Notes of Decision in Zambry v Nizar Case (CoA)

These are the notes taken of the Court of Appeal’s Decision in the MB v MB matter delivered orally on 22.5.2009 by Raus Sharif JCA on behalf of the His Lordship, Zainun Ali JCA and Ahmad Maarop JCA. Any mistakes herein are mine.

Firstly, we would like to thank counsel in assisting us to arrive at our decision. The decision is unanimous and these are our views:

1. The granting or withholding of consent to dissolve the State Assembly is a royal prerogative to be exercised by His Royal Highness (HRH).

2. From the facts of this case, the request made by the Respondent (Nizar) to dissolve the State Assembly was made under Article 16(6) of the Perak Constitution, and not under Article 36(2).

3. Under Article 16(6) of the Perak Constitution, upon the exercise of HRH’s royal prerogative to withhold consent for dissolution, the Respondent shall tender his resignation.

4. There is no mandatory, express requirement that provides for a motion of no-confidence to be passed in the State Assembly against the Respondent before he ceases to command the confidence of the majority.

5. The fact that the Respondent has ceased to command the confidence of the majority may be ascertained through extraneous means. We approve the case of Amir Kahar. The case of Stephen Kalong Ningkan, adopted by the learned Judge (High Court), is distinguishable on its facts.

6. HRH was right to make enquiries to satisfy himself whether the Respondent had ceased to command the confidence of the majority before deciding on the Respondent’s request for dissolution.

7. On the facts of the case, it is clear that the Respondent had ceased to command the confidence of the majority thus HRH, in accordance with Article 16(6), was right to appoint the Appellant (Zambry) as Menteri Besar of Perak after being satisfied that the Appellant commanded the confidence of the majority.

8. The learned Judge (High Court) erred in law when interpreting the Perak Constitution. He failed to properly appreciate the evidence rendering his decision clearly wrong.

The appeal is allowed. The orders of the High Court are set aside.

[Exchange between counsel for Nizar and Zambry with the Bench on the issue of costs.]

No order as to cost.

[Exchange between counsel for Nizar and Zambry with the Bench on ancillary matters:

Haji Sulaiman: My Lords and My Lady, I have been instructed to appeal the decision. Due to the urgency of the matter, I pray that Your Lordships and Ladyship supply us with the grounds of judgment as soon as possible.

Raus Sharif JCA: I have tried to prepare the full grounds last night but could not do so. Will supply in a week’s time. What about the application to set aside the stay?

Haji Sulaiman: We leave it to the Court to decide.

Raus Sharif JCA: Isn’t it academic already?

Haji Sulaiman: We are of the view that the Court of Appeal was wrong to grant the stay. To say that we concede is not entirely correct but it has served no purpose anymore. We therefore leave it to Your Lordships and Ladyship to decide. Alternatively, for a Court to to fix a hearing date.

Cecil Abraham: We seek that the application be dismissed.

Raus Sharif JCA: Enclosure 9(a) is dismissed.

Haji Sulaiman: My Lord, it should be struck out as it has not been heard on the merits.

Raus Sharif JCA: Yes. Application struck out.]


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Life's a sufferance. Lawyering a bore. As Edmund continues various escape techniques to be rid of Lord Bobo’s influence, he crusades with UndiMsia! movers to build strange youth love movements around the country. And so he tweets @edmundbon and practises the black magic art of advocacy at www.BONadvocates.com

Posted on 23 May 2009. You can follow any responses to this entry through the RSS 2.0.

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19 Responses to Notes of Decision in Zambry v Nizar Case (CoA)

  1. tiin

    why dont you all refer to this post, see if u could say something?

    http://adamalhabshi.blogspot.com/2009/05/menteri-

  2. non-observer

    Truth must be told lah. If the Judges are not doing their duty according to their judicial oath of office and take instructions from Umno leaders, then they should be personally attacked. Eusoffe Chin is an eg of a notorious CJ who has no qualms saying that he had to do the biddings of his political masters and thus issued instructions to Judges as to how decisions should be made. Just ask Ian Chin and Muhamed Kamil Awang who are brave enough to go public. Are we saying, this practice of telling Judges on how to decide cases has stopped.

    Prof Aziz Bari of UIA said of the CA decisions, "…keputusan itu tidak terlalu memeranjatkan kerana sejak merdeka hanya ada tiga orang hakim yang berani

    membuat keputusan yang tidak menyebelahi parti yang didokong oleh kerajaan pusat.

    Aziz berkata, itu pun keputusan Mahkamah Tinggi dan ada yang memprovok Kerajaan Persekutuan mengisytiharkan darurat.

    Keputusan-keputusan yang menentang Kerajaan Pusat di buat dalam kes Stephen Kalong Ningkan di Sarawak (1966), Joseph Pairin

    Kitingan di Sabah (1986) dan Nizar Jamaluddin di Perak (2008).

