justice Aziz Rahim effectively declared that the Sultan of Perak Raja Azlan Shah erred in appointing Barisan’s Zamry as the state’s Chief Minister to replace Pakatan’s Nizar. Justice Aziz cited principally the precedent of the 1966 case of Stephen Ningkan vs Abang Openg.
What is unique here is that Raja Azlan Shah is no ordinary sultan, having served as the nation’s highest judge from 1982 to 1985. In this decision, Justice Aziz is in fact telling the former chief justice that the country’s statutes and legal precedents do not support the sultan’s action. More simply and directly stated, the sultan was wrong
This precedent was set during Raja Azlan Shah’s tenure as a judge, long before he ascended to the Perak’s throne. Meaning, he should be fully aware of the precedent and its attendant legal reasoning when he deliberated on Najib Razak’s (as head of Perak’s Barisan) request to have Zamry replace Nizar.
The only possible explanation for Raja Azlan’s ignoring that precedent must be that he felt that it did not apply to him as a Malay sultan. After all how could a sultan be compared to a mere mortal, the governor of a state? In Malay culture, a sultan is God’s representative on earth; his mandate comes directly from heaven. It is not for mere mortals to trifle with it. Sultans have daulat, a special status denied those common-blooded governors! Unfortunately for our sultans, that is not what is provided for in our constitution.
This delusion of having a special mandate from high above is of course an affliction affecting not only our sultans but also all hereditary leaders everywhere, save the most enlightened.
In reversing the decision, the Appeal Court effectively sided with the sultan. The sultan alone could decide whether the Mentri Besar still commanded the confidence of the Assembly. Presumably the sultan had special divine powers to read the minds of the legislators and how they would vote before there was any voting!
In his decision, Justice Aziz Rahim made some uncomplimentary remarks about the role of the State Legal Advisor (SLA). Indeed the role of the permanent establishment as represented by the police and State Secretary, in addition to the SLA, merit an even greater scrutiny as they reflected the degradation of our pubic institutions. I await the Appeal Court’s written judgment to see whether those wise judges will also comment on this equally pertinent issue raised by Justice Aziz.
Had leaders of the permanent establishment been more professional and less partisan in discharging their duties and obligations, they could have acted as buffers and be the restraining force that would have prevented this crisis from escalating. Instead they became part of the problem, and a major one at that, instead of the solution.
As to the SLA’s claim of neutrality, Justice Aziz “will take it with a pinch of salt.” The SLA admitted to being “instructed” from the respondent’s solicitors in wording his affidavit, a term that took Justice Aziz by surprise. One would have thought that being a legal advisor and thus professionally trained, the SLA would act on his own judgment. Alas those are the qualities of our top officials.
Political, Not Legal Problem
All disputes could ultimately be decided by the courts. However whether some should, is another matter. A perfectly rational and easily comprehensible reason could be advanced on whether certain disputes are best resolved outside the court system. This ongoing dispute in Perak is one such case. It is essentially a political dispute, and as such it would have been best resolved in the political arena. No less a veteran politician than Tengku Razaleigh has said this, and I agree with him.
At the other end of the spectrum, Law Professor Shad Saleem Fariqi said it well and correctly. “… [T]his political crisis in Perak is like a “hydra-headed monster that cannot be eliminated so easily by ding-dong judicial decisions.”
Since the case has landed in court, it still could have played a crucial role in resolving it, had the various participants and institutions been more professional and less partisan. Imagine had the court expedited the case and Justice Aziz rendered his decision prior to May 7th, before that disastrous legislative session where the Raja Muda delivered his speech. The nation would then have been spared the ugly spectacle. Now that singular repulsive episode will forever be engraved as part of the Malaysian democratic tradition.
Had the principal players demonstrated a modicum of restraint and (dare I say it?) wisdom, and delayed the session till after the court’ decision, that too would have spared our nation that shameful blemish.
Najib’s appealing the case only added to the volatility and uncertainty; it is a major distraction and at a time when the nation can least afford it. Even if Barisan were to ultimately prevail, the price – political and otherwise – will be severe. More significantly, it will set yet another precedent on the enhanced powers for our sultans. After the humiliation then-Prime Minister Abdullah Badawi suffered at the hands of the Sultan of Trengganu not too long ago, a reversal of Justice Aziz’s decision will legitimize and cement the sultans’ enhanced powers.
