Do take the trouble to understand before you find fault with the judges of the Court of Appeal

Before you go about judging the judges of the Court of Appeal on their five minute oral decision which they handed down on Friday, May 22, 2009, please bear in mind the wise words of the most liberal of American judges, judge Learned Hand who once wrote – The Spirit of Liberty, p 110:

… while it is proper that the people should find fault when the judges fail, it is only reasonable that they should recognise the difficulties. … Let them be severely brought to book, when they go wrong, but by those who will take the trouble to understand.

I shall now try to help you take the trouble to understand the oral findings of the Court of Appeal.

First of all we will look at what the New Straits Times, Saturday, May 23, 2009 has to say:

PUTRAJAYA … In allowing the appeal by Datuk Seri Zambry Abdul Kadir that he was constitutionally appointed as menteri besar by the sultan on Feb 6, Court of Appeal judge Datuk Md Raus Sharif said there was no clear provision in the state Constitution that a vote of no confidence against Nizar must be taken in the assembly.

Raus, who sat with Datuk Zainun Ali and Datuk Ahmad Maarop to hear submissions on Thursday, said Nizar had on February 4 made a request to the Sultan to dissolve the assembly under Article 16 (6) because he no longer enjoyed the support of the majority assemblymen.

He said Nizar had no choice but to resign once the ruler declined to dissolve the assembly.

“There is no mandatory or express requirement in the Perak Constitution for a vote of no confidence to be taken in the legislative assembly,” Raus said in a five-minute oral ruling before a packed court room.

That was all. That is the gravamen of the five minute decision.

What the Court of Appeal has said above as reported in the New Straits Times had also been said by Mr Justice Abdul Aziz in the High Court in his well-considered judgment – 78 pages on A4 paper. This is what the High Court judge said, at p 30:

It is not in dispute that His Royal Highness had exercised the royal prerogative in this case pursuant to Article XVI(2)(a) and (6) of the Perak’s State Constitution. However the applicant [Nizar] is not asking the Court to review His Royal Highness’ prerogative to appoint the respondent [Zambry] as MB Perak or His Royal Highness’ prerogative to withhold consent to dissolve the State Legislative Assembly. The applicant concedes that the two royal prerogatives are not subject to review and non justiciable. That is the reason, the applicant [Nizar] said, His Royal Highness was not made a party to the present disputes.

And at pp 36, 37 Abdul Aziz J also said:

Under Article XVI(2) of the Perak’s State Constitution His Royal Highness shall appoint as Menteri Besar a member of the State Legislative Assembly who in His Royal Highness’ judgment is likely to command the confidence of the majority of the members of the State Legislative Assembly. …

I never had any doubt that the exercise of the royal prerogative to appoint a Menteri Besar pursuant to Article XVI(2) Perak’s State Constitution is solely based on personal judgment of His Royal Highness and that His Royal Highness may resort to any means in order to satisfy himself and accordingly to form his judgment as to whom who is likely to command the confidence of the majority of the State Legislative Assembly that he can be appointed as the Menteri Besar to lead the Executive Council.

I also have no doubt that His Royal Highness has absolute discretion with regard to the appointment of a Menteri Besar and the withholding of consent to a request for the dissolution of the State Legislative Assembly. This is plain and obvious from the reading of Article XVIII (1) and (2) (a) and (b) of Perak’s State Constitution.

The High Court judge even agreed, at p 37:

… that if the Menteri Besar ceases to command the confidence of the majority of the members of the State Legislative Assembly, he shall tender the resignation of the Executive Council, …

So then, how could the Court of Appeal overrule the judgment of the High Court when the higher court substantially agrees with the judgment of the High Court? The newspaper report is not very clear on this point as we are still unaware of the reason for overruling the judgment of the High Court judge.

However, according to the report in the New Straits Times, Raus JCA did say:

There is no mandatory or express requirement in the Perak Constitution for a vote of no confidence to be taken in the legislative assembly.

So what if there is no provision for a vote of no confidence in the Legislative Assembly.

