By NH Chan
MARCH 12 — On Tuesday March 9, 2010 the Sun reports:
Federal Court: Anwar’s sacking from cabinet lawful
Putrajaya: The sacking of Datuk Seri Anwar Ibrahim as deputy prime minister and finance minister 11 years ago was lawful, the Federal Court ruled yesterday.
Court of Appeal President Tan Sri Alauddin Mohd Sheriff and Federal Court judges Datuk Wira Mohd Ghazali Mohd Yusof and Datul Abdull Hamid Embong unanimously dismissed Anwar’s final appeal for a declaration that his dismissal from his cabinet posts in September 2, 1998 was unconstitutional.
Alauddin held that the then prime minister, Tun Dr Mahathir Mohamad, had the authority under the Federal Constitution to sack his cabinet minister.
He said, the King, as a constitutional monarch, was required to act in accordance with the advice of the prime minister.
…On Anwar’s contention that it was the prime minister who had effected his revocation and not the King, he said the contention was misleading. The format and manner on how a revocation was to be effected was not provided in the law and there was also no provision in the law requiring the King to personally convey to Anwar the revocation of appointment, he said.
THE JUDGMENT IS ACCORDING TO LAW
I must say at the outset, the decision of the Federal Court is correct. The judgment is correct because it is made according to law. It is also a decision against Anwar Ibrahim.
But why is it that when the law is against the Government of the day these same judges would not decide according to law? One wonders!
Here are the reasons why I say the judgment is correct in law. (LoyarBurok has supplied the emphasis)
All other ministers (except the prime minister) are appointed under Article 43(2)(b) on the advice of the prime minister
I start with Article 43(2)(b) of the Federal Constitution. It says:
(2) The Cabinet shall be appointed as follows, that is to say:
(a) The Yang di-Pertuan Agong shall first appoint as Perdana Mentri (prime minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House; and
(b) He shall on the advice of the prime minister appoint other Mentri (ministers) from among the members of either House of Parliament, (I have supplied the emphasis)
Article 43(2)(b) clearly shows that the Yang di-Pertuan Agong (the King) appoints all the other ministers on the advice of the prime minister.
And they can also be sacked on the advice of the prime minister under Article 43(5).
Article 43(5) of the Constitution states:
(5) Subject to Clause (4), ministers other than the prime minister shall hold office during the pleasure of the Yang di-Pertuan Agong, unless the appointment of any minister shall have been revoked by the Yang di-Pertuan Agong on the advice of the prime minister but any minister may resign his office.
This is what Clause (5) means –
(a) All the ministers (other than the prime minister) hold office during the pleasure of the King,
(b) unless (it means “except when”, “if not”) the King revokes the minister’s appointment on the advice of the prime minister.
(c) But any minister may resign his office.
What does “on the advice” mean?
It means the King has to act on the order of the prime minister. He has no option; He must act as he was told. Lord Diplock explains it in Teh Chang Poh v Public Prosecutor [1979] 1 MLJ 50, at 52. He said:
Although this, like other powers under the Constitution, is conferred nominally upon the Yang di-Pertuan Agong by virtue of his office as the Supreme Head of the Federation and is expressed to be exercisable if he is satisfied of a particular matter, his functions are those of a constitutional monarch and except on matters that do not concern the instant appeal, he does not exercise any of his functions under the Constitution on his own initiative but is required by Article 40(1) to act in accordance with the advice of the Cabinet.
So when one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affair exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular minister to whom the Cabinet have delegated their authority to give advice upon the matter in question.
So that when Clause (5) of Article 43 says that all the ministers (other than the prime minister) hold office during the pleasure of the King unless he revokes the appointment on the advice of the prime minister, it means this:
The ministers will remain in office unless the King is ordered by the prime minister to revoke their appointment.
Therefore, Lamin PCA was not wrong when he said in Datuk Seri Anwar bin Ibrahim v Public Prosecutor [2000] 3 AMR 2899:
Under [Article 43(5)] a minister other than the prime minister holds office at the pleasure of the prime minister. In actual terms, he holds office at the pleasure of the prime minister. This means that the prime minister may revoke his appointment at any time. Of course formality of his appointment shall be be acted upon by the Yang di-Pertuan Agong “on the advice of the prime minister”. The Yang di-Pertuan Agong must act on such advice.
Also, see Datuk Seri Anwar bin Ibrahim v Perdana Menteri Malaysia & Anor [2007] 4 MLJ 422 at p 432 by Raus Sharif JCA: “The power to dismiss any minister is in effect with the prime minister. He can at any time advice the Yang di-Pertuan Agong to dismiss any minister and His Majesty is bound to act on the advice of the prime minister.”
