by N H Chan
Before you go about judging the judges of the Court of Appeal on their five minute oral decision which they handed down on Friday, May 22, 2009, please bear in mind the wise words of the most liberal of American judges, judge Learned Hand who once wrote – The Spirit of Liberty, p 110:
… while it is proper that the people should find fault when the judges fail, it is only reasonable that they should recognise the difficulties. … Let them be severely brought to book, when they go wrong, but by those who will take the trouble to understand.
I shall now try to help you take the trouble to understand the oral findings of the Court of Appeal. First of all we will look at what the New Straits Times, Saturday. May 23, 2009 has to say:
PUTRAJAYA. … In allowing the appeal by Datuk Seri Zambry Abdul Kadir that he was constitutionally appointed as menteri besar by the sultan on Feb 6, Court of Appeal judge Datuk Md Raus Sharif said there was no clear provision in the state Constitution that a vote of no confidence against Nizar must be taken in the assembly.
Raus, who sat with Datuk Zainun Ali and Datuk Ahmad Maarop to hear submissions on Thursday, said Nizar had on February 4 made a request to the sultan to dissolve the assembly under Article 16 (6) because he no longer enjoyed the support of the majority assemblymen.
He said Nizar had no choice but to resign once the ruler declined to dissolve the assembly.
“There is no mandatory or express requirement in the Perak Constitution for a vote of no confidence to be taken in the legislative assembly.” Raus said in a five-minute oral ruling before a packed court room.
That was all. That is the gravamen of the five minute decision. What the Court of Appeal has said above as reported in the New Straits Times had also been said by Mr Justice Abdul Aziz in the High Court in his well considered judgment – 78 pages on A4 paper. This is what the High Court judge said, at p 30:
It is not in dispute that His Royal Highness had exercised the royal prerogative in this case pursuant to Article XVI (2) (a) and (6) of the Perak’s State Constitution. However the applicant [Nizar] is not asking the Court to review His Royal Highness’ prerogative to appoint the respondent [Zambry] as MB Perak or His Royal Highness’ prerogative to withhold consent to dissolve the State Legislative Assembly. The applicant concedes that the two royal prerogatives are not subject to review and non justiciable. That is the reason, the applicant [Nizar] said, His Royal Highness was not made a party to the present disputes.
And at pp 36, 37 Abdul Aziz J also said:
Under Article XVI(2) of the Perak’s State Constitution His Royal Highness shall appoint as Menteri Besar a member of the State Legislative Assembly who in His Royal Highness’ judgment is likely to command the confidence of the majority of the members of the State Legislative Assembly. …
I never had any doubt that the exercise of the royal prerogative to appoint a Menteri Besar pursuant to Article XVI(2) Perak’s State Constitution is solely based on personal judgment of His Royal Highness and that His Royal Highness may resort to any means in order to satisfy himself and accordingly to form his judgment as to whom who is likely to command the confidence of the majority of the State Legislative Assembly that he can be appointed as the Menteri Besar to lead the Executive Council.
I also have no doubt that His Royal Highness has absolute discretion with regard to the appointment of a Menteri Besar and the withholding of consent to a request for the dissolution of the State Legislative Assembly. This is plain and obvious from the reading of Article XVIII (1) and (2) (a) and (b) of Perak’s State Constitution.
The High Court judge even agreed, at p 37:
… that if the Menteri Besar ceases to command the confidence of the majority of the members of the State Legislative Assembly, he shall tender the resignation of the Executive Council, …
So then, how could the Court of Appeal overrule the judgment of the High Court when the higher court substantially agrees with the judgment of the High Court? The newspaper report is not very clear on this point as we are still unaware of the reason for overruling the judgment of the High Court judge.
However, according to the report in the New Straits times, Raus JCA did say, “There is no mandatory or express requirement in the Perak Constitution for a vote of no confidence to be taken in the legislative assembly.” So what if there is no provision for a vote of no confidence in the Legislative Assembly. The High Court had found that Nizar is still the Mentri Besar. To overrule the decision of the High Court, the Court of Appeal must explain why the judge of the High Court was wrong in finding that Nizar is the Mentri Besar.
The newspaper had even suggested that it could be implied in the ruling of the Court of Appeal that the Ruler had sacked the incumbent Mentri Besar Nizar:
The unanimous Court of Appeal ruling yesterday seems to suggest that a head of state can sack the incumbent head of government once it was determined that the politician ceased to command the confidence of a majority of the elected representatives.
The newspaper is wrong. That was not the finding of the Court of Appeal. In any case the monarch has no power to dismiss a Mentri Besar – there is no provision for it in the Perak Constitution.
