The Federal Court in Nizar v Zambry: A critique

On 9 February 2010 the Federal Court (Alauddin Mohd Sheriff PCA, Arifin Zakaria CJ (Malaya), Zulkefli Ahmad Makinudin, Mohd Ghazali Mohd Yusoff and Abdul Hamid Embong FCJJ) handed down a unanimous decision on Nizar v Zambry. The judgment of the court was read by Chief Judge, Malaya Arifin Zakaria.

The judgment is 40 pages long on A4 size paper and if you have the stamina to persevere to the end of the judgment you would have realized that these judges of the highest court in the land have, under the pretext of interpretation, decided that the Sultan of Perak has the power to dismiss the incumbent Menteri Besar Nizar when the Laws of the Constitution of Perak does not confer any executive power on the Sultan for so doing.

If the Sultan has no power to dismiss Nizar then, we should ask, how could the Federal Court commit such a devastating error to their reputation as judges of the highest court in the land?

The inability of these judges to pick out the one real point that matters

That is why the ability to pick out the one real point that matters is so important. That is why young advocates learnt how to spot it very early in their career if they are not to bore the judge, whom they are addressing, to tears. This is what Sir Patrick Hastings – he was one of the great advocates of his day before and after World War II – had to say about the ability to seize upon the one vital point that is to be found in any case; see his book Cases in Court, p 333:

“The ability to pick out the one real point of a case is not by itself enough; it is the courage required to seize upon that point to the exclusion of all others that is of real importance.”

The late Lord Justice Salmon in his article, Some Thoughts on the Traditions of the English Bar, was also of the same view. He said:

But remember this, in few cases, however complex, is there usually more than one point that matters. Very seldom are there more than two and never, well hardly ever, more than three. Discover the points that really matter. Stick to them and discard the rest. Nothing is more irritating to a tribunal than the advocate who takes every point possible and impossible. To do so is a very poor form of advocacy because the good points are apt to be swept away with the bad ones. Stick to what matters.

In the case of Nizar v Zambry, the only point that matters in the appeal is whether the Sultan of Perak has any executive power to remove a Menteri Besar who had been appointed by him under Article 16(2)(a).

Any astute lawyer or judge can see at once that there is only one point that matters in the appeal, and that point is whether the Sultan of Perak has any executive power to sack his Menteri Besar and to appoint another to take his place. Yet these five myopic Federal Court judges were unable to see that this is the only point that matters in the appeal when every budding young lawyer knows about it instinctively.

These five myopic judges were lost in a quagmire of confused thinking caused by their own incompetence. They found themselves deep in the forest unable to see the wood for the trees. Does this mean that we have a bunch of incompetent judges who sit in the highest court in the land?

Article IV of The Laws of The Constitution of Perak says, “the Mentri Besar” means the officer appointed by virtue of Article XII. Article XII says:

(1) His Royal Highness shall appoint by instrument under his sign manual and State Seal, a Menteri Besar pursuant to paragraph (a) of Clause (2) of Article XVI.

And paragraph (a) of Clause (2) of Article XVI says:

(1) His Royal Highness shall appoint an Executive Council.

(2) The Executive Council shall be appointed as follows, that is to say -

(a) His Royal Highness 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; and

(b) He shall on the advice of the Mentri Besar appoint not more than ten nor less than four other members from among the members of the Legislative Assembly;

That was how Nizar came to be appointed the Menteri Besar. He was appointed by the Sultan of Perak to be the Menteri Besar by the application of the provision of Article 16(2)(a) of the Constitution of Perak shortly after the State General Election of 2008. The provision of Article 16(2)(a) gives the Sultan of Perak the executive power to appoint a Menteri Besar “who in his judgment is likely to command the confidence of the majority of the members of the Assembly”.

