Gobbledegook and regurgitation galore in the 2 written judgments of the Court of Appeal in Zambry v Nizar

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 Laws of the Constitution of Perak better than the judges of this Court of Appeal.

Clause 16(2)(a) reads:

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.

Clause 16(6) reads:

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 18(2)(b)), the incumbent Menteri Besar has to tender the resignation of the Executive Council.

It is important that we note 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:

Subject to Clause (6) a member of the Executive Council other than the Menteri 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 (2nd ed) 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 once 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 Menteri Besar‘s loss of confidence in the Legislative Assembly has to be established first before the Menteri Besar 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 a Menteri Besar 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 di-Pertuan 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 Menteri Besar 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 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”: 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 Menteri Besar 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 had no power to dismiss him nor had he the power to appoint another Menteri Besar when Nizar is still the Menteri Besar as he had 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 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 Besar-s.

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 at 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 Menteri Besar 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 Menteri Besar‘s popularity in the Assembly. And if the Court of Appeal was 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 Nasional. 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 members 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 Menteri Besar in the Legislative Assembly must be established first before the Menteri Besar 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 Menteri Besar 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 p. 42 of his 76 page convoluted judgment Ahmad Maarop JCA said:

In conclusion, I hold that there is no mandatory and/or 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 before hearing counsel.

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 “Crises of Confidence and Perak’s Constitutional Impasse” which is featured on the web portals Malaysian Insider and www.loyarburok.com:

Accordingly 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 I 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, know 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 Menteri Besar 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 who 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 here. If you, as a layman, find the judgments unintelligible then that is what the word gobbledegook 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.


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Posts by NH Chan

NH Chan, a much respected former Court of Appeal Judge, is a gavel of justice that has no hesitation in pounding on Federal Court judges with wooden desks for heads. Retired from the Judiciary to become the People’s Judge. Wrote the explosive “Judging The Judges”, now in its 2nd edition as “How To Judge The Judges”. Once famously hinted at a possible “case match” between lawyer and judge by remarking that “something is rotten in the state of Denmark” (see Ayer Molek Rubber Company Berhad & Ors v Insas Berhad & Anor [1995] 3 CLJ 359). We need more people like NH Chan. That is why you should buy PASOC and his book.

Posted on 7 July 2009. You can follow any responses to this entry through the RSS 2.0.

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22 Responses to Gobbledegook and regurgitation galore in the 2 written judgments of the Court of Appeal in Zambry v Nizar

  1. Pingback: The LoyarBurok Book Review: “Perak: A State Of Crisis” – A Cascading Illegality | LoyarBurok

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  3. Pingback: Part 2 – Inane judges in zambry v Nizar case: Postscript – Zainun Ali JCA’s judgment « BlogCkChew – Stand Up, Be Counted;

  4. Loyar Bagus

    Mat Top,

    Sorry I forgot to reply to your addendum.

    I have no problem or disagreement with your views at all. Like I said before, it is really a dispute of whether we have a Clause (6) trigger, namely the loss of confidence.

  5. Loyar Bagus

    Lawyer Lua,

    My comments were prefaced with, and I quote myself: "IF…the Menteri Besar has refused to resign…" So I do not see where you are coming from.

    You will see from the current facts that Nizar did not resign once his request for a dissolution was refused. See my first post – I argued FOR the fact the Menteri Besar was part of the Exco and had to resign along with the Exco. If he fails to do so, HRH was empowered to remove him under Cl(6) and declare Zambry as the new Menteri Besar.

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  7. Lawyer Lua

    Article 16(6) EXCO is a CLASS. The MB is inside this CLASS. When the CLASS is removed, the MB is also gone with the CLASS. No need to remove the MB separately. The Majority must decide .

  8. addendum:

    Loyar bagus, I said a vote of no confidence is tantamount to the Leg Assy sacking the Exco which includes the MB. This is the essence of constitutional parliamentary democracy.

    In a parliamentary democracy, the populace elected its representative to represent them and to govern the State. The representatives who are members of the Leg Assy amongst themselves elected the MB and members of the executive organ of the government ie the Exco. It must be a person who enjoys the confidence of the majority. This Exco by virtue of Art.16(5) if I am not mistaken is collectively responsible to the Leg Assy themselves and indirectly responsible to the populace/voters. since the voters have their own elected Assy'man.

    The Exco is not responsible to the Sultan and any Exco member can only be dismissed by the Sultan on the advice of the MB.

    If the populace/voters doesn't like this executive organ for underperformance, they have every right to sack them and replace by a new Exco. This they do by asking their elected reps in the Leg Assy to pass a vote of no confidence. Therefore a vote of no confidence is tantamount to the Leg Assy which represents the people sacking the Exco and replacing with a new one.