#1 by ENDANGERED HORNBILL on Friday, 12 March 2010 - 1:46 pm
One would have thought the judiciary ought to know what is sauce for the gander is also sauce for the goose.
How can-man-lah, “black-eye ketchup” for Anwar and Mayonaisse for UMNO.
#2 by ENDANGERED HORNBILL on Friday, 12 March 2010 - 1:52 pm
Oh, and btw, henceforth, wud it be necessary for all judgments to be vetted and edited for plain n painful english mistakes, warped reasoning and erroneous judgments, not to mention ignorance of thelaw.
#3 by ktteokt on Friday, 12 March 2010 - 2:07 pm
All decided according to interpretation of THE MALAYSIAN CONSTITUTION by UMNO GOONS!
#4 by limkamput on Friday, 12 March 2010 - 3:01 pm
Sorry a bit cocky lah. I also know Anwar’s suit against Mamathir is to force a decision on the Federal Court so that Justice Chan can make this comment.
#5 by -ec- on Friday, 12 March 2010 - 3:52 pm
u.s. state department human rights report 2009: malaysia
bureau of democracy, human rights, and labor
march 11, 2010
The government generally respected the human rights of its citizens; however, there were problems in some areas. Significant obstacles prevented opposition parties from competing on equal terms with the ruling coalition. Some deaths occurred during police apprehensions and while in police custody. The nonprofessional People’s Volunteer Corps (RELA) reportedly abused refugees, asylum seekers, and illegal immigrants. Other problems included police abuse of detainees, overcrowded immigration detention centers (IDCs), use of arbitrary arrest and detention using the Internal Security Act (ISA) and three other statutes that allow detention without trial, and persistent questions about the impartiality and independence of the judiciary. The government continued to pursue the prosecution of a prominent opposition leader on politically motivated charges. The government also arrested other opposition leaders, journalists, and Internet bloggers apparently for political reasons. The civil courts continued to allow the Shari’a (Islamic law) courts to exercise jurisdiction in cases involving families that included non-Muslims. Additionally, the criminal and Shari’a courts utilized caning as a form of punishment. The government continued to restrict freedom of press, association, assembly, speech, and religion. Trafficking in persons remained a serious problem. Longstanding government policies gave preferences to ethnic Malays in many areas. Some employers exploited migrant workers and ethnic Indian-Malaysians through forced labor. Some child labor occurred in plantations.
details at http://www.state.gov/g/drl/rls/hrrpt/2009/eap/135998.htm
#6 by frankyapp on Friday, 12 March 2010 - 4:09 pm
He said, the King, as a constitutional monarch, was required to act in accordance with the advice of the prime minister.
Does this rule also applies to the State’s sultan and governor ? In the Perak case,wonder why the sultan didn’t act in accordance with the advice of the then MB. … The Yang di-Pertuan Agong shall first appoint as Perdana Mentri (prime minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House; and does this mean anyone irrespective of race and religion can become malaysia’s prime minister as long as he/she commands the confidence of the majority of the members of the house. Is there a rule in the constitution in both parliament and state assembly barring non malays/muslim holding the PM and MB position or giving power to both Agong and sultan to reject non malays/muslim even though he/she commands the confidence of the majority of the members of the house ? I would appreciate some answers from you guys.
#7 by Jeffrey on Friday, 12 March 2010 - 5:01 pm
///Sorry a bit cocky lah. I also know Anwar’s suit against Mamathir is to force a decision on the Federal Court so that Justice Chan can make this comment.///
Lim Kam Put,
Its not a bit cocky. Your comment is pure talking cock! Anwar did not force a decision on Federal Court so that Justice Chan can make this comment (as if Justice Chan needs it to make a comment!)
If you cannot contribute any input like Chan on whether Federal Court was right or wrong – your intellectual poverty is noted in this respect (thank you) but you don’t have to ventilate it so tiresomely and repeatedly- then don’t comment for the sake of commenting because it sounds stupid and irrelevant, and waste this blog’s bandwidth.
#8 by limkamput on Friday, 12 March 2010 - 8:11 pm
If you want to be vindictive, there is nothing much I can do. But this much I can tell you, it is not good for your health.
Yes, I still maintain that Anwar’s challenge is to force the hand of the Federal Court to make contradictory decisions. As for Justice Chan’s comment, of course he is more qualified and has better credential to comment. But if I am a judge (and I have only read the Malaysian constitution on my own), I also know how to cite specific articles in the constitution which more or less state that all cabinet ministers hold office at the pleasure of PM.
