By NH Chan
On Feb 9, the five-member Federal Court panel handed down a unanimous decision on Nizar Jamaluddin versus Zambry Abd Kadir. The judgment of the court was read by Chief Judge of Malaya Arifin Zakaria.
The judgment is 40-pages long and if you have the stamina to persevere to the end of the judgment you would have realised that these judges of the highest court in the land have, under the pretext of interpretation, decided that the Perak sultan has the power to dismiss the incumbent Menteri Besar Nizar when the Laws of the Constitution of Perak does not confer any executive power on the sultan for so doing.
If the sultan has no power to dismiss Nizar then, we should ask, how could the Federal Court commit such a devastating error to their reputation as judges of the highest court in the land?
That is why the ability to pick out the one real point that matters is so important. That is why young advocates learnt how to spot it very early in their career if they are not to bore the judge, whom they are addressing, to tears.
This is what Sir Patrick Hastings – he was one of the great advocates of his day before and after World War II – had to say about the ability to seize upon the one vital point that is to be found in any case; see his book Cases in Court, p 333:
“The ability to pick out the one real point of a case is not by itself enough; it is the courage required to seize upon that point to the exclusion of all others that is of real importance.”
In the case of Nizar vs Zambry, the only point that matters in the appeal is whether the Perak sultan has any executive power to remove a menteri besar who had been appointed by him under Article 16(2)(a).
Yet these five myopic Federal Court judges were unable to see that this is the only point that matters in the appeal when every budding young lawyer knows about it instinctively.
Lost in a quagmire
These five myopic judges were lost in a quagmire of confused thinking caused by their own incompetence. They found themselves deep in the forest unable to see the wood for the trees. Does this mean that we have a bunch of incompetent judges who sit in the highest court in the land?
Article IV of ‘The Laws of The Constitution of Perak’ says, “the Menteri Besar” means the officer appointed by virtue of Article XII. Article XII says:
(1) His Royal Highness shall appoint by instrument under his sign manual and State Seal, a Menteri Besar pursuant to paragraph (a) of Clause (2) of Article XVI.
And paragraph (a) of Clause (2) of Article XVI says:
(1) His Royal Highness shall appoint an Executive Council.
(2) The Executive Council shall be appointed as follows, that is to say –
(a) His Royal Highness shall first appoint as Menteri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the Assembly; and
(b) He shall on the advice of the Menteri Besar appoint not more than 10 nor less than four other members from among the members of the Legislative Assembly;
That was how Nizar came to be appointed the menteri besar. He was appointed by the Perak sultan to be the MB by the application of the provision of Article 16(2)(a) of the Perak constitution shortly after the 2008 general election.
The provision of Article 16(2)(a) gives the Perak sultan the executive power to appoint a menteri besar “who in his judgment is likely to command the confidence of the majority of the members of the Assembly”.
Article XVIII (2) is the only other provision in the state constitution where the sultan “may act in his discretion in the performance of the” functions stated in Clause 2 of Article 18. Paragraphs (a) and (b) of Clause 2 read:
(2) His Royal Highness may act in his discretion in the performance of the following functions (in addition to those in the performance of which he may act in his discretion under the Federal Constitution) that is to say –
(a) the appointment of a Menteri Besar,
(b) the withholding of consent to a request for the dissolution of the Legislative Assembly.
Sultan has no power to sack MB
After the sultan has appointed a menteri besar under Article 16(2)(a), then, has he the executive power to remove him?
The answer is definitely no, because the only executive power left for the sultan in which he “may act in his discretion” – after a menteri besar has been appointed under Article 16(2)(a) – in respect of the menteri besar can only be found in Article 18(2) (a) and (b).
Apart from Article 18(2)(a) and (b) there is no other executive power bestowed on the sultan concerning the position and status of the menteri besar. The sultan, therefore, has no executive power under the Perak constitution to remove a menteri besar.
Nor has he any power under Article 16(6) and (7) to dismiss or remove him.
Article XVI (6) and (7) say:
(6) If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, … he shall tender the resignation of the Executive Council.
(7) Subject to Clause (6) a member of the Executive Council other than the Menteri Besar shall hold office at His Royal Highness’ pleasure, but any member of the Council may at any time resign his office.
