The Federal Court in Nizar v Zambry: A critique — NH Chan (loyarburok.com)
FEB 19 — 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 realised 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.
* This article is the personal opinion of the writer or publication. The Malaysian Insider does not endorse the view unless specified.
Friday, 19 February 2010
Thursday, 18 February 2010
Umno's 1-Malaysia & "Vision 2020" ..........
A Simple Fact
Monday, 15 February 2010 admin-s
By Capt. Iskandar Dzulkarnain
Perkasa says ‘anti-Malay’ Guan Eng lied about Prophet’s birthday do
I read with utter disgust Perkasa’s comments on the above. The accusations are highly seditious, inflammatory, and downright insane. The race and religious card is being played with impunity, and yet the government is sitting tight and not moving an eyebrow.
The 1malaysia concept is being torn to tatters with such unspeakable remarks, and just this morning Najib was talking about racial unity. If UMNO does not sanction such remarks by racists, it should take action to reprimand such openly insensitive remarks.
By branding a Chinese as anti Malay is an outrageous accusation. The Chinese and Malays take such remarks very sensitively. And this situation can get out of control.
The glue that binds the races together will melt and it may cause another racial conflict. Already, race relations is at an all time low, and such politicians should not be let out to roam free to destabilize the peaceful coexistence among the races.
But if we prosecute this politician, the MSM will make him a martyr of the Malays!
Malays are not against the Chinese or other races, it is the politicians that disturb the peace by such propaganda. And their so-called slogan of protecting the rights of the Bumiputras is just a facade for them to go on plundering the nation. After 50 years of protecting and nurturing us Bumiputras, we still lag behind the non-Bumiputras. This shows that something is very wrong somewhere.
Lately, Perkasa says that Bumiputras need to be on par economically with others, if not, 1Malaysia will not achieve its objective. This again is hogwash because in realty only the elite benefited, while the rest of the Bumiputras were left to pick up the bones.
So, non-Bumiputras, please do not be deceived by these so-called NGOs that claim to protect Bumiputra and Malay rights. At least half of us know that it is just a sandiwara played continuously for over 50 years to entertain the nation. Today, the Bumiputra is still worse off than ever, but we do not blame others, but ourselves.
I see the day, when the non-Bumiputras decide to call it quits, and start to migrate en masse. That day, when all the others are gone forever, We will start to miss the chatter of old Chinese families, the familiar sound of Chinese opera, the firecrackers, and the ah moi in blue jeans and t-shirt; the Indians, in saris and their fiery curries and papadam. Gone will be the pubs and discos, the Carlsberg advertisements, the cinemas, the entertainment outlets with the live bands; when our TVs no longer broadcast Chinese and Hindi movies; gone from the supermarkets, are the Christmas trees ornaments, and Santa Claus lookalikes, the lively festivals of the other races, the Thaipusam parades, the dragon boat festivals, and the Christmas carolling, etc.
We need the Chinese and the Indians, and the rest of the races; for without them Malaysia would have lost its identity, and its cultural potpourri that makes Malaysia unique.
If they go, I will follow too, as this country will be too boring to stay anymore. Everyone has contributed to this nation, and we are all Malaysians. WHY,WHY, WHY can’t the government accept such a simple fact???
Why are we still separated racially? Why must there be a more superior race? Everyone knows we are not, and yet we still console ourselves that we are, and that we still need protection, and sustenance, to be economically on par with the non-Bumis.
Germany made a mistake with Nazism, and has corrected it. Yet we are stupid enough not to see through this charade, and year after year still vote for the same government that is hell bent to see that we are kept apart through their divide and rule policies.
Because of this, Malaysians are one of the most unpatriotic citizens, as really there is nothing about this nation of ours to be proud of!! Our government has lost our trust and respect, yet they still cling on to their thrones, and hopping from one party to another, while promising heaven.
The PERC report recently disputed by Muhyiddin, jolts us back to reality. We will slowly lose valuable foreign investment with our hard, stubborn approach to governance in this land. And with a disintegrating opposition, it is hard to paint a rosy picture of the future of this country. MAY GOD HELP US!!!