The High Court had found that Nizar is still the Menteri Besar. To overrule the decision of the High Court, the Court of Appeal must explain why the judge of the High Court was wrong in finding that Nizar is the Menteri Besar.

The newspaper had even suggested that it could be implied in the ruling of the Court of Appeal that the ruler had sacked the incumbent Menteri Besar Nizar:

The unanimous Court of Appeal ruling yesterday seems to suggest that a head of state can sack the incumbent head of government once it was determined that the politician ceased to command the confidence of a majority of the elected representatives.

The newspaper is wrong. That was not the finding of the Court of Appeal.

In any case the monarch has no power to dismiss a Menteri Besar – there is no provision for it in the Perak Constitution.

The trial judge Abdul Aziz J in his judgment has explained why he found that Nizar is still the Menteri Besar. This is how he puts it – see p 54 of his judgment:

It is true the request may be made only under two provisions of Perak’s State Constitution i.e. Article XVI(6) and Article XXXVI(1) and (2). But the circumstances under which the request can be made is unlimited. The request under Article XVI(6) is specific to a situation where the Menteri Besar ceases to command the confidence of the majority in the State Legislative Assembly; whereas under Article XXXVI(1) and (2), [the] situation is unlimited. It is up to the Menteri Besar to choose his time to make the request. However once a request is made under whichever of the two provisions, it is entirely up to His Royal Highness’ discretion whether to grant or [not to grant] the consent to dissolve the State Legislative Assembly.

Then at pp 56-58 the High Court judge comes to this conclusion:

In my view it is alright if His Highness takes upon himself to determine who commands the confidence of the majority in the State Legislative Assembly that he can appoint as the Menteri Besar. Such determination however is only good for the purpose of appointing a Menteri Besar pursuant to Article XVI(2)(a) Perak State Constitution. This is so because that provision speaks of ‘who in his judgment is likely to command the confidence of the majority’. The language used therein requires the exercise of a personal judgment on His Royal Highness.

But the same thing cannot be said with regard to Article XVI(6) in deciding whether the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly. In this case His Royal Highness, through his enquiries has judged that the respondent [Zambry] has the support of the majority. But that finding does not necessarily mean His Royal Highness can form an opinion that the applicant [Nizar] ceases to command the confidence of the majority of the members of the legislative assembly. One reason for this is that the expression ‘in his judgment’ is not used in Article XVI(6). … On this premise, I am of the view that just because His Royal Highness had formed a judgment that the respondent [Zambry] is likely to command the confidence of the majority for the purpose of Article XVI(2)(a) to appoint the respondent [Zambry] as Menteri Besar it does not mean that His Royal Highness’ opinion or judgment is applicable in deciding that the applicant [Nizar] ceases to command the confidence of the majority of the members of the Legislative Assembly. In another word, one cannot say that because His Royal Highness has judged that the respondent [Zambry] is likely to command the confidence of the majority in the Legislative Assembly therefore the applicant [Nizar] ceases to command the confidence of the majority of the members of the Legislative Assembly. I would say that the personal opinion or judgment of His Royal Highness is irrelevant to the construction of Article XVI(6). The [other] reason is that Article XVI(5) Perak State Constitution states that the Executive Council shall be collectively responsible to the Legislative Assembly. Under Article XVI(2)(a) the Menteri Besar is appointed to preside over the Executive Council. Article XVI(6) speaks of “If the Menteri Besar ceases to command the confidence of the majority of the members of the legislative Assembly …”. Reading these three provisions in Article XVI Perak State Constitution it is logical and in fact Article XVI(6) requires it to be so, that it is the Legislative Assembly that determines whether it has confidence in the Menteri Besar as the Head of the Executive Council. The Legislative Assembly may make the determination through a vote of no confidence against the Menteri Besar.

It seems to us ordinary folk that the Court of Appeal has missed the point. They decided that Zambry was properly appointed Menteri Besar under Article XVI(6). That is not correct – he could only be appointed under Article XVI(2)(a). Since there cannot be two Menteri Besar and Nizar the incumbent Menteri Besar has not resigned and, further, since the Legislative Assembly did not decide if he has ceased to command the confidence of the majority of the members of the assembly, Nizar, unquestionably, is still the Menteri Besar of Perak.