On the other hand, if Barisan were to lose, this judgment would further strengthen the earlier precedent. At the most elemental level, it would establish once and for all that the powers of the sultan within a state are no different than that enjoyed by a governor.
While I would welcome such a development, those who cling to the idea of Ketuanan Melayu or that Malay sultans have a “special” if undefined role in the nation, must pause and ponder the vast implications of such a development. I doubt very much that Najib Razak in his hasty pursuit of immediate short-term gains has reflected on this critical point.
This case has thus far only created losers on all sides. It already exposed the sorry ineffectiveness of our institutions, in particular the permanent establishment. It has revealed the inadequacies of the monarchy in ensuring a smooth transfer of power. It rekindled the sorry memory of the constitutional mess we went through in the 1980s. Most of all the pitiful losers are the people of Perak. Their leaders, from the elected ones in the Assembly, to the hereditary ones in the palace, and the professionals in the permanent establishment, have all failed the people of Perak.
To be reminded that these leaders are paid for by the citizens’ hard-earned cash would merely add the proverbial salt to the still-raw wound, one that has yet to stop bleeding much less begin to heal.
This case awaits its final adjudication at the highest level. When it started the first judge, Judicial Commissioner Mohammad Ariff Yusof, recused himself as he was formerly associated with PAS, Nizar’s party. Now on its final stage, the sitting Chief Justice is Zaki Azmi, up until a few years ago a legal advisor to UMNO, a party in this dispute. Will Justice Zaki heed the example of Judicial Commissioner Ariff? It is on such simple and elemental matters that the credibility of our judicial system hangs.
It’s not losers on all sides. BN gained Perak, while PR lost it. So it’s win-loss.
To prevent such coups from happening again, an anti-hopping law must be enacted as soon as PR wins the 13th GE. And it is sickening that Joseph Pairin Kitingan has nothing to protest against the 3 Perak frogs. Afraid of losing his deputy minister post?
One way or another, umno lost. There are no ifs about the whole thing. And worse, they authored every single bit of way to the difficult – no impossible – predicament they now find themselves in. They armed themselves with isa, osa, printing presses act, sedition act, ag, police, judiciary, macc, ec and msm; and with that very impressive armoury, they gained a real sense of raw power and invincibility. In fact they were actually embolden to harbour thoughts of immortality and perpetual glory. But they overlooked one crucial factor. The people. Perhaps it was their design to ignore them. Power, coupled with invincibility and immortality, alone would bring bountiful wealth and comfort. In this simple formula, the peole has no role to play at all. So why bother? They may be ignored. Sacrificed even should they stray into the path of the powerful.
Marcos had the same idea too. So did suharto and many other equally powerful leader of some other nations. US and USSR too attempted to abuse what they thought were their obviously superior advantage of raw power in afghanistan and in iraq. I need not relate the fate of such erroneous ideas here. They are well known facts by now. It is equally obvious that umno is also heading down the same well trodden path. The end is near and inevitable for them. Najib is finished already. At the moment umno may appear to be headed by a pm but unknown to many it is a mere headless body mass.
All of you should read the letter in Malaysiakini by Ibrahim Ahmad.
IHe suggested Nizar should not appeal to the Federal court. He gave a very account of his case and I strongly agree with him.
No matter how many federal judges sit in his appeal, my guess is that Nizar will be trounced!!!
Yes, Mr Lim, please follow Ibrahim Ahmad’s good intention. Go and read his letter and advise Nizar accordingly.
Dear Lim Kit Siang
I think DAP, Nizar & Siva should drop the appeal to the Fed Court as I just can’t see the Court reversing their and the 1 sided decision of the CoA which completely ignored the Constitution and Separation of Powers.
The people have no faith in the Courts as the Badawi, and now Najib Governments have completely failed to respect the RCI’s on the Police Commission and the Judiciary, thereby insulting the King. This is Sedition.
I think DAP should take the case to the PEOPLE. They should organise legal forums, peaceful gatherings and demos (get police permit way in advance), peace and justice candle-light and black shirt vigils until the UMNO/BN Govt falls, both in Perak and the whole country!!