    Sejak Februari lalu kebanyakan hakim memberi keputusan yang menyebelahi Umno termasuk keputusan Mahkamah Persekutuan.

    Aziz is merely stating the obvious fact. Most judges are afraid of Umno and compromised their judicial integrity. The sad fact is this; as a malay, I can only name one malay Judge in the Judiciary who is worthy of respect, and he is the newly appointed CA Hishamuddin. Aziz is in the same mould as Hishamuddin. Both are capable and has the judicial integrity of deciding sensitive cases involving Umno based purely on facts and the laws. These are the type of Judges that should be in the Malaysian judiciary; judges who don't take instructions from politicians or their superiors in deciding cases if ever we want to regain the high standard of judicial integrity of the pre1988 era.

    And lastly NH Chan, a well respected and very credible judges himself has called for the removal of the 5 Fed Crt Judges and of Ramly who has not come out with their written judgements. These are not personal attacks but responsible opinions calling for rogue judges to be removed from the judiciary.

  3. Karabum

    I am of the same opinion as "Two_One • May 23, 2009 @6:49 pm" ; as many of the comments carry personal attacks on the judges because their judgement IS NOT SAME AS THAT OF YOUR'S. Well judges decide from facts and evidences presented to them by lawyers arguing the case; so the judgement will be for one party and against for the other party. If there is a miscarriage in your opinion you can always appeal and even at the apex court too if the judgement is not in your favour will you go around codemning the judges or will you be matured enough to ponder whether dissenting opinions is acceptable. So let us all be resposible citizens giving our opinions and condemn others based on our prejudices. Honestly (IT IS MY OPINION ONLY) All politicians dont have a soul they only see themselves as saviours of the society so usually I dont pay much attention to them BUT then we have no choice but to elect them to represent us ( in this case choosing of the lesser devil).I would propose (just a thought) in the next 13th GE we spoilt the vote meaning we go to the poll and write the persons name not necessarily the candidates without crossing and see what happens.What i am trying to say is if the electorate does not choose the candidate standing; what then will happen. Can this be a reminder to our politicians that they are not upto the mark I just readers out there will sugest way to improve the morality of our politicians.

  4. non-observer

    CA Judges are playing politics just to keep Zambri in power.

    What is next? Zambri will meet Sultan to dissolve Assy. Fed Crt then will sit and overturned CA's decision. By then it is pure academic.

    If Fed Crt didn't overturn CA's decision, Najib can be removed via SMS poll of Parliamentarians or by just tendering their individual/collective statutory declaration.

    It's all a polical game which the CA Judges are playing. They deserved to be attacked personally. They sold their soul and body to the devils.

  5. Adam

    The court has no jurisdiction over the legislature per se according to the constitution so how did the CA judges came up with their judgement.

    Damned sad to see learned judges betraying their duty as judges of appeal.

  6. Yeah, I agree. We should not insist that the vote be taken at the Assembly.

    Parliamentary Votes by SMS Valid, says Court
    http://juslo.blogspot.com/2009/05/parliamentary-v

  7. Yvonne Young

    I have to respect the decision of the COA. However, it is difficult to accept, based on the notes, that-

    a) for a case of such importance, the decision can be made in such a hasty and undignified manner, and

    b) the decision seems to be based on the fact that the no-confidence of the majority can "be ascertained through extraneous means".

    The "extraneous means" employed by BN lacked the necessary transparency and integrity. How can such means be acceptable?

  8. Two_One

    Legal interpretation is subjective. There can be more than one interpretation for one circumstances. I'm sure we all can agree on that. I would have expected the laymen not to understand this but when the legally educated community start to attack the Judiciary on a personal basis, instead of a pure legal argument, rest assured that the high times of the Judiciary will never be revived. if officers of the court do not have the right court ethics, who else can the Judiciary depend? some of you attack the judges as though you know them personally JUST BECAUSE they have a different legal interpretation of the law. Criticising judgment of the court is always welcomed but i think it is going to far when the judge is attacked on a personal basis.

  9. Lama Su

    Perhaps the winning candidates in next general election will be determined by the courts, not by the rakyat or the ballot box.

  10. felix frankfurter

    What is said about the "fact" that Ir Ahmad Nizar Jamaluddin has incurred upon himself a vote of no confidence upon by an Assembly of the ADUN of the State of Perak has NOT and NEVER come into existence in time and space.

    That ANYBODY who has taken "extraneous means" to incur or imply that Ir Ahmad Nizar Jamaluddin suffers from a Vote of No Confidence, is committing a serious breach of his /her NEURONIC cells, they all become "extra-legal"[ ie. going beyond the limits (hadd in Arabic Deontic Logic)].