#9 by sheriff singh on Saturday, 13 March 2010 - 1:21 am
If I am not wrong, there is no such position as “Deputy Prime Minister” mentioned anywhere in our constitution.
So the DPM is just another Minister who is capable of being sacked by the PM who has full powers to do so. The King just complies and can do nothing. (Najib, take note).
There is a good way and there is a bad way of doing things, and yet achieve the same result.
According to what Anwar said after the FC’s decision, the King was only informed of the sacking by the PM well after the deed was accomplished. And his Majesty only signed the administrative papers after a few days. It appeared his majesty was not too happy about this but what can he do? He apologised to Anwar.
But why is the constitution so confusing and murky? Why doesn’t it just say so in plain simple England? Why waste 12 years and thousands of man-hours?
Oh, I get it. The draftsmen, lawyers and judges need jobs, something to do.
“The Yang di-Pertuan Agong shall first appoint as Perdana Mentri (prime minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House..”
This would mean that in the Perak case, Sultan Azlan was not wrong when he appointed someone whom he thinks commanded the support of the majority.
The only problem and error was that the previous fellow, the incumbent, had not been properly and legally removed and a vacancy had not been created. Tricky.
I think everyone should just go for a cup of teh tarik, think things over and then decide.
#10 by Jeffrey on Saturday, 13 March 2010 - 1:53 am
Re LimKamPut’s posting #8.
First in your comment #4 you said that “Anwar’s suit against Mamathir is to force a decision on the Federal Court so that Justice Chan can make this comment”. Then in posting #8, you twisted it differently to “maintain that Anwar’s challenge is to force the hand of the Federal Court to make contradictory decisions”, this time without mentioning about N H Chan. Wasn’t your first comment frivolous? And your second in #8 – to force Federal Court to make contradictory decisions? How would Federal Court be forced to make contradictory decisions?
Next on your comment – “But if I am a judge (and I have only read the Malaysian constitution on my own), I also know how to cite specific articles in the constitution which more or less state that all cabinet ministers hold office at the pleasure of PM.”
Whats the point on one had saying Justice Chan “is more qualified and has better credential to comment” than you and in next breath deride NH Chan’s comment as no big deal – just a citation of “specific articles in the constitution which more or less state that all cabinet ministers hold office at the pleasure of PM” (as if he had not made any analysis requiring the brain process) at all?
Does your bipolar mental process get satisfaction from deriding what others say (including an ex judge on matters of constitution)?
Well at least he cites the law for us to be familiar with it.
I don’t hear you telling us anything even if as you claimed you have “read the Malaysian constitution on my own” (bravo).
#11 by Jeffrey on Saturday, 13 March 2010 - 1:55 am
“…Whats the point on one HAND…” (not “had”)
#12 by limkamput on Saturday, 13 March 2010 - 9:29 am
You are splitting hair lah Jeffrey. No contradiction at all. If you want to act stupid, there is nothing much I can do. My comment in #4 was essentially saying that Anwar’s suit has allowed the opportunity for Justice Chan to make the comment as he has made.
My comment in #8 also more or less the same thing. It is obvious Anwar’s suit will not succeed; I think everybody knows it, based on the law and constitution. The only difference is Justice Chan was able to state it more eloquently and more succinctly. Having said that, in all honestly, I think I also know where to look for those provisions in the constitution which more or less imply that all ministers hold office at the pleasure of PM. The contradictory Federal court decisions are in regard to similar circumstances with two different decisions (i.e. the power and the authority of Agong or sultan). I think you know what wrote, you are just trying to get even, that is not a hallmark of an intellectual. I have recommended you to be a PR candidate for the coming GE, so act like one!
#13 by Jeffrey on Saturday, 13 March 2010 - 10:24 am
///The contradictory Federal court decisions are in regard to similar circumstances with two different decisions (i.e. the power and the authority of Agong or sultan)///.
What is so similar in circumstance or contradictory about this decision of Anwar, the DPM, holding office at PM’s pleasure that may be revoked as to appointment at any time under the formality of the Yang di-Pertuan Agong “on the advice of the PM from that of the Perak’s case involving the Ruler/HRH Sultan of Perak’s revocation of PR’s MB (Nizar)’s appointment???
#14 by johnnypok on Monday, 15 March 2010 - 4:10 pm
Anwar should be reinstated and TDM sent to jail to spend his remaining time there.