Nizar’s case was that Article XVI(6) speaks of “(i)f the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly”. The poser is who is to decide “(i)f the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly” under Article XVI(6)? Certainly not the ruler because the phrase “in his judgment” – which is used in Article XVI(2)(a) – is not used in Article XVI(6). If it is not to be the ruler then who is to decide if the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly?

The answer is in Article XVI(6) itself – only the Legislative Assembly itself could decide if the Menteri Besar ceases to command the confidence of the majority of the members of the assembly.

Article XVI(6) clearly states that the Menteri Besar who no longer commands the confidence of the majority of the Legislative Assembly “shall tender the resignation of the Executive Council”. This has to be done “unless at his [the Menteri Besar’s] request His Royal Highness dissolves the Legislative Assembly”. But Menteri Besar Nizar could not admit that he ceases to command the confidence of the majority of the members of the Legislative Assembly because he would not know until a vote has been taken at the assembly to determine so. Only the assembly itself would know if a vote is taken to determine whether the Menteri Besar has lost the confidence of the majority of the members of the assembly.

Now that you have understood the five minute decision of the Court of Appeal as well as the well-considered judgment of the trial judge, you should be able to severely bring to book the judges of this Court of Appeal since you are now aware if they have done wrong.

Before I sign off, I wish to say a few nice words to the High Court judge. Mr Justice Abdul Aziz Abdul Rahim is a fantastic judge. The judgment, especially the piece on the interpretation of Article XVI(6), is so good that it has persuaded me to change my mind on my view of Article XVI(6). If you remember my first article, I have expressed an opinion on Article XVI(6). Now I know I was wrong – and I have to thank Abdul Aziz J for showing me the way.

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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 26 May 2009. You can follow any responses to this entry through the RSS 2.0.

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15 Responses to Do take the trouble to understand before you find fault with the judges of the Court of Appeal

  1. Ramin A.

    hope one day there will be a mechanism to control or judge the judges. a thorn gets sharper pointed when matures.

    Nawarizal, well done my friend.

  2. xueryna

    ther’s no provisions in fed. conts. statig that the sultan must ask for the vote of no confidence to be exercised in this situation. read the fed. conts. yourselves.

    the sultan action was right and he was a judge too. so he’s not that stupid.

    the law is cold i know. but it is the highest law in the country(Fed.Conts.). you guys may think it is unfair but in this case, it was done rightly. there’s no abuse of power or misinterpretations of law.

    so thats it. stop being so emotional.

    let the lawyers and judges do their work since they are more competent and qualified to do so.

    ciao.

  3. Adam

    NotAloyar,

    Nizar did not lie. As far as PKR was concerned, the 3 frogs had resigned as accepted by the Speaker. It was the EC who did not agree to the resignations and the issue has to be referred to the courts.

    At that point in time, it was 28 vs 28 Aduns which is a deadlock. The logical thing to do was to call for the by-elections for the 3 state seats which PKR has the advantage but they wanted a fresh mandate and requested for new state elections instead which would be a sensible and fair decision even for the BN.

    From a layman's point of view, BN is adamant in clinging to power while PKR wants to give Perakians the chance to elect the government of their choice.

    You decide who is more power crazy in this case and you will know who wants to serve the Rakyat and who wants to serve only themselves.

  4. NotAloyar

    I am not a loyar so cannot write like one. What i understand from the case is that Nizar lied when he said he did not know whether he no longer command the majority in the DUN when he went to the Sultan to make the request for the DUN to be dissolved.

    The simple logic is why would he, the sitting Menteri Besar, would request for the dissolution of the assembly if he did not know that he has loss the majority support of the assembly? Once this is determined, then it is true that the only alternative he has once the royal highness rejected his request is to tender his resignation. If he did not do it then it is deemed that he has done so. The royal highness also made this clear when issuing the press release.

