Wednesday, February 10, 2010

The Perak MB Case

"As I said before, our judges in the upper echelon of the judiciary will continue to foil the people in this country. Today, the principles governing parliamentary democracy and the rule of law have been sacrificed because they have to please the political masters."

I hope the BN leaders in the midst of their celebrations realise the significance of the ruling. It means that the monarch can refuse the appointment of a menteri besar chosen by the party in power (as in Terengganu) but now can dismiss the lawful menteri besar if he so chooses. Another black day for the country."

[Zaid Ibrahim, former law minister and Pakatan coordinator]

The Federal Court decision today will lead to a situation where there could be “absolute monarchy” in Malaysia, claimed former menteri besar Mohammad Nizar Jamaluddin. He said there will be no need to hold elections, since the ruler can decide on who can lead the executive at state or federal level. NONEAt a press conference immediately after the court ruled against him today, Nizar said: “This is the highest risk the country is facing now, (and) which we need to correct. The verdict I felt has set aside the principles of what (is) already in our federal constitution.” Nizar also said he has yet to decide whether or not to file a review against the decision which declared BN's Zambry Abd Kadir the lawful menteri besar of Perak. "We will scrutinise the written judgment and then decide," he said, calling for calm among supporters. "This is the saddest day (for) Malaysia as this shows the judiciary is not independent. Our target now is to win back Perak. NONE“The people want to see that the judiciary has the independence to make its own decisions. But what you heard just now, shows that the judiciary is still not independent from the influence of others.” The crisis in Perak cannot be ended by this decision, he said, but by giving the right to the people to vote for their representatives. The decision, he further said, has completely neglected or set aside all constitutional principles.

“.... We have had precedent from genuine judges. Those have been completely neglected and set aside. This is the prerogative of the judges. But this is the saddest moment where democracy has been torn to pieces, the right of the people has been neglected.
“An illegitimate government which did not follow the rules of parliamentary democracy has been supported by the judicial institution. This is sad as it would lead to other consequences. Nizar also pledged that Pakatan's other pending court cases - such as the one filed by former speaker V Sivakumar against the three defectors - will be pursued.
[Source : Mkini]
The Federal Court today may have denied Datuk Seri Nizar Jamaluddin his Perak mentri besar’s post but its just-released collective written judgment is apparently riddled with contradictions, a retired judge said.
Nizar, 53, who had previously been declared the rightful mentri besar, lost the job when a three-man panel of Court of Appeal judges reversed the High Court’s decision last May 22.
The Pasir Panjang assemblyman then took it to the Federal Court and asked the Bench to address three issues based on the Perak Constitution, which, in plain English, translates to:
1. Whether the MB’s post is vacant when he did not resign; none of his peers had passed a vote of no confidence against him; he had asked the Sultan to dissolve the state assembly and start the process for fresh elections and was rejected.
2. Who decides that he has lost the confidence of the state assembly?
3. Who has the right to sack him if he refuses to resign?
The five apex court judges who replied were Tan Sri Alauddin Mohd Sheriff, Tan Sri Arifin Zakaria, Datuk Zulkefli Ahmad Makinuddin, Datuk Wira Ghazali Mohd Yusoff and Datuk Abdull Hamid Embong.
In declaring Datuk Seri Zambry Abd Kadir the rightful Perak MB, the coram summarised their reply, found at the end of 40-pages, as follows:
  • Yes. (To quote: “The answer to the first question will be in the affirmative;)
  • Yes. (“As for the second question, our answer is that under Article XVI(6) the question of confidence in the MB may be determined by means other than a vote of no-confidence in the LA;”)
  • Yes. (“As for the third question our answer is that if the MB refuses to tender the resignation of the Executive Council under Article XVI(6) the MB and the Executive Council members are deemed to have vacated their respective offices.”)

“On the face of it, it sounds like they are contradicting themselves, isn’t it?”, says Chan.
But a closer look at the full judgment, made available to reporters a few hours after the decision was pronounced in Putrajaya, showed several seemingly contradicting statements, prompting a former judge to question the soundness of the top court’s reasoning in one of the most critical cases to affect the highest law of the land — the constitution.
Datuk Chan Nyarn Hoi was puzzled at a certain section that had earlier been read out in open court by the third highest-ranking judge in the country, Chief Judge of Malaya Arifin.
“However, we would add that this is by no means the end of the matter, as it is always open to the appellant [Nizar] to bring a vote of no confidence against the respondent [Zambry] in the LA [Legislative Assembly] or make a representation to HRH [His Royal Highness the Sultan of Perak] at any time if he thinks that the respondent does not enjoy the support of the majority of the members of the LA,” it said.
To the retired Court of Appeal judge, more popularly known as NH Chan, that particular section “sounds strange”.
“On the face of it, it sounds like they are contradicting themselves, isn’t it?” the 74-year-old asked The Malaysian Insider over the phone.
“They say [Nizar] can take a vote of no confidence now, but why couldn’t they do it earlier?” he wondered.
“And if it’s really contradicting, then the whole judgment is rubbish,” he added.
Chan, who now lives in Ipoh, refrained from commenting further until he had read through the full written judgment.
[Source: The MalaysianInsider]


Stare Decisis is a hallowed principle in the jurisprudential canon. It simply means that you respect the legal precedent established in analogous cases in the past. NONEThe decision handed down today by the Federal Court in the case of whether Pakatan Rakyat's Mohammad Nizar Jamaluddin or Barisan Nasional's Zambry Abd Kadir is the rightful menteri besar of Perak ignored the established precedents. The precedents were set in the Stephen Kalong Ningkan case in Sarawak in 1966 and the Pairin Kitingan case in Sabah in 1985. In both cases, the incumbent chief minister, Sarawak's Ningkan in the first instance and Sabah's Pairin in the latter, were either removed by ruler's fiat or the appointment was challenged by a rival candidate for the post. The Ningkan case established as a legal principle that once appointed, a chief minister could only be removed by a vote of no-confidence in the legislative assembly. The judge's decision in the Pairin case upheld that principle. In the Nizar vs Zambry case, High Court judge Abdul Aziz Abdul Rahim ruled last May in favour of Nizar as the rightful MB but first the Court of Appeal and now the Federal Court countermanded him. Justice Abdul Aziz was respectful of the established precedent in the case. Doctrinal consistency is highly valued in jurisprudential theory. No unique facts In jurisprudential theory, established precedents can be overthrown only if unique facts enter the vortex of discursive imperatives in which a case is decided. There were no unique facts in the Nizar vs Zambry case. Three state assemblypersons belonging to Nizar's Pakatan Rakyat faction abruptly became independents, leaning towards support for the BN. Two of them were under indictment for corruption. In the circumstances, the motives of the duo for becoming BN leaning independents could not be said to be above cavil. The obvious resort, in conditions where there is an impasse in the legislative assembly brought on by legislators' changed allegiance, influenced by unusual factors, would have been to that final arbiter of a polity's distempers: the ballot box. But no, the Court of Appeal, last May, and now the Federal Court have decided to ignore the principle of stare decisis and make the notion of judicial precedent a piece of chaff, drifting on every wind of circumstance. It's the kind of reasoning that makes you think that the law is an ass.
[Source: Mkini]

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