Now every one can see why Zaki was promoted way over th eheads of many, many senior judges. So, we should not fall into Najibs ‘the courts has decided’ trap and play the game the way they want to play it. Change the rules and parameters.
The people of Perak are the greatest losers!
Nizar must not appeal to the Federal Court and also don’t accept the Appeal Court’s judgement. It’s a foregone conclusion that Nizar will lose. Don’t give Najib the satisfaction or legitimacy of claiming victory from a tainted court and indirectly affirm his assertion.
The law has been sodomised and Pakatan must not lend legitimacy to such a house of prostitution. Bring your case to the people.
“…At least those judges showed better judgment if not common sense than Appeal Court Judge Ramli who in his wisdom decided to hear by himself the appeal on the associated stay of execution….”
In their indecent haste in their first appeal, they arranged for a one judge sitting. Then when they were clobbered for their bungle, they realised their mistake and delayed the sitting so that they can arrange for a three judge sitting. But I cannot help noticing that they always appoint the most junior judge when they want a fast decision. The same thing happened when they had the Judicial Commissioner to hear the case against Sivakumar. On wonders why..
///All of you should read the letter in Malaysiakini by Ibrahim Ahmad.
He suggested Nizar should not appeal to the Federal court. He gave a very account of his case and I strongly agree with him.///—Grace
Yes, Ibrahim Ahmad gave a very strong argument. But Nizar is on the bridge of no return. It can’t be argued that he has only suddenly discovered that the court cannot be trusted. When he decided to take the case to the court, and that was the only option other than accepting the wrongs without protest, he has given the court the final say.
The high Court Judge ruled in Nizar’s favour, and that made a fool of the judges in the Court of Appeal to look for factual difference between the case of 1966 in Sarawak and that of Perak , short of announcing that the Governor was not the ruler.
The Federal court too will have to come out with justifications which might provide classic example of what not to do for law schools around the world. But the court has very little to lose even if they glaringly do the wrong thing. Should the Federal court serve Najib’s interest, it would be the end of parliamentary democracy for Malaysia. What would happen to the country when the people lose confidence in the validity of ballot boxes. Malaysia would become the second Myanmar.
If Nizar chose not to proceed through the court, Najib will say that he had no choice but to invoke emergency rule in Perak. Maybe ithe people have less to lose to allow him to claim he had the support of the court, and the world will know what court we have.
Najib has proceeded from 1Malaysia to 1Police state within weeks. He may soon repeat AAB’s statement that he should not be challenged.
TDM turned Bolehland into Rasuahland, and now NTR is dreaming about turning Rasuahland into One-Man Land. He may have fulfilled his promise to his old man, but he will not last long, and risk losing the position even before he climax.
How many courts in Malaysia speak for Law?
When Lawyer are officers of Courts, THREE Judges told clients to sort out the absence of lawyer for one year in court?
Lawyer got paid but returning client’s draft as his work!
Assaulting Clients, chasing off clients by using Police force!
Lawyer needs not be NJ to use Police force!!
Judges tried to mislead client when the opponent lawyer failed to take documents to prove to court their points!
Why judges in chamber are making their own records! The loophole of manipulation in court!
Court silent for more than 2 years for missing of court record on order given for discharge of lawyer with false statement when no decision was made during hearing and the judge was transferred.
If no case be big enough to expose the DARKNESS of the court, abuse of even the basic rule of conducting a case in a fair manner will be observed. There will never be any hope for a proper judiciary system to come. Judges will only be transfer when Chief of Justice had to do something.
Nizar cannot win the Court! But, HE MUST document how the Court failed to provide Justice in the eyes of every Malaysian!! A case to educate or wake up Malaysians what should be proper but manipulated!!
Please get someone well-versed in law to start a blog forum. Stop Tom-Thumb from waving confusions of law in the case of Police raiding DAP HQ in this blog.
IF NO ONE INSIST LAW AND PROVED THE EXISTING SYSTEM HAD ROTTEN TO THE BOTTOM, NO CHANCE FOR ANY REFORM!
MALAYSIA REMAINS TO BE BOLEH UNDER SHADOWS!
IMHO MB Nizar should continue to pursue legal action, even in the face of a most probable defeat.