By Clause (6) a menteri besar who ceases to command the confidence of the majority of the Legislative Assembly “shall tender the resignation of the Executive Council”. But what if any member of the executive council or all of them including the menteri besar – for the menteri besar is also a member of the council – were to refuse to resign?
Clause (7) provides the answer to this question. It says, “Subject to Clause (6) a member of the Executive Council other than the Menteri Besar shall hold office at His Royal Highness’ pleasure, but any member of the Council may at any time resign his office.”
Clause (7) clearly says that members of the executive council hold office at the pleasure of the sultan. The sultan can remove them from the office of executive councillors if they refuse to resign.
Hold office at the ruler’s pleasure
But the menteri besar, once appointed by the sultan, does not hold office at the ruler’s pleasure. Therefore, Nizar, once he had been appointed the menteri besar by the application of paragraph (a) of Clause (2) of Article 16, cannot thereafter be removed from office by the sultan. This is because Clause (7) says the menteri besar does not hold office at the pleasure of the ruler.
Therefore, even if the menteri besar ceases to command the confidence of the majority of the members of the Legislative Assembly, the sultan has not the executive power to remove him as menteri besar.
That being the case, the only way to remove a menteri besar is to obtain a vote from the Legislative Assembly to remove him. Alternatively, the sultan may dissolve the Legislative Assembly if requested by the appointed menteri besar – who is Nizar as he cannot be removed by the sultan – to do so under Article 16(6).
Therefore, the legitimate Perak MB is still Nizar, and not Zambry. Then, how could the Federal Court give such a perverse decision in favour of the usurper Zambry when the Perak constitution does not confer any executive power on the sultan for him to do so? This is especially so when Nizar is still in office as the MB – a position he still holds in accordance with the law.
nh chan
Gong Xi Fa Cai , u should retire gracefully rather than becoming a tool for Dap.
Not to forget Sultan Azlan Shah was a TOP JUDICIAL PERSON those days!
Is the glass half full or half empty? Make a stand and then find reasons to support it.
“They found themselves deep in the forest unable to see the wood for the trees…..”
Oh, believe me they saw the wood as clear as daylight. They also saw the writing on the wall and the implications that will flow from either stand that they take. Possible factors considered could include their rice bowls, their careers, their peaceful retirements and the backlash if a “wrong” stand is taken.
So they have to defend and to justify no matter how flimsy and ridiculous these may be. The reputations and well-being of so many in the various institutions were depending on this decision and hey, they didn’t want to rock the boat lest they be labeled as “disloyal, insensitive, have hidden agendas, politically motivated, bla bla, bla”. They don’t need this.
In Bolehland, it is a matter of survival. The people have short memories, are powerless anyway and can be abused if not sodomised.
Never fear, as the Judges said. There is a way out.
In 10 years time (maybe), another Coram in another case will find this decision perverse and very clearly wrong in law (like the Adorna case) and should not be allowed to stand as law in the law books. They will then “right” this “wrong” and everything will be OK. In about 10 or more years time, hopefully. Meantime the rats can play.
“The ability to pick out the one real point of a case is not by itself enough; it is the courage required to seize upon that point to the exclusion of all others that is of real importance.” – NH Chan.
This is so true not just in law but of many other instances in Life. In schools and universities we score marks depending on the number of points we could think off. It shows our range of imagination and analysis. In real life everything stands on one or two crucial points or issues upon which everything stand upon or fall apart that we either grasp or ignore at our own peril!
On the question of critical points.
An MB is also a state executive councillor but for purposes of Clause (6) which states “a member of the Executive Council OTHER than the Menteri Besar shall hold office at His Royal Highness’ pleasure”, NH Chan is surely correct to construe that MB does not hold office “at His Royal Highness’ pleasure” (for purposes of removal or opposed to initial appointment). This is a critical point. But this has limits. His Royal Highness could probably sack the MB when the opposite side successfully obtains a majority vote of no confidence against the MB and yet the MB refuses to request the Ruler for dissolution of the Legislative Assembly or resign on his own accord….
NH Chan goes further “That being the case, the only way to remove a menteri besar is to obtain a vote from the Legislative Assembly to remove him. Alternatively, the sultan may dissolve the Legislative Assembly if requested by the appointed menteri besar – who is Nizar as he cannot be removed by the sultan – to do so under Article 16(6).
