By NHChan
Prologue
I shall start with an aside on the dictionary definition of the two words which feature in the title of this article.
Gobbledegook means unintelligible language.
Regurgitate means repeat information without understanding it. Regurgitation is the noun.
After you have read the article you should have an inkling of what I am trying to suggest with the words. You can then judge for yourself.
There are only two points that really matter in this appeal: Clauses (2)(a) and (6) of Article 16
Let us see if ordinary people like us can understand Clauses (2)(a) and (6) of Article 16 of the Constitution of Perak better than the judges of this Court of Appeal.
There are only two points that really matter in the appeal. They are Clauses (2)(a) and (6) of Article 16 and they read:
(2) (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
(6) If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.
The language of these two clauses, Clause (2)(a) and Clause (6), is easy to understand. There is no ambiguity. Clause (2)(a) is definitive. It is only in this clause that the Ruler has been given the discretion to appoint a Menteri Besar which is based on his judgment.
On the other hand, it is only in Clause (6) where it is said that if the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly then he would be able to ask the Ruler to dissolve the Assembly. If the request for the dissolution of the Assembly is withheld by the Ruler (who has the discretion to do so under Article 1 8(2)(b)), the incumbent Menteri Besar has to tender the resignation of the Executive Council.
It is important that we notice that there is no provision for the incumbent Menteri Besar to resign. In fact, in the present case, the incumbent Menteri Besar Nizar had refused to resign even though he was ordered by the Ruler to do so. Of course, all of us know that the Ruler has no such power to order anyone to do anything. It was unconstitutional of the Ruler to do so.
While members of the Executive Council hold office at the pleasure of the Ruler, it is not so with the Menteri Besar. Clause (7) of Article 16 states:
(7) Subject to Clause (6) a member of the Executive Council other than the Mentri Besar shall hold office at His Royal Highness’ pleasure,
That said, I return to the first part of Clause (6) which I am going to discuss below.
The proper duty of the conjunction “if” is to introduce a conditional sentence
The operative word in Clause (6) is the conjunction “if’. I refer to Fowler‘s Modern English Usage, Second Edition, where it says:
if. To avoid possible ambiguity it may be prudent to confine if to its proper duty of introducing the protasis of a conditional sentence, and not to use it as a substitute for though or whether or (with not) to introduce a possible alternative.
In case you do not know the meaning of the word “protasis”, it means the clause that states the condition in a conditional sentence. In English the protasis is generally introduced by if or unless. But don’t trust Microsoft’s word processor because it suggests the word “protasis” does not exist in the English language. Of course, Fowler is the authority on the usage of the English language (Churchill wrote to the Director of Military Intelligence about the plans for the Normandy landings, “Why must you use intensive here? Intense is the right word. You should read Fowler’ s Modern English Usage on the use of the two words”). Or you may use a good dictionary, not a condensed one, and you will find the word.
The dictionary meaning of the conjunction “if’ means “on condition that, whenever” or “supposing that, in the event that”. In the present context, if is used to mean “on condition that, whenever”. So that Clause (6) is to read like this: On condition that “the Menteri Besar ceases to command the confidence of the majority of the Members of the Legislative Assembly, then,” he can request the Ruler to dissolve the Assembly. This sentence means that “whenever” a Menteri Besar has ceased to command the confidence of the majority of the Assembly, he can request the Ruler to dissolve the Assembly. As stated in Fowler, the proper duty of “if’ is to confine the word to introducing the protasis of a conditional sentence. The condition in the sentence is that the MB’s loss of confidence in the Legislative Assembly has to be established first before the MB can request the Sultan to dissolve the Assembly.
Therefore, it is only on the condition that a Menteri Besar has lost (ceased to command) the confidence of the majority of the Assembly before he can request the Ruler to dissolve the Assembly.
Definitely, it is not up to Nizar the incumbent Menteri Besar to say that he has lost the confidence of the Assembly. How could he be sure of that without a vote being taken at the Assembly? At best, Nizar could only be guessing. Obviously, the only way in which it could be shown with any degree of certainty that Nizar had lost the confidence of the majority of the members of the Assembly is to go to the Assembly itself for a vote to be taken.
But what happens when an MB had lost a formal vote of confidence in the Assembly and still refused to resign?
But then, one may ask the hypothetical question (because this is not the case here), what happens when an MB knows by a vote being taken in the Legislative Assembly that he has lost the confidence of the majority of the Assembly? Can he refuse to resign? Professor Kevin YL Tan in his essay which appears on the web portal LoyarBurok (www.loyarburok.com) tells us that:
This happened in Kelantan in 1977 when its MB, Datuk Mohamed Nasir refused to resign even though he had lost a formal vote of confidence in the Kelantan LA, been sacked by his own party, and had his request for dissolution of the LA refused by the Sultan of Kelantan. The impasse led to the declaration of a state of emergency by the Federal Government that lasted three months, after which the LA was dissolved for fresh elections.
Alas, this single precedent is not particularly instructive. No legal solution was possible and ultimately, the situation was resolved politically by the Sultan dissolving the LA and allowing fresh elections to be called. Perhaps, all rulers and governors should, as a matter of course, accede to requests by their respective MBs to dissolve the LA for fresh elections to be called unless the ruler has a premonition that a calamity might befall the state if he so acceded. That way, new mandates are quickly determined and the business of government can proceed once a new leadership is established. Indeed, the Sultan of Perak supported this view of a ruler’s powers when he was Lord President. In his 1992 essay, “The Role of Constitutional Rulers”, he opined:
“… under normal circumstances, it is taken for granted that the Yang diPertuan Agong would not withhold his consent to a request for dissolution of Parliament. His role under such a situation is purely formal.”