  5. Nawarizal Mohd Yusop

    Before you go about judging the judges of the Court of Appeal on their five minute oral decision which they handed down on Friday, May 22, 2009, please bear in mind the wise words of the most liberal of American judges, judge Learned Hand who once wrote – The Spirit of Liberty, p 110:

    … while it is proper that the people should find fault when the judges fail, it is only reasonable that they should recognise the difficulties. … Let them be severely brought to book, when they go wrong, but by those who will take the trouble to understand.

    I shall now try to help you take the trouble to understand the oral findings of the Court of Appeal. First of all we will look at what the New Straits Times, Saturday. May 23, 2009 has to say:

    PUTRAJAYA. … In allowing the appeal by Datuk Seri Zambry Abdul Kadir that he was constitutionally appointed as menteri besar by the sultan on Feb 6, Court of Appeal judge Datuk Md Raus Sharif said there was no clear provision in the state Constitution that a vote of no confidence against Nizar must be taken in the assembly.

    Raus, who sat with Datuk Zainun Ali and Datuk Ahmad Maarop to hear submissions on Thursday, said Nizar had on February 4 made a request to the sultan to dissolve the assembly under Article 16 (6) because he no longer enjoyed the support of the majority assemblymen.

    He said Nizar had no choice but to resign once the ruler declined to dissolve the assembly.

    “There is no mandatory or express requirement in the Perak Constitution for a vote of no confidence to be taken in the legislative assembly,” Raus said in a five-minute oral ruling before a packed court room.

    That was all. That is the gravamen of the five minute decision. What the Court of Appeal has said above as reported in the New Straits Times had also been said by Mr Justice Abdul Aziz in the High Court in his well considered judgment – 78 pages on A4 paper. This is what the High Court judge said, at p 30:

    It is not in dispute that His Royal Highness had exercised the royal prerogative in this case pursuant to Article XVI (2) (a) and (6) of the Perak?s State Constitution. However the applicant [Nizar] is not asking the Court to review His Royal Highness? prerogative to appoint the respondent [Zambry] as MB Perak or His Royal Highness? prerogative to withhold consent to dissolve the State Legislative Assembly. The applicant concedes that the two royal prerogatives are not subject to review and non justiciable. That is the reason, the applicant [Nizar] said, His Royal Highness was not made a party to the present disputes.

    16 (2)(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

    THE ABOVE IS ART. 16 (2) (a). READ IT AS A LIVING CREATURE, YOU WILL SEE THAT;

    1. THE SULTAN MUST SEE WHO IS LIKELY TO COMMAND THE LEAD IN DUN

    2. THAT THE MEANS TO SEE WHO IS LIKELY MUST BE DETERMINED THROUGH THE BEST MEANS AVAILABLE. SINCE IT IS WHO LEADS IN THE DUN THAT IS TO BE DETERMINED, IT GOES THAT THE BEST MEANS IS THROUGH VOTING IN THE DUN ITSELF, AND NOT THROUGH SECONDARY, UNSURE MEANS LIKE ASKING FROM HIS TUKANG MASAK OR GATEKEEPER. JUDGEMENT HERE NEVER AT ALL MEANS WHIM AND FANCIES OF THE SULTAN. IT MUST BE SURE OPINION BASED ON THE BEST AVAILABLE EVIDENCE, AND SURELY NOT CIRCUMSTANTIAL AS PROPOSED BY THE BLESSED AG. NOW IS IT IMPOSSIBLE TO ACHIEVE?? THE ANSWER IS NO, AND THAT IT HAS BEEN ACHIEVED UNDER THE TREE THE OTHER DAY.

    3. SO THE SULTAN MUST FIRST GO THROGH THE VOTING, AND COUNT HIMSELF. ONLY THEN HE CAN JUDGE WHO GET, NOT JUST WHO IS LIKELY, BUT WHO EMPHATICALLY GETS THE MOST VOTE. HAVING DONE THAT HE SHALL APPOINT ACCORDINGLY. OF COURSE IT IS HE ONE WHO GET THE MOST VOTE UNDER THE TREE THE OTHER DAY.