What is interesting is his Royal Highness has the discretion, besides “appointment of a Menteri Besar”, “the withholding of consent to a request for the dissolution of the Legislative Assembly” – per Article XVIII (2) (b) of Perak constitution.
So here is another critical point that is not clear and has been leveraged to the hilt by Zambry/BN’s camp. The crucial question here is: what are circumstances by which his Royal Highness could withhold his consent to a request (by Nizar) for the dissolution of the Legislative Assembly? (It is recalled that in Perak’s case, there was no vote of no confidence on Nizar passed and his Royal Highness had also withheld his consent to Nizar’s request for dissolution).
NH Chan is not that clear here on this point. Maybe he can enlighten us on this. According to Zambry’s side his Royal Highness has “absolute prerogative” to reject his request for dissolution of the Legislative Assembly, and flowing from that, the Ruler has discretion to determine on his own by head count that Nizar lost majority to BN (no need for vote of no confidence) and from there to resolve the impasse of Nizar’s not wanting to resign on his own accord, to sack him!
All the legal point aside, from the point of social good and institutional betterment, the 5 judges did the wrong thing when they could have done the right thing.
It is clear then that the judges do not care to stand up for social and institutional betterment when its against the wishes of UMNO/BN. Its clear these are not the judges of the highest calibre in terms of personal quality. These kinds of subtle but highly significant difference that has happened since 1988 – the damages of Mahathir.
There is no conceivable way to social and institutional betterment reason to justify ruling against Nizar. Prerserving whatever minor justification of UMNO/BN underhanded ways which are are overused anyway does nothing for social and institutional betterment.
Laws aside, the ruling is further proof that the large picture of social and institutional degradation is too far gone and need to be changed
By the verdict, cross overs by kataks (not losing their seats obtained from the ticket of the opposite side) induced by whatever reasons, changing of state government without need for vote of no confidence on existing one or renewed mandate of fresh state wide elections are all legally sanctioned. “All the legal point aside, from the point of social good and institutional betterment” is that good?
Five judges, myopic maybe but definitely knew what they were doing
Down d slippery slope with Paul A leading d way
Titles, power, n $$$$ 2 follow just as Paul A enjoyed
N they will also end up d way Paul A did
We have reached a TIPPING POINT in Malaysia.
Malaysia cannot progress for the better unless there is a change in government.
PR may not form an ideal government but Malaysians need to go through the process of changing the government – only then will proper and basic reforms be started.
Just look at how the brave Indonesians voted for change after Suharto…now I suggest they are further down the road to reforms than 1Malaysia.
Many of the judges in Malaysia are mercenary judges put in position to serve the interest of UMNO. In critical time, they will be called to serve in cases involving the interest of UMNO. This is precisely why Chief Justice Zaki has rejected request for the case to be heard by a panel of 9 judges. The judgement handed down by these mercenary judges is perverse and ridiculous but not unexpected. They are just mercenaries paid to finish the job according to specification.
This is a ridiculous comment I have read so far. Who gave Lim Kit Siang the rights to criticise our Judges? His comment is enough for him to be charged under Contempt of Court. I am sure this will end the political life of Lim Kit Siang. I can’t believe our country allows anyone to criticise the verdict of our Court.
What Lim Kit Siang said is totally out of the point. As a Malay, we should be loyal to our country. These Judges have demonstrated that they are loyal to our country and they highly respected the rights of our Malay Rulers. These are the characteristics our judges should possess and we should all pay respect to them.
Brother Kit and all Malaysians, I think it is a waste of time to debate who is right and who is wrong as no matter how much fact that NH Chan trying to put thru, it will never change the current corrupt judiciary. Malaysian will just NEVER win in the corrupt court… the only way to win is to be patient, and wait for GE13 (Only 2 more years to go). The result of GE13 will tell everyone in Malaysia..who is right and who is wrong. Judiciary will never do justice to us, it’s time for all Malaysia loving people to stand up for their own right and tell all the mighty JUDICIAL EXECUTIVES and their gangs that they are so wrong!!! Hopefully all this corrupt people will MIGRATE after GE13 and they will be the “brain drain” that we will NEVER miss.
Yes, yeah, b respectful, b subservient, n b chickens 2 superiors
Wipe n lick their A holes dry n clean after they had done their big fat business, shiok ya
“What Lim Kit Siang said is totally out of the point. As a Malay [read: UMNOputra], we should be loyal to our country. These Judges have demonstrated that they are loyal to our country [read: loyal to UMNO] and they highly respected the rights of our Malay Rulers [read: UMNO]. These are the characteristics our judges should possess and we should all pay respect to them.”