This point was picked up by counsel for Nizar and cited with approval by the High Court.
The Sultan has no explicit power to dismiss an MB under the Perak Constitution. Indeed, neither is the Yang di-Pertuan Agong empowered to dismiss a Prime Minister under the Federal Constitution.
It seems that ordinary people are better than these judges because they could understand what the two clauses mean
Now that you are apprised of the meaning of the two clauses that really matter in the appeal, you should be in a better position than the appellate judges who have missed the points to come to their decision.
We all know that whenever there is a situation when there is no Menteri Besar, such as when the incumbent MB dies or resigns or has been disqualified as an assemblyman (because Nizar is an assemblyman) or has been removed from office by the assembly, then the Ruler “shall first appoint as Mentri 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”: so says Article 16(2)(a). This is the only occasion in which a Ruler can use his ‘judgment” to select and appoint a Menteri Besar.
We also know that a Menteri Besar, once he has been appointed by the Sultan under Clause (2)(a), cannot be removed by him. The MB does not hold office at the Sultan’s pleasure. The Sultan has no power to dismiss the incumbent Menteri Besar Nizar Jamaluddin or to declare the office of Menteri Besar vacant: so says Article 16(7), “Subject to Clause (6) a member of the Executive Council other than the Menteri Besar shall hold office at His Royal Highness’ pleasure (the emphasis is mine)”. So that when Nizar refused to resign after the Sultan has declined to dissolve the Legislative Assembly, the Sultan has no power to dismiss him nor has he the power to appoint another Menteri Besar when Nizar is still the Menteri Besar as he has not resigned his office.
So then, how are we to determine a loss of confidence in the Assembly? Certainly not by an outsider like us. Not even Nizar himself was in any position to say that he did not command the confidence of the majority of the Legislative Assembly. Only the Assembly can determine if Nizar has lost the confidence of the majority of its members.
Therefore, the reality of the situation is that Nizar is still the Menteri Besar when he refused to resign and the Sultan has no power to dismiss him or to deem the office of Menteri Besar has fallen vacant. The Sultan has no discretion or power to appoint a second Menteri Besar when the incumbent is still in office. The Perak Constitution does not provide for two Menteri Besars. Any decision of the courts otherwise is a perverse one because such a decision is not made according to the Laws of the Constitution of Perak.
Don’t you think all of you ordinary people are better judges than these recalcitrant judges of the Court of Appeal? At least (now that you are informed of the constitutional provisions) you know how to apply the relevant law which is applicable in the present case, whereas the judges don’t seem to know how to do it.
Now that you know the law which applies, you are in a position to judge the two judges
So far the Court of Appeal has issued two written judgments. Let us see if the judges who wrote them come up to your expectations.
Raus Sharif JCA who sat as the chairman of this Court of Appeal meandered through 43 tedious pages of his 48 page judgment before he came to the conclusion that Article 16(6) makes no reference to a motion of loss of confidence to be passed by the Legislative Assembly and therefore he concluded that the High Court judge had erred in law. This is what Raus JCA said, p 43:
For the above reasons, I find that the learned judge had erred in law in concluding that the only manner in which the loss of confidence of the majority of members of the Legislative Assembly could only be ascertained by way of motion to be passed in the Legislative Assembly. Such a finding is contrary to the provisions of Article XVI(6) of the Perak State Constitution which makes no reference to such a motion having to be tabled.
Remember my explanation above about the conjunction “if’? In the instant case the use of the conjunction if means “on condition that” or “whenever”. So that the opening words of Article 16(6) should read, thus: On condition that “the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then,” he can request the Ruler to dissolve the Assembly. In other words, the loss of confidence in the Legislative Assembly must be established first before the MB can make his request to the Ruler for a dissolution of the Assembly. Obviously the only way to establish that Nizar has lost the confidence of the majority is to ask the members of the Assembly themselves. It would be incorrect to ask Nizar because he could only guess at his own popularity. Undoubtedly, you must never ask the Ruler to determine the loss of confidence of a Menteri Besar in the Legislative Assembly as he has no power to determine on the status of the MB’s popularity in the Assembly. And if the Court of Appeal were to confer such power on the Ruler, then it is a blatant refusal of the court to administer justice according to the Laws of the Constitution of Perak.
Of course, in Article 36(2) the Sultan is given a general power “to prorogue or dissolve the Legislative Assembly”.
Yet, the judge has relied on the Ruler’s determination that Nizar no longer commands the confidence of members of the Assembly. This is what Raus Sharif JCA said, at p 40 of his 48 page judgment:
It is an undisputed fact that His Royal Highness interviewed the 3 independent members separately in order to ascertain whether they were really supporting Barisan National. They informed His Royal Highness that they no longer supported Nizar as the Menteri Besar. Instead they declared their support to Barisan Nasional. At the end of it, His Royal Highness was satisfied that with the 31 members of the Legislative Assembly supporting the Barisan Nasional, Nizar no longer command the confidence of the majority of the mambers of the Legislative Assembly.
This is a trashy piece of reasoning coming from an appellate judge. Raus Sharif JCA seems not to know that the Ruler is only a constitutional monarch with no prerogative power to do anything but that which the law allows him.
Plainly, the use of the conjunction if in Clause (6) speaks volumes. The loss of confidence of the MB in the Legislative Assembly must be established first before the MB can make his request to the Sultan to dissolve the Assembly. In this case Nizar requested the Sultan to dissolve the Legislative Assembly before it could be established that the MJ3 has lost the confidence of the majority in the Assembly.
