Thursday, May 21, 2009

Why no Federal Court written judgment on Perak

by N.H. Chan

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MAY 19 - Do you know why the Federal Court is not giving a written judgment in the Perak debacle?

The answer can be simply put. It is because Article 72 (1) of the Federal Constitution is written in unambiguous language which even a child can understand.

As I have said before in an earlier article that the words, “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”, mean what they say.

Nothing can be plainer than that. No one in his right senses would try to interpret the obvious meaning of the words in Article 72, unless he wants to say the words mean something else. But the Federal Court was not prepared to do that. And the reason is because they do not want to be known as Humpty Dumpty judges.

Remember Humpty Dumpty in Lewis Carrol’s, “Through the looking Glass?”:

“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”

So the judges of the Federal Court did the unthinkable. They blatantly refused to apply the constitutional provision as it stands. They ignored it altogether.

But by so doing they have committed the cardinal sin of not administering justice according to law. It is the duty of every judge, indeed it is his only function, to administer justice according to law. And the law, in this context, is Article 72 (1) of the Federal Constitution which is the supreme law of the land.

Said Lord Denning, What Next in the Law, p 319:

“Parliament is supreme. Every law enacted by Parliament must be obeyed to the letter. No matter how unreasonable or unjust it may be, nevertheless, the judges have no option. They must apply the statute as it stands.”

Since the judges of the Federal Court, especially the infamous five, have refused to apply Article 72 (1) as it stands, they have, as a result, impaled themselves on the horns of their own dilemma.

They have, so to speak, placed themselves between the devil and the deep blue sea. Either way their position is untenable. By refusing to apply Article 72(1) of the Federal Constitution as it stands they would be guilty of a misuse of power.

As put by Lord Denning, ibid, p 380:

“May not the judges themselves sometimes abuse or misuse their power? It is their duty to administer and apply the law of the land. If they should divert it or depart from it and do so knowingly, they themselves would be guilty of a misuse of power.

And, in this country, this could be a ground for the judges to be removed from office. This is what section 2 of the Judges’ Code of Ethics 1994 says:

2. (1) This Code of Ethics shall apply throughout the period of his service.

(2) The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.

And section 3 (1)(d) says:

3. (1) A judge shall not -

(d) conduct himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto;

Judging by the unfair treatment of Nizar in his encounter with the Federal Court, public opinion has no doubt that the judges of the Federal Court has brought discredit to the Judiciary. The words of section 3(1)(d) are so clear and easy to understand that we do not need any court of law to explain it to us ordinary folk. We know what the words mean.

By not administering and applying the law, which in this case is the supreme law, of the land as it stands the errant judges have brought discredit to the judiciary – a ground for their removal from office.

And if the Government of the day failed to listen to the voice of the people then they have placed themselves in jeopardy of losing the next general election or any by-election or any State election in the future.

And finally, what about Ramly JCA the judge who had acted with indecent haste when he granted a stay to Zambry of the well-considered judgment of Abdul Aziz J.

Zambry was appealing against the High Court judge’s declaratory order in favour of Nizar. Like the judges of the Federal Court, he has not given any reason for his decision.

Ramly JCA granted the stay of the declaration which Nizar had obtained against Zambry. The judge was unable to explain why he granted the stay. As any lawyer will tell you it is unusual to stay a declaratory order. If such a stay is to be granted, there are legal arguments to be considered from both sides and the judge will have to say why he prefers the argument of one side as against the other.

The people’s perception of him as an unfair judge is the same as that of the errant judges of the Federal Court. Ramly JCA is in no better position than his seniors in the Federal Court.

* N H Chan is a retired judge who last sat in the Court of Appeals.

Saturday, May 16, 2009

Najib and Khairy’s unconvincing Perak script

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KUALA LUMPUR, May 15 — What do Datuk Seri Najib Tun Razak and Khairy Jamaluddin have in common?

Well apart from sharing an image problem in pockets across the country, they both believe that if you stick to a porous script and repeat it often enough, you still can turn over doubters.

This is clear from the justification both of them used in defence of the power grab in Perak. Decrying the double standards being employed by the Opposition and the alternative media, they noted that it was Datuk Seri Anwar Ibrahim who started the cross over craze by predicting a mass exodus from the Barisan Nasional and the collapse of the Federal Government on September 16.