    4. SO THE WORD SHALL IN 16 (2) (a) IS NEVER AN INDICATION OF ANYBODY’S PREROGATIVE TO APPOINT BUT RATHER AN ORDER TO STAMP OR FORMALLY APPROVE THE OUTCOME OF THE VOTING PREVIOUSLY HELD. IT’S NOTHING BUT AN ORDER TO FORMALISE ON THE SULTAN’S PART.

    And at pp 36, 37 Abdul Aziz J also said:

    Under Article XVI(2) of the Perak’s State Constitution His Royal Highness shall appoint as Menteri Besar a member of the State Legislative Assembly who in His Royal Highness’ judgment is likely to command the confidence of the majority of the members of the State Legislative Assembly. …SAME, LIKELY MENAS NO FANCY. ITS ALL ABOUT THE BEST EVIDENCE TO SEE WHO IS THE LEADER IN THE DUN. IF I WANT TO SEE WHO IS LIKELY TO LEAD, THE BEST WAY TO DO THAT IS, I DON’T GO FOR NAZRIN’S OR ZAMBRI’S OPINION,I GO TO THE DUN ITSELF! ONLY THEN I CAN SEE EMPHATICALLY, AND NOT JUST A LIKELIHOOD.

    I never had any doubt that the exercise of the royal prerogative to appoint a Menteri Besar pursuant to Article XVI(2) Perak’s State Constitution is solely based on personal judgment WHATEVER JUDGEMENT, PERSONAL OR OTHERWISE IT MUST BE FORMED BASED ON THE BEST EVIDENCE POSSIBLY AVAILABLE of His Royal Highness and that His Royal Highness may resort to any means in order to satisfy himself and accordingly to form his judgment as to whom who is likely to command the confidence of the majority of the State Legislative Assembly that he can be appointed as the Menteri Besar to lead the Executive Council. MAY CAN NEVER MENA HE CAN CHOOSE, SO THAT HE GETS THE ANSWER HE WANTS. HE MUST GO TO THE BEST EVIDENCE POSSIBLE TO SATISFY HIMSELF AS TO WHO REALLY LEAD THE DUN.

    I also have no doubt that His Royal Highness has absolute discretion HOW IN THE WORLD CAN A CONSTITUTIONAL MONARCH HAVE ANY DISCRETION??. IF THAT IS THE CASE HE IS ABSOLUTE, AS OPPOSED TO CONSTITUTIONAL with regard to the appointment SHALL APPOINT, AS I SAID MEAN SIMPLY, HE MUST FORMALLY PUT HIS STAMP ON THE OUTCOME OF THE VOTING, PURE AND SIMPLE. IT CAN NEVER MEAN HE DECIDE EVERYTHING WHIMSICALLY AND ABSOLUTELY of a Menteri Besar and the withholding of consent to a request for the dissolution of the State Legislative Assembly. This is plain and obvious from the reading of Article XVIII (1) and (2) (a) and (b) of Perak’s State Constitution. The High Court judge even agreed, at p 37:

    … that if THE WORD IF SHOWS THAT A VOTING MUST FIRST BE CONDUCTED. SAY FOR EXAMPLE “ IF A DOESN’T HAVE THIS, A MUST THEN DO AS FOLLOWS"the Menteri Besar ceases to command the confidence of the majority of the members of the State Legislative Assembly, he shall tender the resignation of the Executive Council,…

    So then, how could the Court of Appeal overrule the judgment of the High Court when the higher court substantially agrees with the judgment of the High Court? The newspaper report is not very clear on this point as we are still unaware of the reason for overruling the judgment of the High Court judge.

    However, according to the report in the New Straits times, Raus JCA did say, “There is no mandatory or express requirement in the Perak Constitution for a vote of no confidence to be taken in the legislative assembly.” THE OPERATIVE WORDS ARE STATE LEGISLATIVE ASSEMBLY. SO WHATEVER TEST TO BE USED TO DETERMINED WHO COMMANDS THE LEAD, IT MUST BE DONE IN THE ASSEMBLY. OTHERWISE, THE FRAMER OF THE STAT CONSTITUTION WOULD EASILY HAVE PUT “REBAN AYAM” INSTEAD IN PLACE OF THE FORMER.

