Perak Constitutional Crisis: Wake Up and Smell the Carcass

As a Perakian, I will always remember 11.5.2009 as the day when justice and truth alighted briefly for a moment in a Kuala Lumpur High Court. It was the day when, against all expectations, the Kuala Lumpur High Court allowed Nizar’s application for several declaratory orders, amongst others, an order declaring him as the rightful Menteri Besar of Perak. The Judge delivered a reasoned and legally sound written judgment. It has been reportedly and analyzed widely already so there is no need for me to do the same. What I would like to reflect upon here is the aftermath of that decision.

On 12.5.2009, Zambry appealed the High Court decision to the Court of Appeal. He also filed an application for an interim stay the High Court order pending the disposal of his appeal before the Court of Appeal. The purpose and intention of that interim stay application was to prevent Nizar from resuming his duty as the Menteri Besar notwithstanding the decision of the Kuala Lumpur High Court. Zambry’s ex-parte stay application, without any surprise, was allowed by the Court of Appeal, by a single judge.

Before discussing the Court of Appeal stay order, I think it necessary to comment on the speed in which Zambry’s stay application was heard and thereafter granted. Zambry filed his application for stay of the Kuala Lumpur High Court decision on 12.5.2009. Amazingly, his application was scheduled to be heard at 11.30am on the same day, i.e. approximately 2 hours after the stay application was filed. In both my experience and many of my learned friends, an application is just not heard that quickly ordinarily or even exceptionally, with a certificate of urgency. None of us have ever heard an application being sealed, issued and fixed for hearing before a judge (be it at any level – Magistrates all the way up to the Federal Court), heard and the application allowed in less than 2 1/2 hours. If the courts were ordinarily that efficient, I would have no cause for complaint. But it just doesn’t happen that way usually.

This glaring efficiency would not have been so bad if it applied to the opposing party as well. However, when Nizar filed his application to set aside the ex-parte stay order he did not get the same efficient service. His application was filed on 13.5.2009, a day after the stay order was granted. Since Zambry’s application was heard and disposed off with such efficiency, one would naturally think that Nizar’s would receive the same treatment. After all, it is a fundamental rule of law that you treat like parties equally. Both of them are litigants and so both should be treated fairly and so equally. But Nizar’s application was fixed four days after on 18.5.2009. To add insult to injury, on 15.5.2009, Nizar’s solicitors were informed that the Court of Appeal pushed the hearing date later to 21.5.2009, which was the same day as the substantive appeal itself. This naturally resulted in Nizar’s application being ‘academic’ or to call a spade a spade, useless. The present Chief Justice is fond of saying, justice delayed is justice denied. Well, this was precisely such an instance.

The difference in treatment between Zambry’s and Nizar’s applications are like heaven and hell. The delay on part of the Court of Appeal to hear Nizar’s setting aside application, deliberate or otherwise, also provokes one to wonder whether there were hidden hands hell-bent on preventing Nizar from continuing to perform his duty as a Menteri Besar despite the High Court decision which was made a day earlier?

Another curious issue is exceptional instance of the granting of the stay order by a single Court of Appeal Judge, Ramly Ali JCA, who was elevated barely a month prior to his order. Furthermore, his Lordship’s decision has been widely criticized in the legal fraternity as being surreal if not downright perverse for this simple reason: it is an established principle of law that declaratory orders cannot be stayed.

The nature of the orders made by the High Court in the present case is declaratory in nature. It must be understood that “declaratory orders” are different from orders which are “executory” in nature. “Declaratory orders”, as the name suggests, merely declare:

(i) the true interpretation of the law or document; and

(ii) the legal position or rights between the parties.

The effect of that is that declaratory orders does not create or confer rights. Such an order merely pronounces the actual legal position and/or factual scenario in question. For example, you may seek a declaration that X is your son. If you are successful in your application, then the court will declare that X is your son. How do you stay an order like that? For argument’s sake, let’s say we do. Does that mean X is not your son if the opposing party grants a stay of the order and throughout the duration of the order? No. And that is why courts do not grant a stay order on a declaratory order. It’s a nonsensical thing to do. Furthermore, another distinctive feature of a declaratory order is that once they are pronounced by the Court, the legal rights or legal positions vis-a-vis the parties are settled. No further legal steps or proceedings need to follow.

‘Executory orders’ on the other hand declare the right of the parties and then proceed to order the defendant to act in a particular way, e.g. to pay damages or money owed and such orders can be enforced by execution proceedings if disobeyed.

In the present case, the orders made clearly did not create or confer any rights upon Nizar to be the Menteri Besar as he has always been the Menteri Besar. Instead, the order merely indicates the position as it has always been i.e. that Nizar is Menteri Besar of Perak at all material times. The High Court order did not confer something which did not exist in the first place.

In view of the unique nature of declaratory orders as described above, where an appeal is lodged against a declaratory order, there can be no stay of proceedings, legally or sensibly. Now even assuming for the briefest moment you can imagine, that the Court of Appeal Judge was correct in granting the stay order, the next question the Judge should ask himself is whether the stay order would achieve any legal and tangible purpose or is it an exercise in futility? Does the stay order confer power upon Zambry for him to perpetuate his misguided notion that he is the Menteri Besar of Perak? Can the Court of Appeal grant a stay over a constitutional matter?

The short answer is no, especially in relation to constitutional disputes. The granting of a stay order over a constitutional matter is an exercise in futility. Even Fiji, a country which is far less developed than Malaysia, applied the principle correctly as can be seen in the case of Registration Officer for the Suva City Fijian Urban Constituency v. James Michael Ah Koy (unreported) Fiji Court of Appeal Civil Appeal No. 23 of 1992, where the Fiji Court of Appeal held;-

“Whilst the pending appeal undoubtedly involves a question of great public importance of a constitutional nature, the fact is that unless and until the Supreme Court overturns the Court of Appeal decision, that decision must stand and it binds the parties to the proceedings.”

 and further on :

“Orderly functioning of democracy depends on the relevant authorities taking cognisance of and giving effect to Court Orders be they executive or declaratory in nature. Unless a case is made out to the contrary (and the onus is on the Applicant to show that exceptional grounds exist) the successful party must be allowed to enjoy the fruits of his success.”

In the present case, since the High Court had declared that Nizar is the rightful Menteri Besar of Perak, there is no procedure that empowers the court to stay or invalidate that declaration pending the hearing of an appeal. Therefore, I would argue that the single Judge of the Court of Appeal erred in law in granting the stay order. Additionally, in granting the stay order, the judge had conferred upon Zambry the false impression that the latter is the Menteri Besar, when in law the High Court had already declared to him to be otherwise. It is akin to granting Zambry with the “emperor’s invisible new clothes” – which has caused him to act under the misguided belief that he has the authority of the Menteri Besar, when in actual fact, he is parading himself in Perak ‘stark naked’.

However, whatever I have written above is not a live issue anymore since the Court of Appeal had ruled in favour of Zambry. Some quarters claim that the Court of Appeal decision was good because it took and was guided by “national interest” considerations. What is clear to me that such claims tend to leave out the word “Barisan” before that phrase. And if one were to analyse the aftermath of the Kuala Lumpur High Court decision, one cannot stop from smelling a foul stench of the carcass of the Perak Constitution. I sincerely hope that the rakyat will wake up!!!