Without doubt, it must not be left to interested parties – neither Nizar nor Zambry and his cohorts – to determine the loss of confidence of a Menteri Besar in the legislature. Not even a constitutional monarch could determine the loss of confidence of a Menteri Besar in the Legislative Assembly because he has no power to do so. Not even the judges can confer on themselves a power which does not exist to determine the loss of confidence in the Legislative Assembly of a Menteri Besar except the Assembly itself. It would be unfair and unjust to do so.
The judgment of Ahmad Maarop JCA
Ahmad Maarop JCA arrived at the same conclusion as Raus Sharif JCA except that Ahmad Maarop JCA is more long-winded. At page 42 of his 76 page convoluted judgment Ahmad Maarop JCA said:
In conclusion, I hold that there is no mandatory and1or express requirement in the Perak State Constitution that provides that there must be a vote of no confidence passed in the Legislative Assembly against Nizar before he ceased to command the confidence of the majority of the members of the Legislative Assembly. The fact that he ceased to command the confidence of the majority of the members of the Legislative Assembly under Article XVI(6) could be established by other means. Thus, His Royal Highness was right in making enquiries to satisfy himself as to whether Nizar had in fact ceased to command the confidence of the majority of the members of the Legislative Assembly, in considering Nizar’ s request for the dissolution of the Legislative Assembly.
It took this judge 42 pages to reach this conclusion. At the recent launch of my book, How to Judge the Judges, on 29 June 2009 Mr. Justice Gopal Sri Ram FCJ remarked, “But where a judgment is tainted with intellectual dishonesty there is nothing much you can do except to expose the fallacy of the grounds put forth to justify a conclusion already reached”. Now let us expose the fallacy of the finding of this judge.
The judge said that whether Nizar had ceased to command the majority in the Assembly could be established by other means. One may ask, what other means could there be? He could only give one example. He said, “Thus, His Royal Highness was right in making enquiries to satisfy himself as to whether Nizar had in fact ceased to command the confidence of the majority of the members of the Legislative Assembly, in considering Nizar’s request for the dissolution of the Legislative Assembly”. But, all of us know that the Sultan has no power to do anything except that which the law allows him. As professor Andrew Harding has correctly said in his essay Crisis of Confidence and Perak‘s Constitutional Impasse dated June 8 2009 which is featured on the web portals Malaysian Insider and loyarburok.com:
…. the issue seems to become, who was empowered to make the judgment as to whether the MB still had the confidence of a majority? The Judge gave a correct answer to this question by saying it is the legislature, not the head of state.
…..
But, as the Judge also said, it is in any event clear that the head of state is not given the power under Article 16(6), as he is under Article 16(2)(a), to make a judgment as to matters of confidence
The Judge in Professor Harding’s essay is the much respected Mr. Justice Abdul Aziz of the High Court.
Conclusion
I trust we have exposed the fallacy of the grounds put forth by the two judges of the Court of Appeal. All of you, (the ordinary people) who have been informed of the relevant provisions of the Laws of the Constitution of Perak by reading this article, knew that there are only two clauses of Article 16 which apply to the points that really matter before the Court of Appeal. In Clause (2)(a) the head of state is empowered to make a judgment as to matters of confidence. Whereas in Clause (6) he is not given the power to do so but the legislature is.
Mr. Justice Abdul Aziz in the High Court gave the correct answer by saying it is the legislature, not the head of state, who is empowered to make the judgment as to whether the MB still had the confidence of a majority. And, I trust, all of you would agree with him.
Raus Sharif and Ahmad Maarop JJCA are wrong. They are wrong because there is no empowering provision in Article 16(6). They did not apply the law as it stands. Indeed they have blatantly refused to apply the Laws of the Constitution of Perak. They should be ashamed of themselves for not administering justice according to law. The common people of this country can now judge them for what they are.
The full text of the two judgments can be found on the internet. If you have difficulty in finding the cases, try www.loyarburok.com. If you, as a layman, find the judgments unintelligible then that is what the word gobbledygook means. On the other hand, if you find the lengthy judgments merely repeating information which is unnecessary to the two points that matter in the appeal then that is precisely what regurgitation means. So now you can appreciate the title of this essay.
#1 by Joshua on Tuesday, 7 July 2009 - 8:19 pm
I think the Sultan in Perak only had the power to appoint the Menteri Besar based on the GE results as presented by the Election Commission.
After that he has no power to appoint another MB by assuming the loss of confidence of the members of the LA which is the business of the LA.
pw: turbots 21
#2 by DAP man on Tuesday, 7 July 2009 - 8:37 pm
Raus started off as a JC in Muar and was never an impressive judge who showed he possessed the wisdom of Solomon.
Ahmad was a mere DPP who was never impressive in fighting a case intelligibly.
Then how did they become judges, one may ask?
[deleted]
Little did these judges realize that life is short.
#3 by Loh on Tuesday, 7 July 2009 - 9:07 pm
The Sultan of Peak held one view as Lord President, but an exactly opposite view of the identical situation as Sultan when he was involved.
Is it true that one cannot be objective when personal interest is involved? Is it difficult to weigh the importance of the interest of the population put together as against one’s own?
As for the two judges of the Court of Appeal isn’t it easier to give the obvious and correct judgement than to write voluminous justification which does not help their case. Their judgement will be on record for posterity, and would even be used as lessons on what not to do to students of law studies. Do they not care about their reputation; it is not an error but a deliberate attempt to change the course of political events in the country.