    When someone commits an "extra-legal" step that someone becomes ILLOGICAL, to say the least. In other words, one no longer adheres to the TRUTH & REALITY ,including the REAL meaning.

    It tantamounts to ERRONEOUS judgement and this is a condition of neurotic judgements leading to ethical and moral impediments.

    [NB. One reason why the great Prof. Nicholas Rescher is fond of Arabic Logic as found in their Islamic Jurisprudence and al Ghazali encourages Muslims judges to learn basic Logic #101 but always begin with CERTAINTY …get the epistemics right from the start]

  11. mei1

    And what's going to happen next is…..

    http://cetusan-hati.blogspot.com/2009/05/keputusa

    "Maklumat selanjutnya ialah pembubaran DUN Perak dalam masa terdekat, selepas Mesyuarat Majlis BN sekali lagi Isnin atau Selasa ini."

    And a good question from Husam:

    "Adakah negara kita sudah bersedia menerima hakikat kemungkinan perubahan teraju kepimpinan melalui proses tabung uji di luar rahim iatu Dewan Rakyat atau DUN seperti yang difahami sebelum ini? Khususnya Najib, sudahkah bersedia untuk Ahli Dewan Rakyat mengumpulkan senarai bahawa mereka sudah hilang kepercayaan kepada beliau dan Agung boleh dengan itu melantik PM yang baru tanpa proses Dewan Rakyat?"

  12. BE TRUE UNTO SELF

    When any judge is really true to himself

    He's not afraid of being left on the shelf

    Knowing eventually he will be restored and shall

    Be praised not cursed and condemned to be in a shell

    (C) Samuel Goh Kim Eng – 230509
    http://MotivationInMotion.blogspot.com
    Sat. 23rd May 2009.

  13. mei1

    observer, thanks for the explanation but the problem is how many independent, impartial & high principle judges do we have?? Remember the following as said by former CA judge, N.H.Chan?

    http://mt.m2day.org/2008/content/view/21208/84/ (N.H. Chan: An inconvenient judge)

    Q: Unlike many former judges, you have been very vocal in your criticisms against the judiciary. What drives you?

    A: In the first place, I am not against the judiciary. I am sure there are some good judges around, only they have not manifested themselves in the present constitutional, should I say, crisis in Perak.

    I expected James Foong JCA (as he then was, he is now a Federal Court judge) to do the right thing but he failed to do that. I suppose it takes great courage for a Court of Appeal judge who sat as a winger in the Federal Court to give a dissenting judgment.

    Now, back to your question. When I became a judge I had to be true to my calling which is to know that the essence of justice is fair trial and the duty of the judge is to administer it according to law.

    Lord Devlin in his book “The Judge”, wrote on page 4: “…impartiality and the appearance of it are the supreme judicial virtues. It is the verdict that matters, and if it is incorrupt, it is acceptable. To be incorrupt it must bear the stamp of a fair trial.”

    And at page 85 he said: “The first — ought one to say the whole — duty of the judge is to administer justice according to law.”

    Back to page 3, the book said: “What is the function of the judge? Professor Jaffe has a phrase for it — 'the disinterested application of known law' (Jaffe in his book “English and American Judges as Lawmakers”, page 13)”

    This means that the judge's only duty is to do justice in the disinterested application of known law. Known law means basic law and the term includes both common law and statute law.

    The judge who gives the right judgment but does not appear to be impartial is useless to the judicial process. After that, the judge's whole duty or function is to decide the case according to law on the admissible evidence before him.

    And what do you call a judge who does not administer justice according to law? A renegade judge? So now you know why I am so vocal when I admonish the errant judges who did not apply unambiguous law as it stands.

  14. From this day forth, The Kangaroo Courts of Malaysia is hereby declared & to be named the Kandang Lembu Court under the Malaysian Judiciary, reason being in Malaysia, lembus can't even hop freely like the kangaroos in Australia.

    They, the Lembu Judges, being hooked by their nose to UMNOBN cronies, therefore can only make & decide according to the whims & fancies of master-corrupt who pays them their gaji-buta.

    The second step is to send those lembu judges to the slaughter house(abbatoir) even if it for the swine is o.k.

    as they have lost sense of fairplay & justice for the Rakyats & non-UMNOBN plaintiff/defendants.

    Democracy for Malaysia!

  15. observer

    contd: My take on minority govt. " A minority government or a minority cabinet is a cabinet of a parliamentary system formed when the governing political party or coalition of parties does not have a majority of overall seats in the parliament. It is also known as a hung parliament. In general, a minority government tends to be less stable than a majority government, because the opposition can always bring down the government with a simple vote of no confidence. A minority government tends to be less arrogant because it often requires compromise between the different parties to ensure the passage of legislation.