Article XVIII (2) is the only other provision in the State Constitution where the Sultan “may act in his discretion in the performance of the” functions stated in Clause 2 of Article 18. Paragraphs (a) and (b) of Clause 2 read:

(2) His Royal Highness may act in his discretion in the performance of the following functions (in addition to those in the performance of which he may act in his discretion under the Federal Constitution) that is to say -

(a) the appointment of a Mentri Besar,

(b) the withholding of consent to a request for the dissolution of the Legislative assembly,

After the Sultan has appointed a Menteri Besar under Article 16(2)(a), then, has he the executive power to remove him? The answer is definitely no, because the only executive power left for the Sultan in which he “may act in his discretion” – after a Menteri Besar has been appointed under Article 16(2)(a) – in respect of the Menteri Besar can only be found in Article 18(2) (a) and (b). Apart from Article 18(2)(a) and (b) there is no other executive power bestowed on the Sultan concerning the position and status of the Menteri Besar. The Sultan, therefore, has no executive power under the Perak Constitution to remove a Menteri Besar.

Nor has he any power under Article 16(6) and (7) to dismiss or remove him.

Article XVI (6) and (7) say:

(6) If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, … he shall tender the resignation of the Executive Council.

(7) Subject to Clause (6) a member of the Executive Council other than the Mentri Besar shall hold office at His Royal Highness’ pleasure, but any member of the Council may at any time resign his office.

By Clause (6) a Menteri Besar who ceases to command the confidence of the majority of the Legislative Assembly “shall tender the resignation of the Executive Council”. But what if any member of the Executive Council or all of them including the Menteri Besar – for the Menteri Besar is also a member of the Council – were to refuse to resign?

Clause (7) provides the answer to this question. It says, “Subject to Clause (6) a member of the executive Council other than the Mentri Besar shall hold office at His Royal Highness’ pleasure, but any member of the Council may at any time resign his office.”

Clause (7) clearly says that members of the Executive Council hold office at the pleasure of the Sultan. The Sultan can remove them from the office of Executive Councillors if they refuse to resign. But the Menteri Besar, once appointed by the Sultan, does not hold office at the Ruler’s pleasure. Therefore, Nizar, once he had been appointed the Menteri Besar by the application of paragraph (a) of Clause (2) of Article 16, cannot thereafter be removed from office by the Sultan. This is because Clause (7) says the Menteri Besar does not hold office at the pleasure of the Ruler.

Therefore, even if the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, the Sultan has not the executive power to remove him as Menteri Besar. That being the case, the only way to remove a Menteri Besar is to obtain a vote from the Legislative Assembly to remove him. Alternatively, the Sultan may dissolve the Legislative Assembly if requested by the appointed Menteri Besar – who is Nizar as he cannot be removed by the Sultan – to do so under Article 16(6).

Therefore, the legitimate Menteri Besar of Perak is still Nizar, and not Zambry. Then, how could the Federal Court give such a perverse decision in favour of the usurper Zambry when the Constitution of Perak does not confer any executive power on the Sultan for him to do so? This is especially so when Nizar is still in office as the Menteri Besar – a position he still holds in accordance with the law.

Are these Judges docile lions under the throne?

Is it because the judges were docile lions under the throne who are beholden to the monarch?

In What Next in the Law, page 335, Lord Denning tells us that:

It was Francis Bacon in his Essay, Of Judicature, who said:

‘Let judges also remember that Solomon’s throne was supported by lions on both sides; let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.’

According to Francis Bacon (who was Lord Chancellor during the reign of King James I) judges are lions under the throne; being circumspect (it means cautious, prudent or discreet) that is to say, being timid and docile they do not check or oppose any points of sovereignty of the monarch.

Now you can see why the timid lions being circumspect as the monarch’s liege they would rather not check nor oppose any points of the sovereignty of the monarch. ‘Yes, Yes, Yes.’ whimpered the cowardly lions. But why should they be sycophants when Sultan Azlan Shah himself have said that judges are not beholden to Kings, Presidents or Prime Ministers – see Sultan Azlan Shah’s Constitutional Monarchy, Rule of Law and Good Governance, Professional Law Books and Sweet & Maxwell Asia, 2004, p 59:

The judges are not beholden politically to any Government. They owe no loyalty to Ministers. …They are “lions under the throne” but that seat is occupied in their eyes not by Kings, Presidents or Prime Ministers but by the law and their conception of the public interest. It is to that law and to that conception that they owe their allegiance. In that lies their strength.