#4 by SpeakUp on Tuesday, 7 July 2009 - 9:34 pm
I wish NH Chan will just go get his practising cert and be lead counsel for Nizar for the appeal. He is just a waste writing when he has the caliber to be a great lead counsel. So sad …
#5 by wanderer on Tuesday, 7 July 2009 - 10:13 pm
The judges of the Court of Appeal and the fancy dressed royal leech, there is only one word to describe them…”Scumbags”
#6 by Saint on Tuesday, 7 July 2009 - 10:14 pm
Dear “SpeakUp” Even NH Chan will loose “if” he takes the case for Nizar. Malaysia Boleh.
#7 by SpeakUp on Tuesday, 7 July 2009 - 10:19 pm
Saint … losing is not the issue, its about being a real advocate, presenting the case well, expounding the law and enlightening the courts … that is all. When the court decides to pervert the law after a good case then so be it, that will be seen by ALL lawyer when they read the Malaysian Law Journal if the case is reported.
#8 by SpeakUp on Tuesday, 7 July 2009 - 10:22 pm
I wonder … did Nizar’s lawyers present the case as how NH Chan has? I truly wonder …
#9 by boh-liao on Tuesday, 7 July 2009 - 10:42 pm
So, on the scale of 10,
how many points for each of the two judgments?
#10 by kcb on Tuesday, 7 July 2009 - 11:17 pm
boh-liao, your guess is as good as mine.
He he he!!!
#11 by grace on Tuesday, 7 July 2009 - 11:19 pm
I agree with saints.
Even though it is crystal clear that the Sultan has no power to dismiss the MB, the judge simply say he has.
Remember article 72. Even an idiot can understand the true meaning and intention of the article, they can simply ignore it .
No way y7ou can beat them!!!
#12 by grace on Tuesday, 7 July 2009 - 11:22 pm
I suspect their level of understanding of English is very poor.
#13 by frankyapp on Wednesday, 8 July 2009 - 2:30 am
Hi Loh.even to a most honest and god fearing guy,he or she would not be able to make similar decisive decision on two different case under diffenent circumstances and the sultan of Perak is no exception.As Lord President,he could made fair judgement (1) setting an good example by leadership ,maybe partially due to his no vesting interest in any business and (2) I may add further that he might have thought that he’s not in line to the monarchy’s accession.In the Perak case,he’s the sultan,he has several multi-billion ringgits contracts with the government through his proxies .Hence he chose greed instead of following his conscience.Times changes,people also changes,but some people changed from bad to worst,most people I know changed from good to bad and sad to say,very few people changed from bad to good.
#14 by sheriff singh on Wednesday, 8 July 2009 - 3:11 am
Do not underestimate the three judges. They may be more intelligent than you think.
Perhaps their three judgements are such so as to achieve a certain objective and purpose. Maybe, maybe not, but think about it.
Maybe their “foolishness” (may I use this word?) will be overturned sometime in the future but for the moment it has led us all to a certain path and direction to the detriment of one party. Their work is done.
#15 by sheriff singh on Wednesday, 8 July 2009 - 4:12 am
If you need to say a cat is a dog you might start with “they have four legs, a tail etc etc”. Never mind if the dog might go “woof, woof” and the cat might meow, its irrelevant.
I have a very strong suspicion we ain’t seen nothing yet. I am dying to read the judgements of the 5 judges of the Supreme Court in due course. Especially from Augustine Paul whom I expect will be called upon once again.
#16 by johnnypok on Wednesday, 8 July 2009 - 4:15 am
The 3 Judges = The 3 Muskeeteers = The 3 Stooges = The 3 Dogs
#17 by House Victim on Wednesday, 8 July 2009 - 4:53 am
1. As mentioned in my postings in http://blog.limkitsiang.com/2009/05/26/do-take-the-trouble-to-understand-before-you-find-fault-with-the-judges-of-the-court-of-appeal/#comments
the “Privilege” of nominating or sacking of any CM has to come from the Ruling party being elected by the People. I believe this was the case of Kelantan in 1977 where the “No Confidence Vote” was the mean to show “the loss of Command of the Majority”. Therefore, once no-confidence vote had been casted, a Fresh election has to be conducted to elect the Ruling Party and so be able to nominate the CM.
2. Article 16 (6) should be interpreted as “Following a vote of no-confidence, either the Ruler dissolve the LA or the CM should hand in the resignation of the Executive Council. It is to prepare for a new election.
3. As mentioned in my previous posting, the CM should be in office until a replacement can come forwards, either by election or a forming of a Temporary Government.
From the Constitution of Perak at
http://www.digitalibrary.my/dmdocuments/malaysiakini/273_perak.pdf
There is no provision that the CM has to resign.
4. This event, should at least, gives the understand that BN is well aware that frogging cannot change the Status of a Ruling Party to nominate a CM. Therefore, they are using the Trick of loss of command of majority. But in a bully and illegal manner.
I believe the “frogging” should be considered as resignation, and, therefore, created vacancy to be filled. That will then need a By-election.
5. Article 18. His Royal Highness to act on advice (of the Executive Council)
This should be interpreted that the Ruler does not rule by Absolute Discretion.
6. Article 22. Appeals to Executive Council.
“When under any written law an appeal against the decision of any
person lies to His Royal Highness or His Royal Highness in Council,
it shall be lawful for His Royal Highness or His Royal Highness in
Council when such appeal is made to appoint a Committee consisting of not less than three members of the Executive Council for the purpose of hearing such appeal and advising His Royal Highness or His Royal Highness in Council (as the case may be) as to the decision that should be made thereon.”
Should interpreted that the Ruler should allow the Appeal under this Article.
7. Nevertheless, the Kelantan 1977 case should be good enough to void the standing of the Appointment of the “illegal” CM IF LAW MEANS LAW IN THIS COUNTRY.