    So countries which follow the Westminster system of Parliamentary democracy have had minority gov't. So what if BN had the majority. To bring down the minority gov't you pass a vote of no confidence. These developed countries like UK and Canada don't run to their Governor or Queen to bring down a minority gov't. They passed a no confidence motion against the minority gov't.

    CA judges are re writing their own constitutional procedure or convention; which is plain stupid.

  16. bengaun

    To argue with fools you need to be a bigger fool. With 3 fools on the bench poor wise Sulaiman never had a chance!!!! I pray for BN lawyers who not only betrayed their profession but also lost their legal souls!!!! Hopefully, what man proposes, God disposes will surface in the Federal Court……

  17. observer

    Mahathir's oft-quoted remarks, ' Hang em Judges' is very relevant.

    The CA's decision is not only perversed and perverted but it shows utter lack of understanding of the democratic system of government and of constitutional monarchy.

    I thought in certain countries for example like Canada, there was a minority government. They are allowed to continue in office until and unless they are voted out by the Legislature through the time-tested procedure of moving a motion of no confidence on the floor of the Assy. Surprisingly this was not canvassed by the Nizar's team.

    The CA's judgement defied logic. I think Abdul Aziz is more legally knowledgeable than the three donkeys put together on the CA Bench in the area of constitutional law and of governmet. Abdul Aziz said, 'The Ruler's personal judgement as to who command majority support is totally irrelevant. This must be decided in the Leg Assy where the seat of power of the government is.

    The correct constitutional procedure is this:

    1. First, a motion is filed to pass a vote of no confidence against the MB.

    2. Secondly, the motion is debated by members of the Assy as to why the MB should be removed from office. There must be sound and convincing reasons why the MB should be removed. Was the MB involved in scandals such as sex, corruption, murdering a mongolion or abuse of power or things like that which makes his position as the chief exec untenable; or is he an incompetent administrator which puts the State or country at risk. The MB and his colleagues should also be given the opportunity to defend his government, their performances and himself.

    3. After the motion has been debated, it is put to vote and the MB may request for secret balloting to enable all members to vote on the motion voluntarily without any inducement, threat of promise. They must be able to exercise their vote freely.

    4. Then the vote is counted and if a majority voted in favor of the motion, then only Art 16(6) comes into play. The MB then either tenders the resignation of the Exco or advises the Ruler to dissolve the Assy failing which he shall tender the resignation. If he refuses to do so then a writ of quo warranto may be in order asking him to provide the legal basis in which he still occupies the position of the MB.

    Alignments may change during the secret balloting. What makes anybody including the Sultan and the CA judges cock-sure that the 28 or 31 members including the 3 frogs will vote in favor of the motion of no confidence. With secret balloting, anything can happen. That is why the personal judgement of the Sultan is totally irrelevant. Was this canvassed by Nizar's lawyers. Edmund Bon should do it next time.

    It is only the vote which has been passed in the Assy that counts. For that matter, even to boot the Chairman and Directors of a company, you must filed a resolution and it be debated at an EGM, whatmore an important institution like a State Gov't. It is not like changing a sole proprieter or partnership of a roti-canai shop.

    The CA judges had committed a clanger. Their decision is pure nonsense and shenanigan. No law student should accept this horrible judgement which is far worst than the Boonyanit v Adorna case. It stinks to Hell. Hope the CA Judges would end up there.

  18. We, the Malaysian public and taxpayers, are very unhappy with their verdict.

    We do not pay them peanuts, mind you. We demand their immediate sacking.

  19. lord denning

    The Judges could only speak about their "VIEWs" which is a very bad habit when one is "trying" [trial] ie. suppose to make a judgement :

    1. the 3 judges only make their "VIEWs" known rather than conclusions, meaning they are very afraid to make conclusions. The Judges should make IMPERATIVE or IMPLICATIVE statements not "views".

    2. View #5, "the fact that the Respondent has ceased to command ….may be acertained through extraneous means."

    This view is an ontological absudity !

    why so? the Judges used the word "fact" meaning something has occurred a priori, then, they continue to say, that "fact" has to be proven posteriori by extraneous means.

    Note: "fact" does not entail "truth or reality".

    Note: "extraneous" means beyond the limits of valid premises or assumptions pertaining to that particular "fact".

    There is ceratinly a lack of precision in their "VIEWs", let alone the structure of logic and what more the ontology for each and every "view".

    [NB. btw Lord Denning is a prime example of precision in logic having read Maths at Cambridge and scoring a double 1st.

    Drawing valid conclusions is the 1st hurdle before one emblishes with views to arrive at Judgements , at least the epistemics must be right followed by logic then, wisdom.

    In this case, none of the 3 ontologically are there !]