The trial judge Abdul Aziz J in his judgment has explained why he found that Nizar is still the Mentri Besar. This is how he puts it – see p 54 of his judgment:
It is true the request may be made only under two provisions of Perak’s State Constitution i.e. Article XVI(6) and Article XXXVI (1) and (2). But the circumstances under which the request can be made is unlimited. The request under Article XVI(6) is specific to a situation where the Menteri Besar ceases to command the confidence of the majority in the State Legislative Assembly; whereas under Article XXXVI (1) and (2), [the] situation is unlimited. It is up to the Menteri Besar to choose his time to make the request. However once a request is made under whichever of the two provisions, it is entirely up to His Royal Highness’ discretion whether to grant or [not to grant] the consent to dissolve the State Legislative Assembly.
Then at pp 56-58 the High Court judge comes to this conclusion:
In my view it is alright if His Highness takes upon himself to determine who commands the confidence of the majority in the State Legislative Assembly that he can appoint as the Menteri Besar. Such determination however is only good for the purpose of appointing a Menteri Besar pursuant to Article XVI(2)(a) Perak State Constitution. This is so because that provision speaks of ‘who in his judgment is likely to command the confidence of the majority’. The language use therein requires the exercise of a personal judgment on His Royal Highness.
But the same thing cannot be said with regard to Article XVI(6) in deciding whether the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly. In this case His Royal Highness, through his enquiries has judged that the respondent [Zambry] has the support of the majority. But that finding does not necessarily mean His Royal Highness can form an opinion that the applicant [Nizar] ceases to command the confidence of the majority of the members of the legislative assembly. One reason for this is that the expression ‘in his judgment’ is not used in Article XVI(6). … I am of the view that just because His Royal Highness had formed a judgment that the respondent [Zambry] is likely to command the confidence of the majority for the purpose of Article XVI(2)(a) to appoint the respondent [Zambry] as Menteri Besar it does not mean that His Royal Highness’ opinion or judgment is applicable in deciding that the applicant [Nizar] ceases to command the confidence of the majority of the members of the Legislative Assembly. In another word, one cannot say that because His Royal Highness has judged that the respondent [Zambry] is likely to command the confidence of the majority in the Legislative Assembly therefore the applicant [Nizar] ceases to command the confidence of the majority of the members of the Legislative Assembly. I would say that the personal opinion or judgment of His Royal Highness is irrelevant to the construction of Article XVI(6). The [other] reason is that Article XVI(5) Perak State Constitution states that the Executive Council shall be collectively responsible to the Legislative Assembly. Under Article XVI(2)(a) the Menteri Besar is appointed to preside over the Executive Council. Article XVI(6) speaks of “If the Menteri Besar ceases to command the confidence of the majority of the members of the legislative Assembly …”. Reading these three provisions in Article XVI Perak State Constitution it is logical and in fact Article XVI(6) requires it to be so, that it is the Legislative Assembly that determines whether it has confidence in the Menteri Besar as the Head of the Executive Council. The Legislative Assembly may make the determination through a vote of no confidence against the Menteri Besar. (The Emphasis is mine)
It seems to us ordinary folk that the Court of Appeal has missed the point. They decided that Zambry was properly appointed Mentri Besar under Article XVI(6). That is not correct – he could only be appointed under Article XVI(2)(a). Since there cannot be two Mentri Besar and Nizar the incumbent Mentri Besar has not resigned and, further, since the legislative assembly did not decide if he has ceased to command the confidence of the majority of the members of the assembly, Nizar, unquestionably, is still the Mentri Besar of Perak.
Nizar’s case was that Article XVI(6) speaks of “If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly”. The poser is who is to decide “If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly” under Article XVI(6)? Certainly not the Ruler because the phrase “in his judgment” – which is used in Article XVI(2)(a) – is not used in Article XVI(6). If it is not to be the Ruler then who is to decide “If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly”? The answer is in Article XVI(6) itself – only the Legislative Assembly itself could decide if the Mentri Besar ceases to command the confidence of the majority of the members of the Assembly.
Article XVI(6) clearly states that the Mentri Besar who no longer commands the confidence of the majority of the Legislative Assembly “shall tender the resignation of the Executive Council”. This has to be done “unless at his [the Mentri Besar’s] request His Royal Highness dissolves the Legislative Assembly. But Mentri Besar Nizar could not admit that he ceases to command the confidence of the majority of the members of the Legislative Assembly because he would not know until a vote has been taken at the Assembly to determine so. Only the Assembly itself would know if a vote is taken to determine whether the Mentri Besar has lost the confidence of the majority of the members of the Assembly.
Now that you have understood the five-minute decision of the Court of Appeal as well as the well considered judgment of the trial judge, you should be able to severely bring to book the judges of this Court of Appeal since you are now aware if they have done wrong.