8. Most Probably the next step should go to the Special Court under Article 182 of the Federal Constitution. But, it has to be with the Consent of the Attorney General. PERSONALLY!!
Another Dead End!!
Should AG be above Constitution?
#18 by chengho on Wednesday, 8 July 2009 - 7:20 am
NH Chan ,
register yourself with the bar council and talk to nga/ngeh to defend nizar…but careful if nizar with azizan attitude…
#19 by Jeffrey on Wednesday, 8 July 2009 - 7:23 am
///Definitely, it is not up to Nizar the incumbent Menteri Besar to say that he has lost the confidence of the Assembly. How could he be sure of that without a vote being taken at the Assembly?/// – N H Chan
However when approaching the Sultan to request for dissolution on 4 February 09, did Nizar base his request/rationale on his having lost “the confidence of the majority of Assembly”? I don’t recall.
It was Zambry who approached the Sultan to say that HRH had power to appoint him as MB in substitution of Nizar as MB based on rationale that Nizar having lost the confidence of the Assembly (which went to BN) due to Kataks’ crossovers!
It is crucial to note that (1) Nizar’s request/rationale for dissolution of Assembly was to “resolve the deadlock” is a different issue/basis from (2) that of Zambry’s request for appointment as MB based on him having by then now commanded majority instead of Nizar.
If one looks at strictly issue (2) then the one has to address corollary questions of article 2(6) of Perak Constitution, for eg: by what methods/criteria is the incumbent Menteri Besar’s ceasing to command majority of legislative assembly to be determined? (Here Zambry/BN argued that Ruler/Sultan could determine that. Nizar/PR/NH Chan argued “no”: only legislative assembly by formal vote requiring formalities to be met, membership of political parties to be ascertained, and resignations or change of affiliations registered, could dertermine that. (Well Nizar/PR/NH Chan’s proposals requiring formal vote surely vests greater certainty to the criteria. Besides the argument for formal vote is supported by judicial precedent of Stephen Kalong Ningkan 1966 case!)
Then there are other difficult questions: what happens if incumbent Nizar refused to resign and PR Sivakumar blocked all motions of no confidence mooted by Zambry in Assembly – wouldn’t the Sultan have power to sack Nizar and appoint Zambry? Well these circumstances are hypothethical; had not arisen and lets not waste time addressing them exept to say maybe under such exceptional circumstances Ruler/Sultan could dissolve the Assembly pursuant to His Royal Prerogative under Article XXXVI(2) of Perak constitution.
#20 by Jeffrey on Wednesday, 8 July 2009 - 7:40 am
The point to note is that Nizar’s request for dissolution of assembly was to resolve the deadlock. To resolve the deadlock means Nizar did not prejudge whether he retained or ceased commanding majority vis-a-vis Zambry. Nizar did not even say that he wanted to determine this issue. So issue (2) above of how and who to determine majority – whether by formal vote or Sultan’s judgment – did not strictly arise. Nizar’s request for dissolution did not trigger this.
The only question arising is whether if an MB leading a state govt. wants, at his own accord, to dissolve the Assembly to re-test the peoples mandate in the wake of an imminent challenge, can the Sultan refuse his request? This where the real issue lies. The main obstacle to Nizar is Royal prerogative under Article XVIII(2)(b). It says that the Sultan has a general power to dissolve the state legislative assembly as well as the contrary ie. act in his discretion in withholding a request for dissolution.
I would argue that:
1. Sultan could withhold a request for dissolution only if the reason for such request is flimsy and capricious for eg when Nizar clearly commands big majority and yet for no cogent reason wants to dissolve assembly; or in circumstances stated above that Speaker either blocks motion of no confidence or that after no confidence passed MB refused to resign. I would argue that in an imminent deadlock/uncertainty of government caused by cross over, such a request for dissolution by incumbent MB Nizar was neither flimsy nor capricious and in framework of constitutional monarchy as distinct from absolute monarchy, it has to be acceded to by the Ruler!
2. I am fortified in the above view by what Raja Azlan Shah wrote as Lord President. In his 1982 essay, ‘The Role of Constitutional Rulers’, where he wrote: “under normal circumstances, it is taken for granted that the Yang di-Pertuan Agong would not withhold his consent to a request for dissolution of Parliament. His role under such a situation is purely formal.”
Which is why at Federal/Parlimentary level, by convention the PM’s choice of timing of when to request for dissolution of parliament on or before expiry of 5 year term is PM’s discretion which the King does not reject! It ought to be the same case of the MB vis-a-vis the State Ruler.
#21 by SpeakUp on Wednesday, 8 July 2009 - 8:57 am
Sultan Azlan Shah was faced with a real fact, Nizar does not have majority support with the 3 defectors (and this was an a great excuse for doing BN bidding). That is reality. The Sultan knows the inevitable. Also, it would be dumb that each time Nizar lost the majority he can just call for a statewide election. That is in bad taste when they were so happy to court a BN ADUN.
There is one thing we all need to note. This whole problem is NOT Najib’s or The Sultan of Perak’s fault. They only are mere opportunists or facilitators. We need to stop blaming them. The reality is this is caused by the 3 who swapped their seats and this happened because the root cause is PR’s incompetency in fielding candidates.
Remember, a few months before the whole issue started PR was so ardent in supporting those 2 PKR DUN who were said to be INNOCENT. Are they innocent? I doubt it. Please do not say they were bought over. A person can be bought over when they INTEND to be bought over.
Look at the statements from all 3 ADUNs, so full of spite against PR and full of confidence. See what Hee did at the State Assembly sitting, she was so full of confidence, proud and arrogant.