All the BN did was execute better and bring that plan to fruition in Perak.

Speaking to reporters in Manado, Najib said: “Don’t forget that on September 16, who had wanted to steal 21 of our members of parliament. But when he failed, and we succeeded in Perak, we were then said to be undemocratic. We have been accused of seizing power.

“It was the Opposition who first tried to seize power but without success…we didn’t start it.’’

The Malaysian Insider

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Wednesday, May 13, 2009

What is at stake in the Perak crisis | Tengku Razaleigh’s official weblog

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The Perak crisis is a tragic comedy of errors and bad political judgment that reflects a failure of political leadership. As it continues to spin out of control, it damages our democratic system of governance. To all intents and purposes, one of our most prosperous and developed states has been reduced to a failed state, with a possibly illegal state government in place. This is a condition that can propagate outwards to the rest of the country.

I stated at the beginning of this crisis that by our Constitution, a change of government can only be brought about by democratic means, which is to say, through the ballot box or through a formal vote of confidence in the elected Legislative Assembly. These are the constitutionally mandated means by which the people decide on their government. Any other means of changing the government is unconstitutional and undemocratic, and subverts the basis upon which we are a civilised society.

We now have reason to fear the loss of the people’s confidence in the Constitution, in democracy and in our constitutional monarchy. Responsible political leadership must support rather than destroy the confidence of the people in these practices and institutions. In particular, powers reserved for the Legislative Assembly, which represents the sovereign will of the people, cannot be taken away under any circumstances by anyone. This foundational constitutional principle has been affirmed by the Court. We are all sworn to uphold it. Those who do not understand or accept this principle have no place in government.

Some issues can be solved by a court of law, but the Perak crisis is not one of them. The back and forth events of the past week demonstrate this fact abundantly. The Perak crisis cannot be solved by a decision of the Court because it is at heart a political rather than a constitutional problem. There is really no doubt about what the Constitution says. What is now unclear as a result of an ugly series of manoeuvres is whether Perak has a legitimate government, and there is only one way to resolve that issue. Perhaps our political leadership has not understood how important it is that the people’s voice must prevail, and be seen to prevail, in the choice of their government.

The only solution to the Perak crisis now is for the State Legislative Assembly to be dissolved and free and fair elections held. At this stage there is no other way to restore both public confidence and constitutional legality to the Perak state government, and by extension to our entire system of government. Our survival as a democratic and constitutional monarchy depends on our acceptance of the judgment of the people as expressed in free and fair elections. Any attempt to circumvent that judgment betrays the basic principles and values upon which our nation and incidentally, UMNO itself, stand. I appeal for wisdom and a broader concern for the wellbeing of our country.

Tengku Razaleigh Hamzah
Member of Parliament, Gua Musang

Monday, May 11, 2009

Nizar Is The Rightful Perak Menteri Besar (Update)

KUALA LUMPUR, May 11 (Bernama) -- Datuk Seri Mohammad Nizar Jamaluddin (right) was declared the rightful Perak Menteri Besar by the High Court here Monday.

With the decision, the question of who is the rightful Menteri Besar -- Nizar or Datuk Seri Dr Zambry Abdul Kadir -- which has plunged the state into political turmoil for more than 100 days, was finally answered.

High Court (Appellate and Special Powers Division) judge Datuk Abdul Aziz Abd Rahim ruled that Nizar did not vacate the office of Menteri Besar as he had not lost the majority confidence of the state legislative assembly.

In this case, said Abdul Aziz, there was no vote of no confidence issued against Nizar.

"How can one say that the applicant (Nizar) had lost his majority confidence under Article 16(6) of the Perak Constitution?"

"Based on the democratic practice, the issue of the loss of majority confidence should only be taken by a vote of no confidence against the applicant (Nizar), only by this manner can a Menteri Besar be removed," Abdul Aziz, said in his written judgment which was delivered at 2.30pm.

On Feb 13, Nizar, 52, filed an application to the court for a declaration that he is at all material times the rightful Menteri Besar of Perak.

Nizar, who was appointed Menteri Besar on March 17 last year after the opposition alliance won 31 seats at the 12th general elections, also sought a declaration that Zambry has no right to hold the office of Menteri Besar.