Before I sign off, I wish to say a few nice words to the High Court judge. Mr Justice Abul Aziz Abdul Rahim is a fantastic judge. The judgment, especially the piece on the interpretation of Article XVI(6), is so good that it has persuaded me to change my mind on my view of Article XVI(6). If you remember my first article, I have expressed an opinion on Article XVI(6). Now I know I was wrong – and I have to thank Abdul Aziz J for showing me the way.
#1 by taiking on Wednesday, 27 May 2009 - 10:03 am
The way I look at it, the whole thing boils down to the no-confidence thingy. If a mb loses confidence of the majority in the assembly he must go. That is straightforward and simple logic. But life is seldom simple or straightforward.
“No confidence” is an event and as an event it must actually take place before the “he must go” consequence can follow. And how on earth will that “no-confidence” event happen? Throw a vote in the assembly of course. That should be quite simple and the result would be clear beyond doubt.
But can it be implied? Now this is tricky. Very tricky indeed. First if all, whether or not the event has taken place is a question of fact. And so can one point to surrounding events and developments and draw a conclusion that the “no-confidence” event (whilst not quite having occured by way of no-confidence vote) could somehow be regarded as a foregone thing and therefore as having by implication taken place?
In law such implications are often resorted to for the purpose of covering up gaps in evidence. But the mb provision in the perak constitution does not permit such “filling in the gaps” exercise – actually undesirable. This is because the “he must go” consequence is extremely grave for when the mb goes the whole state exco must follow him. That consequence would affect the state government to its fundamental core and such a grave consequence certainly cannot depend on surrounding events and developments.
Furthermore, gap filling efforts will never produce certainty in the end result. Surrounding events and developments are bound to be read differently by different people. And which events or developments and which bits of which events or developments are relevant is a question which would attract infinitely differing answers. Hence, controversies would ignite and hell could then break loose in which event there will be no end to the ignited controversies. And in politics the consequence will not be confined to the parties who are directly involve. The consequence will impact the whole state and her people.
For these reasons the “no confidence” event must an event certain. It is extremely undesirable (in fact outright dangerous) to leave it to implication based on surrounding events and developments. Besides, throwing a no-confidence vote in the assembly is a dead easy exercise and will give that event a certainty which no one can question. That should be the only and proper and responsible option to pursue. After all if umno is confident of its majority support then take that responsible step! But oops! They missed the step and landed on quicksand.
Assuming that the surrounding events and developments are crystal clear and beyond arguments then the “he must go” consequence will flow. Simple enough as a consequence but actually not so simple to execute. The flow is controlled by law and the law gave the mb who has lost majority support two options: 1) ask the sultan to dissolve the assembly which means re-election; or 2) resign together with the entire exco. There are no third or fourth etc options. Just two and both options are worded entirely for the sitting mb to pick. The law gave the sultan no role to play in determining the manner in which the sitting mb “must go”. The sultan’s only role is to dissolve the assembly if that was the mb’s choice. And the law gave the sultan no power to reject his call for resolution or to dismiss him as mb or to deem that the mb had resigned. Nizar was not dismissed and he had not resigned and there was no no-confidence vote against him. He is still remains as the lawful mb.
The court of appeal in effect gave unwritten legal powers to the sultan to dismiss the mb or worse to deem that the mb had resigned on the basis that surrounding circumstances and events suggest that he had lost majority support. The court of appeal is writing into the perak constitution words that are not there – an act which only the perak legislative assembly can do by a special majority (not simple majority). The court of appeal by the same stroke, injected a large dose of undesirable uncertainties into the perak constitution for now the “no confidence” event can be implied from surrounding events and developments. Now a sitting mb will never know for sure whether he commands popular support.
Judges the world over have a particular dislike for uncertainties in the law. Such law causes confusion, will inflict injustice, and in the end will not be respected and adhered to. When respect for the law is gone chaos will reign. Its no wonder why our police and the umno government is acting above the laws. For this we have to thank najib, umno and our judges.
#2 by HJ Angus on Wednesday, 27 May 2009 - 10:03 am
This is a very good article to educate Malaysians on why we must tighten the rules to appoint judges.
Barack Obama gave a very good speech on what qualities he looked for when he appointed Sotomayer to the Supreme Court but here in Bolehland it all depends on the PM’s whims.
With a tainted Judiciary and the police who have become more like BN stooges, we are in for more problems ahead.
http://malaysiawatch4.blogspot.com/2009/05/malaysiakini-and-dark-forces-in.html
#3 by wanderer on Wednesday, 27 May 2009 - 10:11 am
The laws of the jungle was in full action…where Might is Right!