    So what if there is no provision for a vote of no confidence in the Legislative Assembly. The High Court had found that Nizar is still the Mentri Besar. To overrule the decision of the High Court, the Court of Appeal must explain why the judge of the High Court was wrong in finding that Nizar is the Mentri Besar. I GUESS THAT IS WHY IT TOOK THEM 5 MINUTES TO DECIDE AND 1 WHOLE WEEK TO FORM JUDGEMENT, LIKE PUTTING THE CART BEFORE THE SPOON.

    The newspaper had even suggested that it could be implied in the ruling of the Court of Appeal that the Ruler had sacked the incumbent Mentri Besar Nizar:

    The unanimous Court of Appeal ruling yesterday seems to suggest that a head of state can sack the incumbent head of government once it was determined that the politician ceased to command the confidence of a majority of the elected representatives. The newspaper is wrong. That was not the finding of the Court of Appeal. In any case the monarch has no power to dismiss a Mentri Besar – there is no provision for it in the Perak Constitution. TRUE, THE SULTAN IS NOTHING BUT A LEGALLY CREATED FORMALITY The trial judge Abdul Aziz J in his judgment has explained why he found that Nizar is still the Mentri Besar. This is how he puts it – see p 54 of his judgment:

    It is true the request IT’S NOT A REQUEST BUT A MANDATORY ORDER LEGALLY PROVIDED FOR may be made only under two provisions of Perak’s State Constitution i.e. Article XVI(6) and Article XXXVI (1) and (2). But the circumstances under which the request can be made is unlimited. The request under Article XVI(6) is specific to a situation where the Menteri Besar ceases to command the confidence of the majority in the State Legislative Assembly; whereas under Article XXXVI (1) and (2), [the] situation is unlimited. It is up to the Menteri Besar to choose his time to make the request. However once a request is made under whichever of the two provisions, it is entirely up to His Royal Highness’ discretion WRONG. THE SULTAN HAS NO DISCRETION. AGAIN, HE IS A MERE LEGAL FORMALITY. WHEN HE IS DIRECTED TO DO SOMETHING, DO HE MUST. whether to grant or [not to grant] the consent to dissolve the State Legislative Assembly.

    Then at pp 56-58 the High Court judge comes to this conclusion:

    In my view it is alright EMPHATICALLY NO. AS I SAID THE OPERATIVE WORD IS STATE LEGISLATIVE ASSEMBLY. SO ONLY ITS MEMBER CAN DETERMINE WHERE IT LIES. OTHERWISE YOU MAY AS WELL ASK ZAMBRI TO GET AN OPINION FROM A FORKLIFT INSTEAD SO THAT HE GETS WHAT HE WANTS. I THINK THE REQUIREMENT THAT IT MUST BE THE ASSEMBLY ITSELF THAT DECIDE WHERE THE LEAD LIES, IS SOME KIND OF A SHIELD FROM WHIMSICAL JUDGEMENT FROM BEING MADE. THE RAKYAT HAS CHOSEN THEIR REPRESENTATIVE, SO ONLY THE REPRESENTATIVES CAN DECIDE WHO LEADS. if His Highness takes upon himself to determine who commands the confidence of the majority in the State Legislative Assembly that he can appoint as the Menteri Besar. Such determination however is only good for the purpose of appointing a Menteri Besar pursuant to Article XVI(2)(a) Perak State Constitution. This is so because that provision speaks of ‘who in his judgment is likely to command the confidence of the majority’. The language used therein requires the exercise of a personal judgment on His Royal Highness. JUDGEMET, PERSONAL OR WHATEVER, MUST BE FORMED BASED ON THE BEST EVIDENCE AVAILABLE. OTHERWISE, THE VERY REASON WHY WE ARE BORN COMPLETE WITH BRAIN BECOME MEANINGLESS. But the same thing cannot be said with regard to Article XVI(6) in deciding whether the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly. In this case His Royal Highness, through his enquiries has judged HIS JUDGEMENT MUST BE BASED ON THE BEST EVIDENCE HE COULD GET. SINCE IT’S THE RAKYAT THAT CHOOSE WHO THEY WANTS AS LEADER, IT IS FROM THE REPRESENTATIVES IN THE DUN THAT THEY HAD ELECTED, THAT MUST DECIDE THAT. that the respondent [Zambry] has the support of the majority. But that finding does not necessarily mean His Royal Highness can form an opinion that the applicant [Nizar] ceases to command the confidence of the majority of the members of the legislative assembly. One reason for this is that the expression ‘in his judgment’ is not used in Article XVI(6). ? I am of the view that just because His Royal Highness had formed a judgment that the respondent [Zambry] is likely to command the confidence of the majority for the purpose of Article XVI(2)(a) to appoint the respondent [Zambry] as Menteri Besar it does not mean that His Royal Highness’ opinion or judgment is applicable in deciding that the applicant [Nizar] ceases to command the confidence of the majority of the members of the Legislative Assembly. In another word, one cannot say that because His Royal Highness has judged that the respondent [Zambry] is likely to command the confidence of the majority in the Legislative Assembly therefore the applicant [Nizar] ceases to command the confidence of the majority of the members of the Legislative Assembly. I would say that the personal opinion or judgment of His Royal Highness is irrelevant to the construction of Article XVI(6). The [other] reason is that Article XVI(5) Perak State Constitution states that the Executive Council shall be collectively responsible to the Legislative Assembly. Under Article XVI(2)(a) the Menteri Besar is appointed to preside over the Executive Council. Article XVI(6) speaks of “If the Menteri Besar ceases to command the confidence of the majority of the members of the legislative Assembly …”. Reading these three provisions in Article XVI Perak State Constitution it is logical and in fact Article XVI(6) requires it to be so, that it is the Legislative Assembly that determines whether it has confidence in the Menteri Besar as the Head of the Executive Council. The Legislative Assembly may make the determination through a vote of no confidence against the Menteri Besar. (The emphasis is mine) JUDGEMENT MUST MEAN CAREFULLY FORMED OPINION BASED ON THE MOST CONCLUSIVE EVIDENCE AVAILABLE. OTHERWISE, THE MORE CORRECT WORD THAT SHOULD INSTEAD HAVE BEEN USED IN THE ART. IS “GUESS”.

    SOMETHING LIKE THIS…

    His Royal Highness shall first appoint as Mentri Besar to

    preside over the Executive Council a member of the Legislative

    Assembly who in his GUESSWORK is likely to command

    the confidence of the majority of the members of the Assembly

    YOU AS A JUDGE, I AM SURE KNOW BETTER. YOU JUST DON’T COME TO A DECISION WITHOUT FIRST SATISFYING YOURSELF OF EVERYTHING BY USING THE MOST CONCLUSIVE EVIDENCE AVAILABLE, DON’T YOU??

    It seems to us ordinary folk that the Court of Appeal has missed the point. They decided that Zambry was properly appointed Mentri Besar under Article XVI(6). That is not correct – he could only be appointed under Article XVI(2)(a). Since there cannot be two Mentri Besar and Nizar the incumbent Mentri Besar has not resigned and, further, since the legislative assembly did not decide if he has ceased to command the confidence of the majority of the members of the assembly, Nizar, unquestionably, is still the Mentri Besar of Perak.

    Nizar’s case was that Article XVI(6) speaks of “If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly”. The poser is who is to decide “If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly” under Article XVI(6)? Certainly not the Ruler because the phrase “in his judgment” – which is used in Article XVI(2)(a) – is not used in Article XVI(6). If it is not to be the Ruler then who is to decide “If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly”?

    The answer is in Article XVI(6) itself – only the Legislative Assembly itself could decide if the Mentri Besar ceases to command the confidence of the majority of the members of the Assembly. Article XVI(6) clearly states that the Mentri Besar who no longer commands the confidence of the majority of the Legislative Assembly “shall tender the resignation of the Executive Council”. This has to be done “unless at his [the Mentri Besar's] request His Royal Highness dissolves the Legislative Assembly”. But Mentri Besar Nizar could not admit that he ceases to command the confidence of the majority of the members of the Legislative Assembly because he would not know until a vote has been taken at the Assembly to determine so. Only the Assembly itself would know if a vote is taken to determine whether the Mentri Besar has lost the confidence of the majority of the members of the Assembly.