This is how PR selects its candidates. It has to change, its time PR component parties wake up and start to smell the coffee before its over for them.
Yesterday, I by chance met a fairly senior PR component party member, the conversation was shocking. I learnt that all is not well within. There are real issues in this marriage of convenience. I just wonder why can’t they all make it happen for the Rakyat … not for politics but for the people.
When will politicians from either side really work for the betterment of the people?
#22 by a2a on Wednesday, 8 July 2009 - 9:18 am
They want the Perak so badly because Perak alot of mineral deposit and dig out can without audit report to state government.
#23 by frankyapp on Wednesday, 8 July 2009 - 10:18 am
Hi speakup,even after dome’s day no two side of our politicians will ever work for the people.But our choice is to vote for the less evil one.This is the reality or we have to be realistic ,if we want to live on in this modern soceity.
#24 by SpeakUp on Wednesday, 8 July 2009 - 11:04 am
a2a … its not minerals, its called DYING FOR POWER that is fueled by MONEY.
frankyapp … I know where you are coming from BUT PR made tons of promises and many are questioning it now. PR said, we are here to give you what BN did not give, we are here to be honest and will not work by way of racial politics, we are here as one and will work together despite our political differences. They are no where … even Sin Chew has articles questioning them … one paper that has supported PR.
#25 by House Victim on Wednesday, 8 July 2009 - 11:54 am
1.
a) The case of Kelantan 1977 should support that the Sultan does not has the power of Sacking a CM. The nomination and thereby the sacking of the CM is the “privilege” of the Ruling Party resulted by a GE. But, LA can “vote out” the CM.
b) The declaration of Emergency by the Federal Government should also an indication that the Government representing the People has administrative intervention power over the “dispute” of CM and the Sultan.
2. The “Frogging” does not change a Ruling Party as demonostrated by the Perak case. Otherwise, BN/Sultan would not use the excuse of loss of majority.
3. Article 16 (6) should indicate that “Following a vote of no-confidence, either the Ruler dissolve the LA or the CM should hand in the resignation of the Executive Council to prepare for a new election.
4. Article 18. His Royal Highness to act on advice (of the Executive Council)
This should be interpreted that the Ruler does not rule by Absolute Discretion.
5. I believe the key point should fall on the nomination and sacking of CM has to come from a Ruling Party or his coalition. The later can only be determined by election. So, even the Sultan has the power of sacking the CM, a new election still have to be conducted after sacking of CM.
#26 by frankyapp on Wednesday, 8 July 2009 - 11:58 am
Hi speakUp,do you mean I’m from Kota Kinabalu,Sabah ?. Yes I’m and am pretty proud too.Like I said,it’s your choice to choose the less evil one because between the two there are not equally evil.I appreciate your concern for me,thanks but no thanks anyway as I know who is the most evil one. I can decide for myself , ok.
#27 by SpeakUp on Wednesday, 8 July 2009 - 12:35 pm
Frankyapp … I meant I understand what you mean about choosing the lesser of two evils. Not that you are from KK. Sorry … hehehehee
#28 by Jeffrey on Wednesday, 8 July 2009 - 1:08 pm
//The Sultan knows the inevitable. Also, it would be dumb that each time Nizar lost the majority he can just call for a statewide election. That is in bad taste when they were so happy to court a BN ADUN.// – SpeakUp
I don’t think its best taste for these reasons:
In accordance with best practices/convention of parliamentary democracy, the coalition that won most seats representing voice of majority of voters in state assembly will form the state government. That was done in Perak’s case. PR formed the state government. At legislative assembly level PR assemblymen were majority supposedly representing majority voters.
However here majority in assembly has subsequently changed from PR to BN due to defections.
Here losing majority on Nizar’s part in Perak state assembly is not synonymous with losing majority of people/Perakians’ support.
This is because the loss of majority was due to 3 PR aduns frogging over to BN side when they originally won their seats under PR’s ticket. There were by elections to legitimize their defections and continuance as assemblymen.
So in accordance with best practices/convention of parliamentary democracy there should be, in the face of such uncertainty caused by the defections, a statewide election in Perak to re-determine who -PR or BN- commands the mandate.
This position is consistent with what happened in Kelantan in 1977 ( cited by constitutional lecturer Kevin Y L Tan ) “when its MB, Datuk Mohamed Nasir refused to resign even though he had lost a vote of confidence motion in the Kelantan LA, been sacked by his own party, and had his request for dissolution of the LA refused by the Sultan of Kelantan. The impasse led to the declaration of a state of emergency by the Federal Government that lasted three months, after which the Legislative assembly was dissolved for fresh elections.”
In Kelantan it was a worser situation for MB, Datuk Mohamed Nasir than Perak MB Nizar. Nasir suffered a vote of no confidence, where Nizar did not, though he might face the prospect of it in due course. Even then fresh elections called in Nasir’s case, which I argue more so, in Nizar’s case, when he did not suffer a vote of confidence being passed unlike his kelantan counterpart.
Why? Because best practices dictate people’s will should prevail. Where people’s majority will was originally reflected in legislative assembly by majority of their candidates being voted in as aduns, when this situation – ie majority of numbers in stae assembly – subsequently changes in manner not necessarily reflecting correspondent changes in majority voters’ will because these defections are not legitimised by by election – then majority in numbers in state assembly no more reflects majority support of the people and therefore a fresh stae wide election has to be called.