Mana ada Court of Appeal…more like a Kangaroo Court…
#4 by madguyho on Wednesday, 27 May 2009 - 10:53 am
What Mr. N H Chan wrote is according to the laws, rules and regulations. Those volume of laws books are no better then old newspaper if people don’t respect and function as according to it. Just look at how they dragged and dumped Sivakumar, do we have laws?
Someone mentioned the laws of the jungle……as the phrase goes, even the jungle have laws. Do you think we have laws?
#5 by monsterball on Wednesday, 27 May 2009 - 2:28 pm
What’s wrong with hunger strikes……chengho?
Only politicians have feeling for the people and feel they have failed the people….punished themselves with hunger strikes.
Go read the life story of Mahatma Gandhi.
You get police permission…thousands will go on hunger strikes..the sight you have never seen before.
Can get permit? If not…shut up!!
Now few do that…close doors…also got arrested.
Why so?
So don’t make fun on hunger strikes…if you do not understand.
#6 by ekin on Wednesday, 27 May 2009 - 2:34 pm
Mr Pathetic Laksamana(Disguised) Cheng Ho AKA one of 3 stooges,
“u hurt my feeling i m gonna go for hunger strike …i can last for 7 days without food and ice tea …..NIzar and gang still on hunger strike or not…”
If you had not been so foolish to post nonsense-s, we wouldn’t even have the arrows on you. You should have consider the outcome of your thinking resulted this earlier. I suggest you better be Fasting to purge your body, soul and spirit from evil thoughts against Rakyat. Whether Nizar and the rest of hunger strike supporters are still in it or not, there’s no dispute nor question. They are the heroes and heroins of Democracy! They do it for your sakes too even though you’re against them! Feel that passion, that love shown, and be appreciable rather than crying like a baby!
#7 by Winston on Wednesday, 27 May 2009 - 4:06 pm
Ladies & Gentlemen,
Judging from the postings in this blog, it seems that many Malaysians don’t realise that the BN has five decades of twisting the laws for their benefit!
So, now that the BN is in a bind, it’s not surprising that it’ll somehow dredge up laws that will still be beneficial to them!
It’s you, Malaysians, who give them this power to lord it over you!
You realised your mistakes now but it may be TOO LATE!
#8 by ekin on Wednesday, 27 May 2009 - 4:44 pm
I sought to differ again. Nothing is indispensable in this world. It is never too late to change. Though to change is not easy but if you solve the root cause, then you can change. Let time take its course…
#9 by alaneth on Wednesday, 27 May 2009 - 9:35 pm
Hey, Look at The Star’s online poll at thestar.com.my.
“Should Nizar appeal the Court of Appeal decision that declared Zambry the Perak mentri besar?”
Guess what – 84% polled “Yes He Should”!
If only we could translate this 84% figure into votes in the next GE…
#10 by ekin on Thursday, 28 May 2009 - 3:29 am
Yes Mr Alaneth,
I think he must. 84% figure means he is widely supported. I can tell you the 13GE won’t be less than that figure HE HE HE
#11 by Jeffrey on Thursday, 28 May 2009 - 8:28 am
High Court Judge Abdul Aziz J, whom NH Chan agrees, read Article XVI(6) of Perak State constitution and concludes that Ruler/Sultan has royal prerogative to appoint a Menteri Besar based on personal judgment but when it comes to dismissing Menteri Besar His Royal Highness has no personal judgment (as in interviewing and pursuing statutory declarations of assemblymen who have switched sides) on the matter and has to rely on majority vote in the Legislative Assembly!
It is a legal speak and not in accord with commonsense. It is not in accord with commonsense because applying that reasoning would lead logically to an absurd result.
To illustrate:
If what Abdul Aziz J ruled – whom NH Chan agrees – is true, it would simply imply :
1. In absence of vote of no confidence in legislative assembly, the Sultan/Ruler has no basis – HRH cannot use his personal judgment here – to dismiss Nizar as current Menteri Besar; BUT……
2. based on personal judgment, HRH could use his personal judgment to appoint Zambry as MB…
which could lead to the absurd result of Perak having two Menteri Besar (since Nizar was unconstitutionally dismissed and Zambry was constitutionally appointed by Ruler/Sultan at the same time)! :)
#12 by Jeffrey on Thursday, 28 May 2009 - 9:04 am
//….It is up to the Menteri Besar to choose his time to make the request [in relation to requesting for dissolution of Legislative Assembly]. However once a request is made under whichever of the two provisions, it is entirely up to His Royal Highness’ discretion whether to grant or [not to grant] the consent to dissolve the State Legislative Assembly…//
This is a fatal concession by High Court Judge whom regretably N H Chan also agrees….
This does not help Pakatan Rakyat’s Cause.