My former AP partner Kasim Amat doesn’t understand English very well.
Dear Malaysian. Please dun just vote BN out. Just by casting your votes for PR is NEVER enough. We have to canvass more new votes for PR by initiating our own ” Voter get Voters” campaign as espoused by RPK. Do a “VOter get Voters” campaign by chain emails, words of mouths, during social gatherings. PR need to win by a massive majority so that evil BN cannot cheat by FRAUD & FROGGIES. Long Live DSAI, Long Live PR. Down with BN..evil BN..
#10 Kasim Amat
As usual, Kasim Ahmat never fail to entertain and amuse us with his lack of grey cells!
Ha ha ha
N.H. Chan did retire from being a judge.
Now, he is trying to enlighten us about ‘The Laws of The Constitution of Perak’, not the law according to DAP, Umno or any political party…
What’s ridiculous is that there are people who mouth off about respecting the law & the constitution and being loyal to our hereditary rulers, but do not actually understand the concept of constitutional monarchy.
NH Chan is just simply explaining how ‘The Laws of The Constitution of Perak’ defines the ‘boundaries’ of the reigning monarch’s authority in relation to the Menteri Besar, who is the head of the state government duly elected by the rakyat.
However, this does not in any way restrict the reigning monarch’s authority in affairs related to the Malay culture & traditions and the religion of Islam.
///So here is another critical point that is not clear and has been leveraged to the hilt by Zambry/BN’s camp. The crucial question here is: what are circumstances by which his Royal Highness could withhold his consent to a request (by Nizar) for the dissolution of the Legislative Assembly?///–Jeffrey
The Sultan could withhold his consent like he did. But he should not have appointed a new MB until the SLA voted out the state government. The Sultan could then await the resignation of the MB who had lost the vote.
The right to withhold his consent did not authorize the Sultan to sack the MB. Had the Sultan waited for the state government to convene the SLA, there would not be a need for the top judges to expose their art in confusing the general readers.
And what kind of a tool is you…..chengho?
Dressed in cheongsam…not Chinese….dare not reveal your true identity….keep putting out comments to carry UMNO balls.
You are a balless …good for nothing carpet begger.
Are you suggesting to N.H.Chan to join MCA or Gerakan?
What a sick UMNO racist bloke….you are….CNY…insulting a true blue Malaysian….who is celebrating his Chinese festival and get your insults.
Real pariah UMNO dog..you are.
And what kind of a tool is you…..chengho?
Dressed in cheongsam…not Chinese….dare not reveal your true identity….keep putting out comments to carry UMNO balls.
You are a balless …good for nothing carpet begger.
Are you suggesting to N.H.Chan to join MCA or Gerakan?
What a sick UMNO racist bloke….you are….CNY…insulting a true blue Malaysian….who is celebrating his Chinese festival and get your insults.
Real UMNO dog..you are.
What do rakyat expect from the 5 clowns. Justice?? My foot!!!!!!!! We know the outcome before these so called “learned judges” can open their stinking mouths.
However, we believe it is a blessing in disguise for our Perakians. That mamak “zombie” and his cronies will just do anything to hold on to power. We rakyat will enjoy whatever comes along.
But, come GE13, we will kick the BN out esp that fat mamak “zombie.
As for that “kissing Amat, he must be speaking thru his ar_ehole when he wrote “the characteristics our judges should possess and we should all pay respect to them.”
Anyway what do one expect from bums with a pea brain mentality and stupidity like him. Never ever wrong, ketuanan, sombong and racialistic behaviour. So, K. Amat, just piss off and dont tarnish this blog.
Bro LKS n NH Chan,
Lu apa mau cakap, lu kalah lu kalah le, apa mau condemn judges… tatak gentleman le. Lu mau semua judgement go for u ke? Once lost u said the judges from UMNOPutra are out to finish ‘the job’. Let see who rakyat choose at the next PRU 13, i did give my vote for Pakatan at the last PRU 12 BUT NEVER AGAIN PAKATAN IS BEING COMING ARROGANT AND SO DO SOME OF THE APEKPUTRA THAT WROTE AND COMMENT IN THIS BLOG.