That is why (in my personal opinion) the expression in article 16(6) – “unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council” must be read as intending to confer to incumbent MB only 2 options when majority in legislative assembly is lost : either resign or request for dissolution of Legislative Assembly that His Royal Highness must, barring the most extenuating circumstances, must accede to in context of constitutional monarchy/parliamentary democracy as opposed to absolute monarchy.
#29 by Jeffrey on Wednesday, 8 July 2009 - 1:11 pm
Sorry, typo omission in 6th para from top : “…There were NO by elections to legitimize their defections and continuance as assemblymen…”
#30 by a2a on Wednesday, 8 July 2009 - 1:43 pm
It is so shameful, afterall what BN done to PAS/PR MB of perak, there are some of PAS think unity talk with UMNO/robbers/liars are a noble act.
How shameful.
I do not know whether they understand shameful.
#31 by Loh on Wednesday, 8 July 2009 - 2:24 pm
///There is one thing we all need to note. This whole problem is NOT Najib’s or The Sultan of Perak’s fault. They only are mere opportunists or facilitators. We need to stop blaming them. The reality is this is caused by the 3 who swapped their seats and this happened because the root cause is PR’s incompetency in fielding candidates.///
Expect a scholarship and a state award for words said well.
If the Election Commission did not usurp the power, and conducted by-elections for the constituencies of the three ADUNs whose resignations were accepted by the Speaker, the people of Perak and the whole country would abide by the outcome.
The Governor of Sarawak in 1966 did exactly the same thing as the Perak Sultan. He met with the ADUNs who wanted the CM Stephen kalong Ningkam out, and he sacked the chief Minister. The High court ruled that the Governor was wrong and the CM was reinstated. Tunku did not proceed to get the stay of execution like Najib.
Justice Abdul Aziz ruled in accordance with the same principle. Now the three Justice of the Court of Appeal choose to add words that were not written in the state constitution. The judges might just add that appointed governor unlike the hereditary rulers has no permanent position, and hence did not have the special privilege conferred by Malay dominance. They could rule further that since the wishes of the Ruler are the command of the rakyat, like UMNO leaders claimed that it was treason not to follow Rulers’ wishes, Ruler has additional power over appointed Governor.
#32 by SpeakUp on Wednesday, 8 July 2009 - 3:07 pm
Jeff … I agree about the people’s support as the people are the ones who chose but the fact is that in many democracies there can be a change of power because of MP/ADUNs shifting camp. Of course BN mati-mati also will not allow for a state election, we all know why.
What I meant about bad taste is that if you wish to court BN ADUNs then face the consequences when yours are courted. The BN crossover was a set up, that was well played by Najib, that allowed him to then pull the other 3 which was already ready to do so but the 1st crossover gave him the opportunity and then to come back into BN allows an even better PR (public relations) coup.
Again, if we follow your reasoning, then IF Anwar was successful in pulling over 41 MPs last year that would have been a clear breach of the people’s mandate as to who should govern Malaysia. Is that not so? But Anwar did not care, he was so happy to say he had the support and that he will go see the Agong about it.
Loh … what I said about PR’s candidates is a fact, that does not mean what BN did was right and should be allowed. Tunku was wise in that instance not to appeal as that would cause an imbalance in the whole system. He rather let it slide and wait for the next round.
Bottom line is we all know that BN mati-mati also want to win la. That is a fact we are not disputing. They do not care if its done properly or fairly or whatever you want to call it. They just want it. I believe I made that clear. Still it does not absolve the fact that the 3 candidates fielded are full or cr@p.
#33 by a2a on Wednesday, 8 July 2009 - 4:34 pm
If Robin Hood having jumping frogs to uphold justice, equality, democracy to Malaysians, NO PROBLEM.
If PIRATES having jumpong frogs to uphold injustice, inequlity and undemocracy to Malaysians, BIG BIG PROBLEM.
So you see the difference.
#34 by SpeakUp on Wednesday, 8 July 2009 - 9:25 pm
a2a … PR frogs did not bother to help anyone right? :) Also, the issue is legal and about principals … its about not getting anyone to jump. So if what you say is right then that means DSAI is ok and Karpal Singh’s opposition to party hopping is all wrong?
Looks like we bend the law for what we think is right and that is what BN does too. They think its right to ‘pinjam’ some of the Rakyat’s duit because they are working so so hard and its necessary to feed all their friends.
We need to do what is right without compromise. Many famous dictators in history started out that way too, bend a bit a bit … at the end its like Pol Pot, Noriega, Idi Amin etc.
#35 by Jeffrey on Wednesday, 8 July 2009 - 11:20 pm
///Again, if we follow your reasoning, then IF Anwar was successful in pulling over 41 MPs last year that would have been a clear breach of the people’s mandate/// – SpeakUp.
Yes I agree it it would be. And rightly condemned too if it happened.
Which is why Anwar/PR has undoubtedly lost the high moral ground to criticise and condemn Zambry/BN for soliciting the crossovers to accomplish the “coup de grace” in Perak Assembly. As they say what is sauce for goose is sauce for gander and one forfeits the moral right to condemn the action of the opponent that does the same thing as what one wanted to do, albeit failed to do.
However in this particular thread we are not discussing this particular moral issue.
We are looking at the legality and constitutionality of BN’s takeover by such methods – and whether it is legally and constitutionally right or wrong.
If we have reasons to justify that it is legally and constitutionally right or wrong, then we say and conclude so.
It has nothing to do with the other moral issue whether Anwar/PR has the moral right to criticise/condemn Zambry/BN for doing exactly (successfully) what Anwar declared an intention to do but (unsuccessfully) failed to do.