There is no point in saying Ruler cannot appoint new MB (Zambry) and at same time concedes that existing MB (Nizar) cannot as of right request and obtain from Ruler a dissolution of the Perak State Legislative Assembly to pave the way for fresh mandate of all Perakians.
If the existing MB cannot re-test mandate of people by requesting for dissolution of legislative assembly that Ruler cannot refuse – and here High Court judge Abdul Aziz takes position that the Ruler can refuse – it means all the other side (BN) has to do is to keep pressure up by inducing/buying cross overs in all the states controlled by PR and once the numbers on BN side due to crossovers become majority :-
1. BN can move vote of no confidence on existing PR MB in any PR controlled state which, with help of kataks will carry; and
2. at same time existing PR MB has no right to avert a threatening scenario in 1. by calling for dissolution of legislative assembly for re-testing the people/voters fresh mandate (since Ruler could have personal prerogative to say “no” to MB’s request for dissolution).
In a constitutional monarchy, the better view is that when an MB make a request for dissolution of state assembly, the Ruler cannot say “no”.
Imagine at federal/parliamentary level the PM exercises his prerogative to dissolve parliament for fresh elections (before 5 year term up) and Yang Pertuan Agong (according to Abdul Aziz J’s reasoning) can say “no”!
For the High Court to concede that Ruler could refuse existing MB’s request for dissolution of legislative assembly in scenario of crossovers of PR assemblymen to BN is to spell the end of PR’s control in all PR constrolled legislative assemblies if BN with greater financial resources embark on relentless inducement of PR assemblymen to crossover……
I am surprised that senior judge like NH Chan can agree to such a major concession by High Court Judge, Abdul Aziz J contrary to the concept of supremacy of people’s mandate.
Concept of supremacy of people’s mandate means incumbent can always go back to people for mandate without being thwarted. This is the consistent stand of YB Lim Kit Siang – return to Perakians for mandate. This means an existing MB like Nizar (or PM at parliamentary level) always have to right to call on this mandate by procuring dissolution of legislative assembly and state wide elections – of which no Ruler under Constitutional Monarchy system (as opposed to absolute Monarchy) could justifiably refuse when such a request is made!
According to High court judge/NH Chan, yes Ruler could refuse…
Like that, how to resolve every case of impasse precipitated by crossovers contrary to people’s democratic will?
#13 by KennyGan on Thursday, 28 May 2009 - 9:09 am
Jeffrey, the only illogicality is due to your lack of common sense. The sultan’s prerogative to use his judgement to appoint a MB only applies if the MB post is vacant. If there is an incumbent MB, obviously the sultan cannot appoint another MB until the post is vacant by resignation or removal by the Assembly.
#14 by Jeffrey on Thursday, 28 May 2009 - 9:42 am
“The sultan’s prerogative to use his judgement to appoint a MB only applies if the MB post is vacant…..”
Where is this stated in Perak State Constitution?
KennyGan would say its common sense – and it is so – that if there is an incumbent MB, obviously the sultan cannot appoint another MB until the post is vacant by resignation or removal by the Assembly…
However one can’t nail the problem (as what High Court judge tries to do) by making 2 parallel propositions that when strictly applied in juxtaposition lead to absurd result (2 MBs) unless one reads further into them and implies what is commonsensical….that if an incumbent MB is not legally/properly removed by vote of no confidence how could the next question of new MB appointed by Ruler’s judgment arise?
But thats the point, since when is implying common sense to what is not express being fashionable?
In the Court of Appeal, they already said “there is no mandatory or express requirement in the Perak Constitution for a vote of no confidence to be taken in the legislative assembly” – so what is not stated there means it is not there, it cannot be implied….
Talking about implying, there’s alot one can imply in absence of express wordings.
Eg High court interprets that it is implied Ruler can refuse incumbent MB’s request for dissolution of state assembly; I am entitled to imply that Ruler cannot.
Court of Appeal reads constitution as implying Ruler can use personal discretion to appoint MB, and the other side says no, one cannot because there is need for vote of no confidence. (Either way it is not expressly stated in Perak constitution).
When it comes to implying everyone has his own brand of what is commonsensical to be implied.
#15 by Jeffrey on Thursday, 28 May 2009 - 11:07 am
If one proceeds on argument that Ruler has an unqualified prerogative to appoint MB based on HRH personal judgment of command of majority but not the prerogative to dismiss an existing MB based on HRH personal judgment of loss of command of majority, one runs into problems: now what is the rational reason or differentia why his determination of command of majority is so relevant and crucial for first appointment of a MB and totally irrelevant where it concerns a appointment by royal prerogative of a subsequent second MB (based on HRH personal judgment that latter is now commanding majority instead), which if carried out, supersedes and automatically nullifies the first appointment?