Free Anwar Ibrahim - Swampland - TIME.com
Free Anwar Ibrahim - Swampland - TIME.com
Read more: http://swampland.blogs.time.com/2010/02/15/free-anwar-ibrahim/#ixzz0fqtaqG2P
Free Anwar Ibrahim
Jerusalem
There were lots of fascinating developments at the Brookings US-Islamic forum in Doha over the weekend, which I'll be writing about in detail over the next few days--and one very depressing development. Anwar Ibrahim, the charismatic Malaysian reformer, came to Doha directly from a Kuala Lumpur courtroom, where he is being tried for sodomy; he returned to Malaysia Sunday night. The Malaysian government has been after Ibraham for the past decade now, jailing him, convicting him of sodomy (that is, of homosexuality) once--a verdict that was partially overturned--and is now trying him again.
Let's leave aside the human rights outrage...well, maybe not--anti-sodomy laws are barbaric. Period. In any case, using claims of homosexual activity to discredit a political opponent is disgraceful. Ibrahim is married; his wife insists these charges are trumped up. There is, however, a young man, a former aide, who has made the accusation. No doubt, these charges would never have been brought if Ibrahim weren't such a well-known and outspoken voice for freedom.
I've met Anwar several times and had memorable conversations with him. He is a wise, decent and courageous man. Last year, at the Doha Forum, Anwar took the opportunity of Barack Obama's Inauguration to chide his fellow Muslims: the question is no longer what the Americans should do, he said (I'm paraphrasing here), but what we Muslims can do to get our act together, to establish just and democratic governments in our own countries.
On Sunday in Doha, Anwar met Hillary Clinton...and Clinton agreed to have her picture taken with him, which is a significant public sign of support that I hope the Secretary will follow up with a phone call to her Malaysian counterpart. Anwar's trial will be finished in the next week or so; he told me he fully expects to go back to prison. The thought of staying in Doha, or emigrating to the United States hasn't crossed his mind. He's a Malaysian patriot and a fighter for democracy of international significance. He deserves all our support.
Read more: http://swampland.blogs.time.com/2010/02/15/free-anwar-ibrahim/#ixzz0fqtaqG2P
Wednesday, 17 February 2010
Who are Perkasa?
| Who are Perkasa? |  |  |
| CPI Writings | ||||
| Written by Dr Lim Teck Ghee | ||||
| Wednesday, 17 February 2010 14:07 | ||||
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Dr Farish Noor’s assessment of Perkasa as “a class issue… reflecting the anxieties of poor Malays who are scared of the globalization process” is not only off the mark but also plainly incorrect.
Besides its “frog king” President, Ibrahim Ali who is notorious for his party hopping (“The frog under the coconut shell hops from padi-field to padi-field, it does not hop …far, just nearby” ) and racist and sexist outbursts (“… there would be fewer marital problems and a lower divorce rate if Muslim women were taught to accept polygamy”), most if not all of its leaders are professional politicians or businessmen, mainly from or closely associated with Umno and fitting in or flirting with the opposition camp when it suits their interests.
It is as if the present Umno leadership which controls the mass media and the spin given to these new forces sees it as in its interests to coddle and legitimize Malay racist organizations, however extreme their message and opportunistic their agenda may be. The convergence of interests between the Umno leadership and the various manifestations of these ‘grassroots’ movements is not surprising.Monday, 15 February 2010
Organized Crime, Malaysia Style?
A Million Here ... A Million There - The Story of UMNO
Monday, 15 February 2010 admin-s
Corruption is the single biggest threat to the survival of our country. Institutionalized corruption demoralizes, frustrates and will ultimately destroy the moral fiber of our people and then our country – if it has not already done so!
By steadyaku47History tells us that the oppressed do sometimes admire the oppressor to the extent that given the opportunity they will become worse oppressors. This is now happening with the PDRM who have previously been at the beck and call of its Political Masters for many years. With the advent of money politics and the need to use PDRM as a political tool to manage the opposition, PDRM has now taken the persona of their UMNO masters and are now running neck to neck with their once political masters to see who could ruin our country quicker! It is happening within the various Ministries who are facilitating the institutionalization of corruption and enriching themselves in the process at the expense of the people.