Anwar had an intention to soliciit 41 defections and usurp Federal power but he failed to execute it : hence has not committed a wrong of unconstitutional usurpation of power. (Like I can express an intention to kill someone but if I did not do it I have committed no crime of murder no matter how immoral my intention).
Though he had not the moral basis to criticise BN for doing the same thing at state level in Perak, the fact that BN had actually executed it would not absolve BN from blame of perpetrating a legal and constitutional wrong.
And it is this second issue of the legal and constitutional wrong done by BN in Perak that is raised by NH Chan which has been extensively discussed by readers/commentators here.
This is separate from first issue of moral tit for tat that is conceded.
It is true the statement if “you wish to court BN ADUNs then face the consequences when yours are courted” but that however does not make BN’s courting of PR’s aduns legal and constitutionally right or provide it the legal and constitutional justification to take over Perak Assembly the way BN did.
That’s the way I see it. :)
#36 by Jeffrey on Wednesday, 8 July 2009 - 11:35 pm
Supposing we agree an assault on someone else is unlawful.
Using the analogy of A expressing an intention to do an unlawful act of assaulting Z but somehow fails to execute the act of assaulting Z, however Z on hearing this, does the same number on A by successfully assaulting A.
In such a case who has committed the unlawful act? It has to be Z. Yes A evinces an intention to do the same but he commits no unlawful act because he has failed to execute it.
Does the fact that A evinces an intention to assault but never carried it out exonerate or exculpate Z when Z actually carried out the wrongful assault on A? This cannot be. We still adjudge Z is wrong for committing the unlawful act of assault on A.
#37 by HJ Angus on Wednesday, 8 July 2009 - 11:39 pm
No wonder the authorities are decided to get bck to the “No English” policy.
It seems that judges too have problems with the “if” word.
Even those championing the use of BM struggle with their speeches and end up using a hybrid language of BM sprinkled with many English words that are distorted.
A national disgrace! And thousands of poor children will not receive an education that will enable them to progress beyond SPM.
http://malaysiawatch4.blogspot.com/2009/07/malaysiakini-the-great.html
#38 by SpeakUp on Wednesday, 8 July 2009 - 11:52 pm
Jeff … I agree that what BN did in Perak is not justified. But you also given me a new idea … now that PR took one of theirs and BN took 3 of PR with 1 returning also … PR can now be justified to take 41 MPs. :) What happens next? Hehehee …
As for Mr. A I hope he did not plan the assault with someone else … if not then its a conspiracy. Hahahahaaa
#39 by Jeffrey on Thursday, 9 July 2009 - 12:09 am
I like your pun on “assault” – in juxtaposition with ‘conspiracy’ Terrible lah you :)
#40 by Loh on Thursday, 9 July 2009 - 12:21 am
///Anwar had an intention to soliciit 41 defections and usurp Federal power but he failed to execute it : hence has not committed a wrong of unconstitutional usurpation of power.///– Jeffrey
If Anwar succeeded in getting the 41 MPs to be liberalized, and AAB did not wish to resign, then the King would have dissolved Parliament and the people would have a chance to decide once again whether the 41 MPs were those they want represented again.
The people of Perak asked for this outcome. MB Nizar asked the Sultan to dissolve the State assembly. Nevertheless the state assembly could have awaited the outcome of by-election to be held on the three constituencies of which the ADUNs had submitted letter of resignations and the Speaker had accepted them and made request for by-election to be held. Under normal circumstances when the Election Commission is neutral to political parties and it carries out its functions as envisaged by the constitution, it would accept the request made by the Speaker of the State Assembly, without question. The Sultan of Perak made by-elections disadvantage to BN and hence the election Commission followed through with its overzealous enthusiasm to ensure BN rule in Perak is complete and absolute.
The issue is not whether MPs and ADUNs should practice their right of free association. It is the failure of the institutions in the county to carry out the duties entrusted to the personnel employed in these institutions. We have firstly the Election Commission Chief who usurped the power to decide vacancy, which was supported by the judge in the court of appeal who pretended not to understand English. We have the High court judge who knew that the judgment by Justice Abdul Aziz was grounded in accordance to precedent which had not been challenged for 43 years and yet he granted a stay within 24 hours of the judgment and 20 minutes of Court proceedings. We have three judges of the Court of Appeal who had the benefit to read explanation by NH Chan’s on why the judgment of Justice Abdul Aziz was correct and yet they ruled with full knowledge that they were infringing the codes of conduct for judges, for malfeasance. Now, the three judges of Court of Appeal are seen either as novice in law or they had a price for making judgment-to-order.
The longer Najib refuses to call it quit on power grab in Perak, the more the personnel of government institutions are coming out to convince the world that the country is in a state of anarchy held together through police state. No number of telephone calls from Obama would make him acceptable to the democratic world.
Since Saiful approached the right authority for scholarship, and produced the proof of his eligibility for the award, the voice against Anwar gets louder. People have the knack to back winner, and declaring so as if they might miss out on opportunity for reward in that regards.
#41 by SpeakUp on Thursday, 9 July 2009 - 9:11 am
Jeff … Mr A and ‘assault’ was not intended to be a pun …now that you pointed it out it got me laughing! :)
When will Malaysia be at peace where the Rakyat will not think about race politics and the politicians from both sides are fighting for the people’s best interest?
#42 by ktteokt on Friday, 10 July 2009 - 1:28 pm
I am just wondering in what capacity is Hee sitting in the state assembly. The people of Jelapang has rejected her since she hopped out of DAP and even her service centre in Jelapang is closed.
And she had the guts to say that she is a “Pro-BN independent statesassembly person”! So which constituency is she representing? Or is she claiming that she is a pro-BN independent statesassembly person representing NO ONE!