However no one is saying this. High Court Judgee/NH Chan are talking of who commands majority of legislative assembly to be eligible for MB post – and that when it comes to appointment of MB, it has to be Ruler’s judgment (prerogative), but when it comes to dismissal of that position it has to be by majority vote of Legislative Assembly!
Court of Appeal judge Datuk Md Raus Sharif already said there was no clear provision in the state Constitution that a vote of no confidence against Nizar must be taken in the assembly to determine the loss of majority!
So on wjhat basis one says Court of Appeal is wrong?
Well one can argue MB can only be dismissed – by the people. It is the mandate thing.
If so, there is another problem, one wonders why first appointment of MB is based on royal prerogative and not dictates of people’s mandate: why people mandate is important at end but not beginning of MB appointment?
Even if so (people’s mandate is important at tail end of appointment) then dismissal cannot be determined by majority vote of assemblymen which has swung because of kataks – it has to be deterimined by dissolution of assembly and fresh state elections. If so one has also to maintain MB has right to dissolve legislative assembly which cannot be denied by Ruler, something that High Court judge N H Chan said otherwise….
Just like KennyGan’s commonsensical argument is that it is ‘implied’ that incumbent MB’s post must first be vacant before next MB is considered for appointment by Ruler.
It can however be replied by Zambry that there is no need for dismissal , that it is equally “implied” that HRH’s exercise of royal prerogative to appoint second MB (Zambry) automatically renders the existing MB post of Nizar vacant and supersedes it by Zambry’s new appointment.
So where does all this “implying” of what is commonsensical get us?
The problem with common sense is firstly it is not that common and secondly the difficulty in getting consensus on which sense is ‘common’.
The problem with “implying” is that each side will imply to written text of Perak constitution what to it is common sense (read advantageous to its cause) but to the other is nonsense.
#16 by House Victim on Thursday, 28 May 2009 - 4:49 pm
I wish to give some feedback on Jeffrey comments.
1. Political System – Malaysia is a Constitution Monarchy system where the Ruling Party is elected by GE for Federal or State Level. Under the constitution, the head of Federal and States is the PM and CM respectively. The Sultan HRH is to consent or reject any nomination from the Ruling Party and finally \appoint\.
2. Therefore, any nomination of PM or CM has to come from the Ruling party elected by GE.
3. The Ruling party can always be challenged by a vote of Confidence to verify if they got the \majority\ support from the MP or Assembly persons.
4. Loosing the \majority\ in the Parliament or State Assembly would mean the \Ruling\ party can easily be crippled when come to voting of laws or any motions. Therefore, the best is to get a new election to seek new \decision\ from the voters on who should run the Government.
5. During such transition period before the next GE, the Ruling party is still responsible to run the Government and a Caretaker Government must be there before the next GE. (Reference http://malaysianjudges.blogspot.com/2009/02/does-sultan-azlan-shah-have-power-to.html) This a must procedures before the Parliament or Assembly be dissolved. I believe this is why the MB can take time to hand in his resignation and asked for the dissolve of the Legislative Assembly. And, also why HRH could reject the dissolve of the Assembly. The consequence of the latter will keep the Ruling party in power.
6. Once again, I hope someone can straighten up the basic concept and procedures relating the GE-Appointment of MB-the Power of HRH. Any law or constitution should be read for the execution of such concept and procedures with no violation of the principle! Along such \common sense\ can be easily applied.
7. FROM THE ABOVE, BN cannot nominate anyone unless they are elected as the Ruling Party. Until then, HRH is in no position to consent or reject a Nominee from BN ending with an \Appointment\ to a \New\ MB.
8. PKR had not been proven of loss of \majority\ and had not taken the procedure to resign. So their status of being a Ruling party remains, especially when HRH had rejected the dissolve of the Assembly.
#17 by KennyGan on Thursday, 28 May 2009 - 5:06 pm
“……(based on HRH personal judgment that latter is now commanding majority instead), which if carried out, supersedes and automatically nullifies the first appointment?” – Jeffrey
This is where you go on a frolic of your own and assumes what the constitution does not provide for. The constitution clearly states that the MB does not hold office at the sultan’s pleasure; in other words the sultan has no power to dismiss the MB. This cannot be sidestepped by appointing a second MB when the MB still legally hold office or that would make an ass of the constitution.
You seem to be confused with the power to appoint an MB and the right to exercise that power. The two are not synonymous. Clearly the right to exercise the power to appoint an MB only applies if the MB post is vacant. If common sense cannot be used on such a basic point, then we end up like a dog chasing its tail like your arguments.