Abdul Aziz, in his judgment, said that a Menteri Besar could not be dismissed by the Sultan of Perak for the reason that he did not hold the office at the sultan's pleasure.

The dismissal of the Menteri Besar by the Sultan of Perak was never contemplated by Article 16(6) of the Perak Constitution, he added.

Abdul Aziz said that although the Sultan of Perak had the prerogative power in a Menteri Besar's appointment, a Menteri Besar, once appointed, was only answerable to the members elected in the state legislative assembly, and no one else.

In his judgment, Abdul Aziz, who is the third High Court judge hearing the case, disagreed with the submission of Attorney-General Abdul Gani Patail, as intervenor, that there were only two circumstances under which a Menteri Besar could request for the dissolution of the legislative assembly.

"The AG submitted that a Menteri Besar can only request for dissolution when the life term of the assembly comes to and end, that is under Article 36(2) and the other one is when he ceases to have command of the majority.

"I do not agree with this. Under Article 36 of the Perak Constitution, there are unlimited circumstances for the Menteri Besar to request for dissolution from the sultan, and it is up to the Menteri Besar to choose his time (to request for dissolution)," said Abdul Aziz.

The judge also disagreed with the AG and Dr Zambry's earlier submission that Nizar was deemed to have resigned from the office of Menteri Besar although he (Nizar) refused to do so.

"The AG and the respondent argued that the word 'shall resign' in Article 16(6) is mandatory that the Menteri Besar must resign.

"What if the Menteri Besar refuses to resign? However mandatory it is, the provision cannot be interpreted to mean that the Menteri Besar is deemed to resign," said Abdul Aziz who suggested that the article be amended to rectify the lacuna in Article 16(6) of the Perak Constitution.

On the issue of the affidavit by Perak State Legal Advisor Datuk Ahmad Kamal Md Shahid, Abdul Aziz ruled that he was not a neutral and impartial witness.

"It was his own admission that he was instructed by the respondent's counsel to affirm the affidavit. The word instructed is a very strong word.

"To me he is not a neutral or impartial witness, his testimony was coloured by the instruction that he received," said Abdul Aziz who preferred Nizar's version of what transpired during the audience with the Sultan of Perak at Istana Kinta on Feb 4.

Sunday, May 10, 2009

The Great DUN Perak Fiasco

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The Perak Putsch


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The Honourable Speaker! being dragged out of the Dewan

This is my personal opinion only.

It's May Day for Justice. I am not referring to the book written by Tun Salleh Abas. I am referring to the May 7 Putsch in Perak and the despicable behaviour of lawmakers. It was actually a Coup d'├ętat that will surely guarantee the plotters and perpetrators an ignominious place in history.

All the PR had to do was to give enough rope for the BN people to hang themselves. If it was a putsch, then like such similar events in history, the Munich Beer Hall Putsch and the Algiers Putsch, they will fail. This one in Perak will fail to endear UMNO and BN with the people.

I have been asked about the Perak DUN Perak episode this morning. My opinions are as relevant as the next fellow's. That means, we can't avoid being judgemental. Either we accept or we don't accept what has happened. The following is my personal opinion not necessarily reflecting that of the majority in UMNO.

If we are for it, we can find 1001 excuses to support it. If we are against it, we shall find a similar number of rebuttals. As for me, I will echo what a senior UMNO leader ( who is presently in the government) said in another situation. It has come to a stage where even we (ministers) feel ashamed to ask people to vote for us. This latest Perak Putsch just builds up the resentment of the people.

The general opinion from people on the street? It is not acceptable and further injures UMNO being the backbone of the BN government.

What happened in Perak is no longer amenable to legal niceties. The top legal eagles will have their day in court and if the judiciary is full of correct-correct-correct judges, the decision of the court of law will no longer be relevant. The court of public opinion and the sentence that will follow suit overwhelms everything- you and I, the lawyers and constitutional experts.

Perak will become the political quicksand that will drag Dato Najib in. Unless he gets out from the quicksand either by being pulled out or grabbing a pole as we see in the movies, Perak will prove to be his political waterloo. That will mean, the victory he secured over Anwar Ibrahim in persuading the 3 guys to quit PR, is a pyrrhic victory.