This quotation comes right from the horse’s mouth, the Sultan of Perak has said it himself that it is to the law that judges owe their allegiance. Therein lies their strength. They are not lions under the throne of Kings, Presidents or Prime Ministers.

*UPDATED 4.30 pm, 19 February 2010 with a link to the Grounds of Judgment. It was downloaded from the Judiciary’s website on Thursday, 18 February 2010. However, as of now, the link to the Judgment is dead. Hence, the document is reproduced here.


Tags: , , , ,

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 19 February 2010. You can follow any responses to this entry through the RSS 2.0.

Read more articles posted by NH Chan.

Read this first: LB Terms of Use

18 Responses to The Federal Court in Nizar v Zambry: A critique

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

  2. Pingback: The Monarch Has No Power to Sack Any Member of The Cabinet Exco « Hornbill Unleashed

  3. Pingback: Can King / Sultan / Governor sack Prime Minister, Menteri Besar, Chief Minister : Dr. John Brian Anthony ~ www.dayakbaru.com

  4. Pingback: The Monarch Has No Power to Sack Any Member of The Cabinet Exco | LoyarBurok

  5. jimmy low

    enlightening articles!

  6. Mazlan

    HRH is a constitutional monarch. The election and formation of Government is the Rakyat perogative. The fate of PR Government and the MB should be be decided by the Rakyat in the assembly. This simple rule if adhered to will make our country great.

  7. Loyar Bagus

    Dear Mr Chan,

    We have already had a detailed discussion into this case and as it has finally exhausted its run of appeals, I would just like to make a final point on this.

    1. You interpret Arts 16(6) and (7) as saying that due to Art 16(7), HRH cannot sack MB. However, on a plain reading, I believe this clause lends itself to another interpretation. According to Art 16(7), the Exco (and not the MB) holds office at HRH's pleasure. That is not in dispute. This is subject to Art 16(6), which requires the MB to hand in the resignation of the Exco where the MB has lost the confidence of the Assembly. The definition of Exco includes the MB except where expressly provided. Therefore, in my alternative interpretation:

    (i) Exco (except MB) holds office at the pleasure of HRH (Art 16(6));

    (ii) except where the entire Exco (including MB) must resign via the MB when the MB has lost the Assembly's confidence (Art 16(7)). He is obliged by the Constitution to resign. Failure to comply with Art 16(6) cannot and should not result in a stalemate. Indeed, as you point out, Art 16(2) states that HRH "shall appoint an MB WHO IN HIS JUDGMENT IS LIKELY TO COMMAND THE CONFIDENCE OF THE MAJORITY OF THE MEMBERS OF THE ASSEMBLY". (emphasis mine). HRH has heard it from the horse's mouth.

    2. I would also like to dispute your argument that because HRH's discretion is restricted to the matters in Art 18(2)(a) and (b), HRH therefore has no power to sack the MB at all. I do not believe there is any "discretion" involved here. HRH had established the loss of confidence in Nizar by interviewing the various ADUNs (I leave aside the issue of the integrity of the defectors). HRH is not exercising a "discretion" to sack Nizar, in the pure sense of that word, because he did not merely choose to do so. A perfect illustration of a Ruler exercising discretion would be the Terengganu MB appointment in 2008. Idris Jusoh had the confidence of the BN Assembly members, a majoity in the Assembly. HRH Sultan of Terengganu instead appointed Ahmad Said over the objections of the Assembly and the Federal Government.