#18 by Jeffrey on Thursday, 28 May 2009 - 7:18 pm
To House Victim Based on your points 4, 7 & 8 posted by you Today at 16: 49.41, which I can agree, wouldn’t it be correct to say that even if PR as ruling state govt had lost majority in Perak legislative assembly (as evinced by vote of no confidence initiated by BN assemblymen carried) a care taker govt has to be formed to take care of interim affairs pending dissolution of Perak legislative Assembly to pave way for fresh state elections (which means that even if Nizar refuses to opt for resignation course but has requested for the other option of dissolution of legislative assembly, HRH Ruler being constitutional monarch has no constitutional power to reject such request? Much more will this ought to be the case in the absence of vote of no confidence prior to Nizar’s request?
#19 by House Victim on Friday, 29 May 2009 - 12:47 am
To Jeffrey,
In my personal opinion,
1. A Caretaker has to be formed before dissolving the Assembly. So, I believe the MB should not resign before a Caretaker being formed. And, I believe the Caretaker has a limit validity. Therefore, any dispute during the GE, the judiciary system has to rush to settle. Such as on verification of the voting, etc.. Therefore, the preparation of the GE is also a key factor to dissolve the Assembly. So, for last GE, PM has the choice of fixing the date!!
2. If PM do not have to resign before the outcome of the Federal GE, I believe same applies to MB until the outcome of the State GE. A Government needs an authorized signatory for the daily running. I assume this is the basic. Therefore, Nizar did not resign (isn’t it?) but asking HRH for the permission to dissolve the Assembly. So, was Nizar allowed or advised to form the Caretaker and does he considered if a GE can be properly done within the validity of a Caretaker should be he main concern before asking for the dissolve of the Assembly. I believe HRH knows well that the Government cannot go with a MB during any period.
3. I believe HRH has the Rights to reject the dissolve of the Assembly. The question will be if HRH wants a cripple Government if the “majority” is not there. Or, he believe it is being “premature” such as a Caretaker not being formed or a proper election is not readily prepared.
4. The funny thing (sorry I have to say so) are
a) People as well as the Assembly are misled by the “frogging” that BN got the “majority” as such no “vote of no confidence” is necessary to vote out the existing Government (the Party).
b) People ignored that the power of nominating a MB come only from a Ruling party elected by Voters. So, BN in the mean time has no status to nominated. And, so HRH is not be in the position to consent or reject any nomination from BN.
5. So,
a) nomination from BN void
b) The consent to “appoint” a new MB by HRH void!!
c) PKR is still the legal Ruling Party and so is Nizar the legal MB.
IF THE JUDICIARY SYSTEM WORKS, INCLUDING IF MEMBERS OF THE BAR REALLY CARES (AS IN MOST COUNTRIES), THIS TYPE OF EXPLANATION OR UNDERSTANDING SHOULD ALREADY BE ON MOST OF THE NEWSPAPER OR MEDIA (IF THEY ARE INDEPENDENT!!)
The situation is similar to what happened in a Condo in Wangsa Baiduri where the Council members were elected with voting by non-registered proprietors with non-registered proprietors being elected during the First AGM. By law, the consecutive AGM are void.
BUT, THIS IS MALAYSIA!! SO, EVEN A STATE ASSEMBLY IS IN SUCH A MESS!!
Hope Nizar and PKR can work into this direction! But, where can we find FAIR & INDEPENDENCE JUDGES??
I hope I have answered your Questions!
#20 by House Victim on Friday, 29 May 2009 - 12:53 am
Correction:
I believe HRH knows well that the Government cannot go withOUT a MB during any period.
#21 by Jeffrey on Friday, 29 May 2009 - 5:41 am
House Victim
Thanks.
1. What you said –
“……People ignore that the power of nominating a MB come only from a Ruling party ELECTED BY VOTERS. (In this case has to be PR Nizar’s Govt) …. BN in the mean time has no status to nominate. And, so HRH is not being the position to consent or reject any nomination from BN. So….any nomination from is void….”
makes sense in that it is consistent with principle of supremacy of voters’ mandate.
2. What I am not convinced is that constitutional Ruler has a right to reject an incumbent MB’s request for dissolution of Assembly when that MB feels that he lost command of majority or if a vote of no confidence has already been passed. I believe incumbent having lost majority in assembly is constitutionally entitled to only 2 options – resign or request a dissolution and face a state wide general elections. When incumbent MB exercises 2nd option, Ruler cannot deny him that option but MUST dissolve Parliament (though it is HRH’s right to appoint Zambry as head of care taker government to run affairs until the state wide elections to canvass afresh rakyat’s mandate).
3. I am fortified in that view if what you said in 1. holds correct : that there is NO WAY the opposition side (ie BN in Perak Assembly) [with majority of assemblymen due to frogging BUT in absence of by- elections of frogs without that evidence of these majority of its assemblymen representing majority of people mandate] can nominate an MB for HRH to approve. If the Opposition claiming majority of asdsemblymen due to crossovers cannot nominate, HRH cannot appoint MB, then incumbent request for dissolution of assembly for fresh elections must be entertained!
