Thursday, February 11, 2010

FC is backing open tussle for power

Lawyer says Federal Court is backing open tussle for power

By Debra Chong

KUALA LUMPUR, Feb 11 — The Federal Court has agreed that Datuk Seri Zambry Abd Kadir is the rightful Perak mentri besar, but a certain clause tacked on at the end of its freshly-released collective written judgment spells a worrying trend for future heads of government, said a lawyer who had acted for ousted mentri besar Datuk Seri Nizar Jamaluddin.

Edmund Bon, who yesterday had read through the 40-page judgment, highlighted a peculiar clause tucked away on page 39.

“However, we would add that this is by no means the end of the matter, as it is always open to the appellant [Nizar] to bring a vote of no confidence against the respondent [Zambry] in the LA [Legislative Assembly] or make a representation to HRH [His Royal Highness the Sultan of Perak] at any time if he thinks that the respondent does not enjoy the support of the majority of the members of the LA.”

The resulting judgment was made by a panel of five Federal Court judges led by the President of the Court of Appeal, Tan Sri Alauddin Mohd Sheriff. The others are Chief Judge of Malaya Tan Sri Arifin Zakaria, and Justices Datuk Zulkefli Ahmad Makinuddin, Datuk Wira Ghazali Mohd Yusoff and Datuk Abdull Hamid Embong.

Bon, who heads the Bar Council’s constitutional committee, was also part of the ousted mentri besar’s (MB) legal team. He had tweeted his take of the oral ruling from morning and continued far into the night after getting his hands on a copy of the written judgment.

“If a mentri besar thinks he has lost the confidence already, he is never going to ask the Sultan to dissolve the Assembly any more because backdoor dealings will be a better route to maintain or seize power,” the young lawyer told The Malaysian Insider in his analysis of the judgment.

Asked why he thought the judges inserted the clause, Bon said it may have been done to give Nizar an “escape”.

“Basically, that is saying, look Nizar, you still have remedy. Forget the Legislative Assembly, now anyone can just go straight to the Sultan to appoint the head of the government,” he said.

“It’s free for all,” he quipped.

“A bad and dangerous precedent has been set. The Federal Court has suggested that Nizar can now do what Zambry/Najib did, that is by going to see the Sultan if he had jumpers,” he explained.

Attorney-General Tan Sri Abdul Gani Patail had suggested a similar effect yesterday when asked to explain the clause.

“What the judges said is that anyone who has the majority can be appointed as mentri besar, but must prove it,” said the government’s chief lawyer.

But Bon warned that the clause now made “Article 16(6)...superfluous” and said it showed the “Legislative Assembly is no longer sacrosanct”.

“This does not promote accountability,” he added.

Bon pointed to several other curious points on the collective judgment.

The lawyer noted that the Federal Court had previously chided the High Court judge for following the decisions of foreign constitution cases in arriving at his own judgment, but seemed to have broke its own word when it referred to the Indian court position in pages 30 to 31 saying that one can remove a leader without a vote.

“In Amir Kahar, even though the learned judge distinguished that case on its facts from Ningkan, he explicitly stated that the question whether the Chief Minister ceases to have the support of the majority of the members of the Assembly could be gathered from sources outside the Assembly. In this regard we would also refer to the Indian case of Mahabir Chandra Prasad Sharma, petitioner v Prafulla Chandra Ghose and others, Respondents AIR 1960 Cal. 198. There the high Court held that the Governor may remove the Chief Minister from his office and dissolve the council of Ministers headed by him after being satisfied that the Chief Minister no longer had the support of the majority of the Legislative Assembly. This was done without there being a vote of no confidence passed by the Legislative Assembly. In his judgment, B.C. Mitra J stated that the provision in Clause (2) of Article 164 of India Constitution that the Ministers shall be collectively responsible to the Legislative Assembly of a State, does not in any manner fetter or restrict the Governor’s power ‘to withdraw the pleasure’ during which the Ministers hold office. It is true that there, the Council of Ministers hold office at the pleasure of the Governor but the point we are making is that the Governor may remove the Chief Minister and the Council of Ministers without a vote of no confidence being passed in the Legislative Assembly.”

