Saturday, May 23, 2009

The implication of the Court of Appeal's favour of Zambry

With the Court of Appeal's ruling in favour of Zambry, has this set a dangerous precedent for future events of such nature insofar as the monarch is concerned?  Below is the article from Malaysiakini which looked indepth into the outcome of the ruling and the possibility of handing 'absolute power' to the monarch.

Decision on sultan's 'absolute power' unprecedented
Humayun Kabir | May 23, 09 3:39pm
The Court of Appeal judgment giving the sultan absolute power to dismiss the menteri besar is setting a dangerous precedent for a non-elected monarch to dismiss an elected head of state without going through the  process of the state legislative assembly, said Mohammad Nizar Jamaluddin’s lawyer pakatan nizar sue zambri 130209 lawyer leong cheok keng

Leong said: “The power to dismiss (by the sultan) has always been believed not to exist but now the Court of Appeal has enlarged the monarch’s power to dismiss the head of  the state government

“What happens if another sultan takes over (Perak) or for that matter any sultan of any state is given such powers which can be abused by the monarch?,” he asked.

He said: “The Court of Appeal judgment has set a dangerous precedent which will lead to the abuse of the separation of powers between the monarchy, the executive, the legislative and the judiciary.”

“This means the menteri besar can be dismissed by the sultan without going through the state assembly merely by a group of assemblymen going to the palace and informing the ruler that a majority no longer supports the menteri besar.”

Leong’s arguments are:

(1) Although the sultan has the power to determine whether or not to grant a dissolution, there is no express power for him to dismiss the menteri besar even after he has determined that the menteri besar has lost the confidence of the majority of the assemblymen.

(2) The sultan’s discretionary powers are to be found in Article 16 of the Perak Constitution only and no where else.

(3) Article 18 of the Perak constitution provides that: “In the exercise of his functions under the Constitution of this state or any law or as a member of the Conference of Rulers, his Royal Highness shall act in accordance with the advice of the executive council…”

(4)  In 1994, the Federal Constitution was amended to stress that: “Where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice,” he must act in accordance with that advice.

Court of Appeal is plainly wrong in its judgment

(5) Professor RH Heckling’s “Malaysian Public Law” in page 76 has written that the pivot on which the whole of the constitution turns is that the power of the Yang di-Pertuan Agong (the Sultan) can only as a general rule be exercised in accordance with the advice of democratically-elected ministers (exco).

(6) The Court of Appeal therefore has interpreted the Perak constitution to allow the sultan to act without advice and without any such express power in the Perak constitution and therefore is plainly wrong in its judgment.

(7) We will submit to the Federal Court that if the sultan has no such power to dismiss, he also has no power to deem the office vacant.

nizar pc 110509 03Leong said: “How can the High Court findings of fact that Nizar has not lost the confidence of the majority of the aduns be reversed by the Court of Appeal? For what reason? We want to know so we are going to appeal against the decision to the Federal Court soon.”

He said: “It is a long and established principle of law that an appeal court does not reverse the High Court’s findings of fact. In this case, it was an express finding that Nizar had not lost the confidence of the majority.

“The High Court judge made the decision after seeing and hearing the witnesses.

“However, the Court of Appeal is substituting its own finding for that of the High Court despite not having had the advantage of first hand evidence of the witnesses,” he added.

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