    But the Consti gives the MB one weapon. On being 'sacked' by the Leg Assy, he has the right to approach the Sultan to dissolve the Leg Assy. The clause in Art 16(6) namely, " shall tender the resignation of the Exco' can be said to be couched in diplomatic language as a face saving measure to the 'sacked' Exco. For all intent and purpose, the passing of a vote of no confidence by the Leg Assy is tantamount to the Exco being sacked already. As a face saving measure, the Consti expect him and the Consti requires him to resign failing which he is deemed sacked by the Leg Assy.

    Sultan? Where got power. He just waits for the Leg Assy to make a decision whether to sack the MB or not by passing a vote of no confidence. This is my take on Art. 16 which is in accord with constitutional convention and practices of a parliamentary democracy.

  9. Sorry, Loyar bagus, if I had missed your point.

    Both you and Judge NH Chan are correct lah.

    Firstly, the Perak Consti does not give explicit power to Sultan to dismiss an MB. Secondly if Art.16(6) had been fully and constitutionally complied with, namely, the Leg Assy has passed a vote of no confidence against the MB, then the MB shall tender the resignation of the Exco if a request for dissolution is rejected. If the MB fails to do so when there is a mandatory duty on him to resign under the said Article, then I would think that it is within the constitutional right of the Sultan to invite another Leg member whom in his judgement has confidence of the majority to become the next MB.

    In the Perak case, I am sure Nizar would gladly tender his resignation if there is a vote of confidence against him by the Leg Assy. And if he refuses to do so which is very unlikely then and only then could R. Azlan Shah invite Zambery to become MB and form the next Exco.

    A vote of no confidence against the MB by the Leg Assy is tantamount to an act of sacking the MB and his Exco members. Only the Leg Assy and not the Sultan could do that. That is the only way civil and constitutional governments had conducted their business when it comes to sacking its PM/MB. Sultan being a constitutional monarch should be above political affray.

  10. Janetlee

    Dear Mr. NH Chan,

    I think you could establish a finishing school for prospective Judges prior to their sitting on the bench. Just like lawyers undergoing Pupillage prior to admission as an Advocate & Solicitor to the High Court of Malaysia. That means there must be a Master assigned to a junior Judge for a period of 12 months and subject to the satisfaction of the Master to approve the junior judge going onto the bench for his/her 1st sitting.

    What do you think, Honourable Mr.NH Chan?

    Regards,

    Janetlee

  11. Loyar Bagus

    MatTop,

    I am afraid that you may have missed my point. I am taking issue with Mr Chan's point that "the Sultan has no explicit power to dismiss an MB under the Perak Constitution," even where Nizar refused to resign. I believe that HRH does have such a power under Cll.(6) and (7).

    If the Menteri Besar has refused to resign where the Clause (6) triggers are present, I believe HRH must have the right to remove the Menteri Besar. Mr Chan does not agree with this.

    While Mr Chan and the High Court agree with HRH's 1992 comments that the role of the Ruler when faced with a dissolution request is "purely formal", on my reading, the language of Clause (6) envisages that HRH MAY refuse the Menteri Besar's request for dissolution and force the resignation of the Executive Council. HRH is then free to nominate Zambry as Menetri Besar under Clause (2)(a), with the Legislative Assembly remaining intact.

    I would also add that the Head of State in Commonwealth countries often retains "reserve powers" to handle such situations where a member of the Executive is acting unconstitutionally. The scope and discretion to exercise such powers are obviously arguable, but I cannot see why HRH and the State should be held hostage to the whims of a Menteri Besar who refuses to play by the rules (as in the Kelantan situation).

    You and Lawyer Lua may well be on solid ground when saying that HRH was not entitled to determine the loss of confidence through interviews at the Palace, but I did not express any views in that respect so do not disagree with you.

  12. Lawyer Lua

    It is the confidence of the Majority that is in issue. It is not difficult to find "the Majority". But where is the "confidence"? Is it not to be found in the head of the Majority? The Majority can talk. The Majority can speak for themselves.Just ask the Majority. No need to guess. No need to determine.

    What Mr NH Chan says is correct:"Obviously the only way to establish that Nizar has lost the confidence of the majority is to ask the members of the Assembly themselves."

    Can the Majority make public their state of mind anywhere they themselves decide? No. They have no choice. Only in the State Assembly.But why? Because:"Obviously, the only way in whuch 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."

  13. I don't think NH Chan has the time to reply to you. No need to ask him lah.

    I thought this is well settled lah. If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assy, then the MB has to tender the resignation of the Exco which of course includes the MB himself.

    Assuming that the MB only tenders his resignation alone, then according to the Amir Kahar v Tun Said Keruak case, the rest of the Exco is deemed to have resigned.

    The only issue is that the determination whether the MB ceases to command the confidence of the majority must be decided by the Leg Assy itself. It should not be decided privately in the compound of the Palace by the Sultan himself. He has no power to do that.

    That is how a 'majority' or 'minority' government could be toppled; by a vote of confidence in the Leg Assy which is in accord with constitutional convention and practices all over the commonwealth.