Bon was incensed. He noted that the Indian example cited by the Federal Court should not have been used because the Perak Constitution clearly states, under Article 18, that the MB does not hold office at the pleasure of the Sultan.

He explained that the Perak sultan could dismiss any member of the Executive Council (exco) as they hold office at his pleasure, but the Ruler cannot do the same with the MB because of that clause.

Bon pointed that the constitutions of both India and Nigeria, which were cited in the Federal Court judgment, are drawn up differently and have express clauses that allow for a Chief Minister to be removed by the Ruler.

The lawyer slammed the apex court for failing to fully answer all the questions raised before it in November.

Question Three, framed in page 5 of the Federal Court judgment, reads: “If the Mentri Besar refuses to tender the resignation of the Executive Council whether under the Laws of the Constitution of Perak, a Mentri Besar may be dismissed from office or the Mentri Besar’s post be deemed vacant or vacated?”

Bon said the question is actually split into two parts, which in plain English, asks: (i) Can the MB be sacked? Or (ii) Can the MB’s post be considered vacant? Which links it to the question of who has the power to sack the MB and how is that sacking done?

“The Federal Court, however, did not directly answer question three, which is whether a Sultan can sack the mentri besar if the mentri besar refuses to resign.

“Instead, they ‘deemed’ the post to have been ‘vacated’ when there are no express ‘deeming’ clause or provision to do so in that part of the state constitution,” he said, and pointed to its reply on page 39.

“As for the third question our answer is that if the MB refuses to tender the resignation of the Executive Council under Article 16(6) the MB and the Executive Council members are deemed to have vacated their respective offices.”

Bon also accused the Federal Court of “stretching the language of the Perak Constitution wrongly” make it cover a loophole in Article 16(6), which is cited on page 18.

“If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.” Bon noted that the judges had looked at Article 16(6) and said it carried both a literal and liberal meaning at the same time. He wondered at their inconsistency.

“The only reason why the Federal Court found no need for a vote in the House was because it was not expressly stated in Article 16(6). In the same breath, it suddenly adopted a “liberal” approach on the question of the confidence vote,” he pointed out.

“The perception is that the Federal Court wanted to reach a certain result and tailored the judgment accordingly, as opposed to reasoning the judgment in accordance with consistent principles,” Bon said.

He also said the Federal Court’s judgment that Nizar had broken a basic principle of democracy — whoever holds the biggest number of supporters wins — was flawed because the judges did not take into account that in a democracy, votes count because they are passed by elected representatives in the Legislative Assembly and not things done outside it.

Lastly, Bon faulted the Federal Court said for repeating the same mistake as the Court of Appeal in calling the High Court decision ‘perverse’ but did not explain why it was so.

Pointing to pages 19 to 21, he said the Federal Court’s justification was merely a parroting of the appeals court’s written judgment.

“The Court of Appeal reversed the finding of the learned High Court Judge on the premise that his finding was perverse, being contrary to documentary and other evidence before the Court. (See Dato’ Seri Ir. Hj Mohammad Nizar Jamaluddin; Attorney General of Malaysia (Intervener) (2009) 5 CLJ 265; (2009) 5 MLJ 469; and (2009) 4 AMR 569. Raus JCA (as he then was) his judgment stated:it is clear from the above uncontroverted documentary evidence that the request for the dissolution of the Legislative Assembly must have been made under Article XVI(6) of the Perak State Constitution. Moreover, state of events that led to the decision of His Royal Highness not to dissolve the Legislative Assembly, does not support Nizar’s claim that he had requested the dissolution of the Legislative Assembly under Article XXXVI(2) of the Perak State Constitution.”

“Having considered the evidence before the court, we find that the Court of Appeal was justified in reversing the finding of facts by the learned High Court Judge. We agree that this is a clear case where the trial Judge failed to judicially appreciate the facts before him. Such a failure justifies an appellate intervention as was rightly done by the Court of Appeal in the present case.”


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