The only honourable thing to do is to remit the whole thing to the rakyat and that means calling for a fresh elections. It's better for UMNO to lose honourably than to win detestably. Unless of course we are deaf to the resentment building up among the rakyat, we will insist on staying. That resentment has reached a stage where what UMNO says is no longer believable and where lies dished out Pakatan and its high priest Anwar are believable. We lose more by our obstinacy.

The thing that people remember was the speaker being forcibly carried out. The photo (above) showing the poor speaker being dragged out will be forever etched in the mind of millions. It was high-handedness at its most foulest.

Let's discuss this a bit.

The House enjoys a stature of sanctity. It cannot be violated. Its proceedings and deliberations therein are unimpeachable. The lawmakers performing their duties in session enjoy immunity. The master of the House is the speaker. His person cannot be violated. Only he rules supreme. Not the clerk on duty. Not the secretary of the dewan. Not the sergeant-at-arms. These are servant status obliging what the Master instructs.

If it's accepted that what is said in the Dewan enjoys immunity, there is a stronger reason to accept the principle that the authorised persons in the dewan is inviolable.

Who were the people violating the speaker? Can they be in the dewan in the first place? Who ordered the physical ejection? Was it the deputy speaker? On what standing? The speaker cannot be deemed to be absent from proceedings. He has not been removed. In order to have him removed, there must be a motion and if the motion is allowed by the speaker, it is deliberated and finally a vote taken. Was there a motion and was it debated?

The prerogative of accepting or rejecting any motion lies with the speaker. If he disallows a particular motion, there is nothing anyone can do about it. Even written questions need to be submitted to the speaker- he sifts through those question and allows those he judges to be allowable.

Anwar Ibrahim and the PR parliamentarians have moved to table several motions but in the end, the speaker decides whether to allow them, to be heard. It is not the case of whether can allow or refuse to allow. Everything can be allowed provided the speaker allowed them. The speaker is the master of the house.

How do you remove a sitting speaker?

As a former ADUN, in my opinion, the speaker can be removed by presenting a question of privilege and declaring the office of speaker vacant. I think the removal of a sitting speaker cannot be done through the courts.

The next question we ask, what is a Question of Privilege? If what is practiced here is the same as those practised elsewhere in countries that follow the Westminster style of Democracy, then Questions of privilege shall be, first, those affecting the rights of the House collectively, its safety, dignity, and the integrity of its proceedings; and second, those affecting the rights, reputation, and conduct of Members, individually, in their representative capacity only.

A Question of Privilege also includes Questions relating to organization. Privileges of the House include questions relating to its organization and the title of its Members to their seats. Questions regarding these may be raised as questions of the privileges of the House even though the subject has been previously referred to committee. Such resolutions would include those to declare prima facie right to a seat, or to declare a vacancy.

A resolution electing a House officer is presented as a question of the privileges of the House. To me, a resolution declaring vacant the Office of the Speaker is a matter of high constitutional privilege. Privileges of the House, as distinguished from that of the individual Member, include questions relating to its constitutional prerogatives. The constitutional prerogatives of the House also include its function with respect to: impeachment and matters incidental thereto

In short, the rules of the Dewan provides for the removal of a seated Speaker, during session, for the purposes of preserving the dignity, and the integrity of its proceedings under the constitutional prerogative of its function with respect to impeachment. This can be done and MUST be done to reclaim the integrity of the Dewan and to hold this government accountable to the rule of law!

It is never accomplished by ordering people to drag out the speaker. The person/persons ordering must be referred to the committee of privileges. The Dewan is not a Balairaya where JKKK meetings are held. Otherwise, the ADUNs and all members therein, are just spruced up JKKK members.

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A Day of Infamy - Constitutional Rule and Law Down the Toilet Bowl - A Shameful Display of Arrogance and Lust for Power

By Matthias Chang
Friday, 08 May 2009 00:03

As expected and as warned by me, the events leading to the convening of the Perak State Assembly yesterday can only be described as disgraceful. It was a display of our elected representatives’ despicable conduct without precedent in our country’s history.


I pray and hope that in any future elections, all the elected representatives, without exception, who have disgraced our constitution today will be rejected by the electorate and cast into the rubbish heap of history.