  14. Loyar Bagus

    Dear Hon Mr Chan,

    You have my gratitude for another thought-provoking and insightful piece. I would like to raise a point with you based on your article.

    I use caps a couple of times below not as "shouting" but only to emphasise a point. I do apologise in advance for this.

    Clause (7) of Article 16 reads that "Subject to Clause (6) a member of the Executive Council other than the Menteri Besar shall hold office at His Royal Highness’ pleasure."

    Clause (6) of Article 16 reads that "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."

    It is clear that under Clause (7), the Menteri Besar is a member of the Executive Council. That cannot be disputed.

    Clause (6) states that:

    – if the Menteri Besar ceases to command the confidence of the Assembly; and

    – if the Menteri Besar requests a dissolution of the Assembly; and

    – HRH refuses to grant the dissolution of the Assembly

    then the Menteri Besar shall tender the resignation of the Executive Council.

    On my reading, this resignation must include his own. The Menteri Besar is a member of the Executive Council. Clause (7), which states that the Menteri Besar does not hold office at HRH's pleasure, is explicitly stated to be subject to Clause (6). Therefore, where the Clause (6) triggers exist, he DOES hold office at HRH's pleasure. As such, where the Clause (6) triggers exist, the Menteri Besar is himself obliged to resign along with his Executive Committee.

    This does not neuter Clause (7) in its entirety, as it would apply under all other circumstances where the Clause (6) triggers are not present.

    Sir, I would appreciate your feedback on my interpretation of these Clauses so that we may progress this discussion.

    Again, I thank you for your work and (hopefully!) taking the time to read my comment.

  15. please come over to my blog and watch my video report on Anwar's sodomy trial

    dari 5,000 yang diharapkan… 150 aje yang datang bersorak

    http://marahku.blogspot.com/2009/07/anwars-sodomy…

  16. aca

    truly Malaysia Boleh, apa pun boleh.

  17. Pingback: Written judgments – Gobbledegook and regurgitation galore « Hornbill Unleashed

  18. mei1

    Have you all seen this? http://www.sun2surf.com/article.cfm?id=35481 (Court: Sultan acted for people and dignity of state)

    What a sickening title, “acted for people & dignity of state???” The sames goes for the “reasons” given…

    Really look forward to reading another intelligent piece from our former CA judge, NH Chan soon.

    Btw, do you think the FC will approve the application for leave to appeal tomorrow?????

  19. ” 5000 harap dan 150 datang saja.”

    I think most malaysians are fed up with this Sodomy trial lah. This is a farcical trial…it is not a prosecution but a political persecution. If some other guys instead of this Anwar, had been the suspect I’m sure the AG Chamber’s officers would have thrown the investigation papers in the waste paper basket. The DPPs who are prosecuting the case are just political dogs and nothing else.

    Like Malaysian judges, malaysian DPPs have no integrity and credibility. Most of our judges and DPPs are malays. But most or almost the smart or intelligent malay students are sponsored by various bodies to study engineering, economics, medicine, accountancy and other related field. Only the average students who don’t get to study the aforementioned courses take up law. To study law you don’t have to study the heavy stuffs like physics, chemistry, pure or appliced maths or even biology.

    To upgrade and to put more brains and credibility in the judiciary and the AG Chambers who are staffed mostly by average malay officers of weak credibility and integrity, perhaps the time has come for the government to sponsor the cream of the malay students to take up law. These students must be told that in 20-25 years time, provided they performed well, they would form the bulk of the senior officers serving in both the judiciary and the AG Chambers. That is the only way to reform the judiciary and the AG Chambers.

    As it is there is not one DPP who dare to stand up and say this sodomy trial is hogwash given the two negative reports by Pushrawi and HKL. This is apart from the statement by Saiful to the Pushrawi doctor that his anus had been intruded by a plastic object.

    Only a foolish and servile DPP would take up instructions from self-serving politicians to go on with the trial.

    After the 1st sodomy, malaysians are fed up with the 2nd. All we see is the stupidity of the AG Chamebr officers.

  20. jungleboy

    After the judicial crisis during MM's time, the judiciary system had gone from bad to worse. Judges (not all) chose to ignore the constitution but to interpret the law with unguided whim and fancy.

  21. bengaun

    I believe the judges mentioned have very limited vocabulary, poor comprehension of English [or just plain dumb to even understand] and words like integrity and competence just dont exist. I’m pretty sure they dont even know what is the meaning of ‘judge’ let alone be appeals judges! Thank God we still have an honourable CHAN to help us see through the terrible judgements and hopefully to give nightmares to the errant judges who are no better than ‘political dogs’…sigh. God Bless Malaysia! Thank u NH CHAN [may the good Lord Bless U].

  22. Amiruddin Haji Abu

    Good judgement must to be executed fairly and seen to be executed fairly.

    Do you see any?
    I don’t understand.
    I don’t feel it.

    My question…..
    Who will judge the judges then?.
    Are they playing GOD here?…
    Or interprete to the interest of certain party?