    If one accepts that Nizar had lost the confidence of the Assembly (on which we disagree), Nizar was obliged by the Constitution to resign; his refusal was an unconstitutional act. As such, HRH was merely acting in the exercise of his constitutional prerogative (and not discretion) to ensure that the incumbent Menteri Besar at all times commands the confidence of the majority in the Assembly.

    Sir, like you, I am a proud Ipohite. I was an admirer of the Nizar administration while it lasted. I have been following this matter with interest but it has cost the people a lot in terms of resources and goodwill. I am glad that Nizar has chosen to act in opposition (as opposed to holding duplicate proceedings) and will let the people decide his fate in the next election. It is time for all of us to move on with our lives and ensure that our voice is heard in the next election, where hopefully, both sides will choose candidates who acknowledge the primacy of the rakyat's voice.

  8. Termite

    These judges are in fact competent if they preside other cases because they use their head well. But when it comes to cases involving UMNO, they become extraordinarily stupid because they do not use their head but their knees. That is the reason why UMNO chose their crony to head the judiciary. Even people who are not legally trained know that the Sultan cannot dismiss the MB, do you think these 5 idiots/moron are so ignorant of the law with their donkey years of experiences. They simply donated the post of MB to Najib/UMNO, fullstop! May they join Augustine Paul soon.

  9. ServiceB4Self

    It is funny why Nizar refused to comply with the constitution to resign under Article XVI (6) when HRH Sultan of Perak refused to dissolve the state legislature especially when the constitution makes it mandatory by the word "shall resign".

    Are we saying Nizar has the absolute right to refuse to comply with the State Constitution?

    What do we do when someone refused to comply with the expressed requirements of the supreme law of the state of Perak? Aren't we missing something here?

  10. MyBlog

    Some people think that there is a loophole/problem with the constitution. If the MB does not resign then he has to seek a vote of no confidence or the Sultan can direct him to do so by ordering a session of the State Assembly. And if the MB still doesn't resign after loosing confidence in the state assembly again it is a stalemate because you cant force him.

    But then wait a second, there is a solution if the MB doesn't want to resign, the Sultan can call for a dissolution to the state assembly and then the MB will have no choice and this is the right solution.

    And let us not be mistaken that this is a loophole in the constitution. The framers of the constitution consciously framed the constitution in this manner so as to avoid the very situation we have in Perak. What an irony but if you don't go by the letter of the law then you can do anything you like and the courts are simply there to legitimize these illegal moves.

  11. ajajal

    I am no where knowledgeable in Laws after reading this it makes me

    think that this five judges do not understand laws or just play around to show they were programmed to fixed up the judgment.

  12. OmegaMan

    Judge NH Chan has once again educated the masses with his knowledge of the law.

    Well done, NH, we could do with more critique and less of those numb-skull judges who intend to corrupt our constitution and hand out judgements that are inconsistent, unfair and pervert justice for their lord and master in Putrajaya.

  13. ajc

    For being incompetant is one thing, but to purposely be incompetent, that will spell a lot ill,bad,sin,guilt and a lot of bad.

    We await of course judgments on TBH, Anwar and many others cases but might just be forgone conclusion.

    May God save our country.

    The RAKYAT awaits.

  14. vanaja

    The ruler is the docile lion under the PM's seat!!! Did you not read RPK's article on the deals made. Sultan is after all human. His actions have spoken louder than his words

  15. alrawa

    Just wondering- could it be the RULER that is the docile lion under the PM's seat.

  16. Tor Spin

    Thank you, Sir, for once again expressing so clearly the point at issue.

    The few sensible decisions on political matters from our first courts all seemed destined to be reversed on appeal by unbelievable higher determinations. What to do?

    The Hall of Shame is one step.

  17. Just Ice For All

    I was eagerly waiting for your critique and I'm not disappointed. The great NH Chan strikes again! The Federal Court judges have regressed our constitutional law by 2 centuries and resurrected feudalism. All political blocs must now set up a royalty lobbying division.

  18. Pingback: uberVU - social comments