4. One of thcommonwealth precedentsfor this is in Australia – Labor Party’s Gough Whitlam lost majority at Senate level in 1975, Malcom Fraser (from opposition bench) was immediately sworn in as caretaker (as distinct from permanent PM on condition that he give the Governor-General immediate advice to dissolve both Houses …
5. This means BN has still a way out by saying Zambry is a caretaker MB to administer after dissolution until Perak state wide election. BN/Najib may do it only if, quid pro quo, BN could extract some counter concessions from PR from other arenas of political battle or at the very least, for face saving purposes, the BN be “seen” to seize initiative of proposing a way out of the constitutional impasse in accord with rakyat’s wishes.
#22 by Jeffrey on Friday, 29 May 2009 - 6:44 am
That leaves the other question open – supposing when 4 frogs left PR, there were by-elections in which they contested under BN banner, and won and returned to Perak legislative assembly giving BN a majority supposedly backed by peoples ‘mandate’ as evinced by the by-election results, can the BN though in opposition benches in Perak legislative Assembly then (in these different circumstances) nominate a MB for Ruler to appoint?
In such circumstances (even after the 4 by elections results that give BN majority in legislative assembly) can PR MB go to to Sultan and request for dissolution of legislative assembly in hope that a state wide elections PR can return with a wider majority by which it is argued that the Sultan also cannot refuse to dissolve the Assembly??
If one follows convention the privilege to precipitate fresh elections seems to be vested in incumbent, even one defeated by no confidence vote.
In Canada (recently in 2006) Opposition (the Conservatives supported by the other two opposition parties -the NDP and Bloc Québécois – ) introduced and won a motion of non confidence against the Liberal Paul Marti’sn government. The motion was passed on November 28 by a count of 171–133, defeating the government, after which the Governor General issued the election writs for a general federal election to be held on January 23, 2006 after 56 day campaigning. In the end, the Conservatives won a plurality of support and seats, finishing 31 seats short of a majority but could form govt due to other parties support. Liberal Paul Martin conceded defeat.
#23 by House Victim on Friday, 29 May 2009 - 9:46 am
To Jeffrey,
Thanks your illustration with the Canadian example.
1. Definition of Majority varies in different procedures.
a) Majority to give the status of a Ruling party does not necessary mean they have to be bigger than a Majority for voting. As in the case of the Federal Government where the Majority for Voting is 2/3 and they are not. By saying so, the FROGGING,after an election, CANNOT change the Status of a Ruling party.
2. The request for dissolve of Assembly lies with the Ruling party. So, once the Ruling party is elected, via GE, the frogging SHOULD NOT provide the Opposition the Rights to ask Sultan to dissolve the Assembly.
3. As mentioned last, Loosing of majority vote does not automatically means the Ruling Party has to step down. But, as explained earlier, it will mean that the Ruling Government can easily be crippled by the Opposition, IF the Assemblyman or MP are Party orientated that more independent towards be best for their District or the country.The \No confidence\ vote is in fact \a test\ to see if similar Majority will also came up during a voting. Therefore, even when Majority of Party arrives, say by \frogging\, a cast of no confidence vote is still necessary. After that, the Ruling Party should really see if they should dissolve the Assembly to seek the \Opinion\ of the Voters via a GE.
4. Getting Majority by coalition of Parties is general in many countries, therefore it arrived to BN and PKR as of today.
In my opinion, the setting of 2/3 as majority in the Federal Government is not a FAIR practice!! Especially when MP are party orientated than performing their Duties – the BASIS problem with Malaysian Politicians and ….!!
#24 by Jeffrey on Friday, 29 May 2009 - 10:17 am
As far as I am aware there is no setting of 2/3 as majority in context of our discussion. Just simple more than 50%. 2/3 majority only required for certain significant constitutional amendments.
#25 by House Victim on Friday, 29 May 2009 - 9:36 pm
Jeffrey ,
Thanks your input.
http://www.bernama.com/bernama/v3/news_lite.php?id=319027
1. 2/3 is for voting in Parliament on Federal Constitution. For Malaysia to reform properly, the reform of Federal Cinstitution is a basic step and so are others Laws (at 1/2 majority?)to open upon transparency, accountability, Human Rights and monitoring, etc for the reform of administration. Do we find 2/3 majority in other developed couintries?
2. At State level, it is 1/2 even for State Constitution.
3. When Ruling Party for Federal Government required 1/2 as majority. Why should it then requires 2/3 to make or amend Constitution which is also for specifying People’s Rights?