May each and every one be condemned as hooligans, pariahs, men and women without a shred of honour!

The representatives of both sides of the political divide have by their actions destroyed what every citizen hold dear – constitutional rule and law.

It was a mockery of constitutional government and the country will pay a heavy price for this arrogant display of lust for power.

Perak DUN Speaker YB V. Sivakumar being dragged out of the Dewan by
plaincloth policemen and others state apparatus hooligans

If it is correct that police personnel entered the august chambers of the Perak State Assembly to forcefully remove the Speaker, it is a black day for democracy and constitutional rule and law.


It is clear that the leadership of the Barisan Nasional and Pakatan Rakyat has failed and humiliated the country when they planned and executed their diabolical schemes to retain political power.

I hoped that political maturity would prevail, but it is apparent that my confidence in our political leaders from both sides of the political divide has been misplaced.

If there is one lesson to be drawn from this ugly and disgraceful episode, it is that the political leaders are all power hungry and will resort to any means fair and foul to hang on to power.

They do not deserve our trust and support.

I therefore appeal to all Malaysians to send a clear message to the leaders of Barisan Nasional and Pakatan Rakyat that we reject their unbridled lust for power and their crass means to achieve it.

I call upon all Malaysians to consider and work towards the formation of a government led by leaders that have not been infected with the disease that have afflicted the Barisan Nasional and the Pakatan Rakyat.

Since March 2008, many Malaysians took the view that maybe with the Pakatan Rakyat having captured 5 state governments, there would be a viable “two party system” to ensure that constitutional government would be further enhanced and sustained in our unique multi-racial and multi-religious society.

On this day of infamy, our faith and hopes for such a future has been shattered.

We must find another way, to seek new paradigms that would better suit the demands and needs of our society and country.

I have no illusions that the road ahead will be arduous and full of pitfalls.

The last five years of misrule by the Badawi regime have been bad enough but to witness the ugly and shameful destruction of constitutional government yesterday by the Barisan Nasional and the Pakatan Rakyat is the last straw and my patience and tolerance have run out. These politicians have crossed the forbidden red line.

Enough is enough!

Starting today, we have about three years to bring about meaningful change.

Let us all come together and kick out all these power crazy politicians so that we can chart a new course for our country.

Where and how do we begin?

For a start, our first step, we must set up a network of concerned citizens.

It will take time and effort, but it can be done. Have faith in the collective power of the people. These corrupt rascals can and must be swept away.

Let this website be the focal point. Once you have registered, we will have a data bank from which we can harness our collective strength and launch our movement for a Malaysia:

Free of the Barisan Nasional power structures.

Free of the Pakatan Rakyat power structures.

Free of religious intolerance and bigotry.

Free of racism and chauvinism.

Free of extremism.

Free of corruption.

Free to realise our fullest potential.

If you share this simple vision, let us get together and work towards a better future for our children and our children’s children.

God bless you all.

Matthias Chang

This Appeal is solely my responsibility.

I do not represent or write on behalf of anyone but myself in making this call.

If you share my disgust and utter contempt for all those politicians, join me.

Wednesday, May 06, 2009

Dr M: BN takeover was hasty

Written by Chan Kok Leong
Wednesday, 06 May 2009 12:20

PUTRAJAYA: Barisan Nasional (BN) acted too hastily in Perak and monarchs cannot remove elected heads of government.

On the eve of the continuance of Perak’s constitutional crisis, former prime minister Tun Dr Mahathir Mohamad (pic. left) said: "Under the Federal Constitution, as far as I know, very clearly states that the monarch cannot remove the prime minister.

"He (the ruler) can refuse to appoint a prime minister but once appointed he cannot remove him until a vote of no confidence is taken."

The former prime minister was however careful not to draw parallels with the Perak case.

"I think the laws (federal and state) apply to the state as well but if Perak is different, I stand corrected," Mahathir told reporters at the Perdana Leadership Foundation today.

Mahathir also refused to speculate on the legality of Datuk Seri Dr Zambry Abdul Kadir’s appointment as menteri besar of Perak, saying that the matter now lies with the courts.

But the 83-year-old said that BN should have been more careful in the Perak takeover and that the coalition had acted "hastily".