    Now that you have understood the five-minute decision of the Court of Appeal as well as the well considered judgment of the trial judge, you should be able to severely bring to book the judges of this Court of Appeal since you are now aware if they have done wrong.

    Before I sign off, I wish to say a few nice words to the High Court judge. Mr Justice Abul Aziz Abdul Rahim is a fantastic judge. The judgment, especially the piece on the interpretation of Article XVI(6), is so good that it has persuaded me to change my mind on my view of Article XVI(6). If you remember my first article, I have expressed an opinion on Article XVI(6). Now I know I was wrong – and I have to thank Abdul Aziz J for showing me the way.

    Agree. I remember you as the one who stood against the rest in that famous Ayer Molek case. Legal acumen is one thing, but legal independence is another, I am sure you agree. If you are fearful of anything, you are just not fit to be a judge. Coward judges, is the last thing we want to spend our hard money on.

  6. Otak kurang sihat

    This what happen to Anwar Ibrahim case,you find all the back door judges making stupid and reckeless judgment which is more in favour for their political master.

    Its a shame.

  7. mei1

    so, how would the judges from federal court give their verdict when the case is brought to FC?? 78 pages of well-explained judgment or 5-minute oral decision??

  8. god

    What shall we do with the shamelessly unprofessional judges?

    What has the constitution say abut this. How do we get rid of these kind of judges?

  9. aryn

    That QC, obviously, did not study Perak constitution and the formation of Perak Government.

    That QC, Ithink is Anthony Lester, one who defended Joseph Pairin Kitingan's case in 1986/87 and Pairin won his case as the legitimate Chief Minister of Sabah against Deceased Tun Mustapha Harun who wa sworn earlier on based on an asumption of election six nominated assemblymen to form a majority in the LA.

    But it was a totally different cases as compared to Nizar's case.

  10. Rais

    But I heard the PM said over TV that a learned QC said otherwise.

  11. hamzah

    Thank you Justice Aziz for your grounds.

    Thank you Justice NH Chan for the enlightenment.

  12. ngtiewley

    Bravo, Justice NH Chan,

    Thanks for your up-date interpretation of the 3CA judges. After reading your explaination I find the 3CA judges have erred in their FINDINGS and NEED to be reprimanded or removed sitting as CA judges.

  13. joenathan

    Thnx for the enlightenment, sir.

  14. Sam

    "you should be able to severely bring to book the judges of this Court of Appeal since you are now aware if they have done wrong." SH Chan.

    But sir how do we do it? These are shameless human beings, with no maruah whatsoever and protected by a shameless government.

    The COA can even say that the world is flat and I can be jailed for saying it is round. These are mad judges proping up a mad government.

    Allow me to curse them and their families once again.

  15. Perakian

    We have read, re-read and re-read Justice Aziz's judgement. Not only what he decides is in accord with the Perak constitution but it is also in accord with constitutional conventions of commonwealth countries like UK and Canada. Otherwise how do you explain the fact that in UK and Canadian history, there are so many instances of minority government taking place. To dismiss them the majority has to pass a vote of no-confidence in Parliament and not by running to the Queen to do so. It is basic constitutional convention; which is too axiomatic that only the vote in the Assy counts and not the personal judgement of the Sultan. Even in Aziz's judgement, he has noted that alignments may change when the voting takes place. Who can say that a BN Assy'man who profess to supporting Zambery bf the Sultan would do so during the vote of no-confidence, more so when there is secret voting.

    CA judgment is hogwash and so are the Judges. Imagine telling malaysians that the sitting PM can be dismissed by the King without a vote of no-confidence being passed. You will find State governments in Malaysia fall like ten-pins lah. The fitness of the 3 CA Judges to be Judges is highly questionable with their nonsensical judgement.

    Anyway thanks Judge NH Chan for such an invaluable legal education.