But at least his case will be documented, and in the future, could be used to prove whether the judges involved had acted in an impartial manner or influenced by the political agenda of UMNO’s BN…
They might have won materialistically for the moment but they had lost all the hearts of Malaysians. So at the moment they may seem happy but sadness will overwhelm them soon when they face Malaysians! Goodbye at 13GE!
I think the rightful MB of Perak, who in my view is Nizar Jamaluddin, should escalate the matter all the way up the hierarchical rungs in that Rule of Law process ladder.
Then everyone will know, once and for all, the true strengths and weaknesses of that fundamental and critically important independent judicial review process ladder (systemic external audit tool) rung by rung, and also the quality of the human auditors themselves who manage that key process
According to Wikipedia, Raja Azlan Shah was Lord President of the Federal Court from 12 November 1982 until he became the Sultan of Perak on 3 February 1984. And I agree that he is an exceptionally well legally qualified and learned sultan so I guess he must have had his own good reasons for doing what he did in this case where he seems to have, oddly, opted to apply a deliberate/apparent lack of reasoned legal judgement.
“Imagine Power To The People” John Lennon.
If you have a point to drive home, make sure you drive the point home and not just half-way. So go on nizar. Drive home with your point. Show the world that the judiciary in malaysia although still has a conscience (I would like to believe so and the high court judge who ruled nizar lawful is a shining example) is really beholden to umno.
I hope to see sri ram on the FC penal and see if he would give a dissenting view on the matter.
///While I would welcome such a development, those who cling to the idea of Ketuanan Melayu or that Malay sultans have a “special” if undefined role in the nation, must pause and ponder the vast implications of such a development. ///– Musa
The Sultan is the Sultan of the subjects in the states. The Malays should respect the Sultan not because he is Malay, but because he is the Sultan. Perhaps the idea of Ketuanan Melayu brings about the belief that Malays are superior just because the Sultan is Malay, or because the Sultan is Malay then they as Malays somehow attain sub-sultan status. That certainly is vainglory since if the majority of the population think that they are sub-sultan, then that heightened status would have no tangible meaning at all.
One should respect the Sultan and wish that he would be the person people would look up to when there are problems which could not be decided based on arguments alone. We know that politicians while trying to keep their jobs might deviate from the moralistic path. Yet because they hold position of power to the extent that government institutions are at their beck and call, the people would need to have people in towering position such as the Sultan to check their excess.
The constitutional amendments put through by TDM to have special court and to waive immunity of the royals from court proceeding, albeit on their personal conduct blemished the royal houses. ISA has been misused by the government through the biased police department, the judiciary partial to the political party in power and the excess by the ministers seen to be flaunting rule of law compromised the belief that the royal houses could be immune to government excesses. The people are worried that the royal houses might turn out to be another branch of UMNO.
The cost of running an election, no matter how enormous and deemed wasteful are small in comparison to the commission paid out for servicing armed equipment. The service fees Razak Baginda obtained from the government amounting to 500 million ringgit would be enough to cover all election expense in Perak since independence. The Sultan should not worry about how to save public funds in avoiding election. UMNO would give the excuse that it saved public funds if election is not called. It is UMNO that waits for by-election to use public funds to buy votes. They failed invariably.
The longer the Perak debacle drags on, the more Justices will prove themselves as bad judges. Only Najib believed that the world at large had respect for the oral judgement made by the court of Appeals when they could not even put their reasons on writing after one week when the lone High Court judge could do so. They surely have the flare at writing, but perhaps lack the confidence to take a stand on matter which they themselves might not believe in.
If the Federal Court confirms the ruling of the Court of Appeal, then parliamentary democracy in the country would have ceased its meaning. Come 2012 election and if BN loses, non-BN parties might still form the government with a PM duly appointed. The police and other government institutions remain with UMNO. Najib can again visit the Istana with some captured kataks, even against their will, and be appointed as the second PM, with the PM told to resign. What was being played out in Perak can have a replay in KL. Is Malaysia still practicing parliamentary democracy in fact?
Don’t just stop there!!
Go ahead to get it recorded in history so that the fact, may it good or bad, will be for here to stay and it is not just a hear-say matter.