We know that law enforcement, judicial and other legal avenues have failed us! I have yet to see a meaningful conviction by the MACC. The decision made by the Judiciary confirms its inability to deliver Justice resulting in social chaos as evident in their recent rulings on Perak and the Anwar Sodomy but at least the Judiciary has been consistent in its failures to gain acceptance and public trust in their deliberations!
The Federal Government of Malaysia and its many functionaries is a “racket”.
A racket is an illegal business, usually run as part of organized crime. The best known is the protection racket, in which criminals demand money from businesses in exchange for the service of "protection" against crimes that the racketeers themselves instigate if unpaid (extortion).
Is this not what PDRM is doing? They deploy their own “thugs” through road blocks, patrol cars and any other manner possible to seek ways and means of demanding money from the Rakyat in exchange for their services - to “selesai” traffic infringements and other criminal transgressions – pocketing the proceeds themselves! Of course, their higher-ups handle the more lucrative side of things. Harapkan pagar, pagar makan padi! (Dang! … My Malay is still OK lah!)
Is this not what the Immigration Department is doing? The Customs people are doing. JPJ is doing? The Bomba Department is doing … even the office boys in these Government Departments are part of this “racket”. To ensure that your letters do not go missing, you pay these office boys for their “services”. Back in my old MCKK days, we call this “double ration”… but our double ration consists of taking the biscuits of those who do not turn up for tea because they were out enjoying the wonders of our beloved Kuala Kangsar town on the weekends. No harm done!
Of course, UMNO Politicians of dubious ethics run a bigger racket. The “utilities racket” through the IPP agreements. The “toll racket” (when in KL my daily toll “contributions” is at least Ringgit $15 to use the highways in and around KL!). You pay more in tolls than in petrol even if you use a Kancil to travel from KL to Penang on the North South Highway! And yet these toll concessions companies still cry “poor”. Who owns these toll concessions companies? Surely these people are rogues and scoundrels of the highest order running a “racket” with the blessings of their UMNO political cronies. Why the hell are we paying taxes for? Is it not to pay for these utilities and facilities?
The quid pro quo exchange of donations or bribes for massive government contract makes up the “negotiated tender” rackets through EPU, JKR and almost anywhere else where they can “negotiate” the giving of any government contracts or any government business. This “racket” is in a class of its own and will require an entire section to do it justice. Suffice for now to say that Samy Vellu and the EPU ‘boys” are a happy and contented lot – but in defense of Samy Vellu, he did say “Kemaluan saya besar!”.
And then there are the spectacular racketeering scams done only by the political elites and their cronies – from the Prime Minister down! Denying the sovereign rights to their petroleum resources, and consequently the oil payments owed, with compound interest, to Trengganu and Kelantan - from which they have been illegally withheld. The Approved Permits rackets for imported cars. The massive commission payments “for services rendered” by their cronies in the sourcing of Government purchases and requirements. The building of roads, longkangs, swimming pools, street lights, pubic facilities to influence electorates in elections is truly the most despicable of racketeering as it holds the electorates to ransom for what is rightfully theirs – quite like the “protection” rackets offered by thugs on defenseless shopkeepers and small businesses … and as Yul Brynner said in “The King and I” … "et cetera, et cetera, et cetera.
The Government is in the business of providing services for its Rakyat. It should not be in the business of demanding money from its Rakyat in order to provide these “services” and “protection”. In Malaysia, if the Rakyat does not pay in the form of bribes or “donations” – then applications are delayed, licenses are not given, people are arrested, thrown into jail or even murdered! These problems are allowed to happen and instigated by these UMNO-led political class specifically so that bribes and donations are required to be made by the Rakyat to overcome or solve these “problems”.
So I say the Federal Government is into “racketeering” big time”! - An art brilliantly mastered by the UMNO-led political class now running our country. Despite accusation of impropriety, their political careers continued – if not flourished. Hell, they may even get to become Prime Minister! Go ask Mahathir and Najib!
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