Penasihat Umno Jawab Isu MB Perak

Datuk Hafarizam Harun.

Penasihat Undang-undang Umno.

 

Apr 22, 2009

 

Keputusan Mahkamah Persekutuan bahawa penggantungan Menteri Besar BN Perak, Datuk Seri Dr Zambry Abdul Kadir dan enam exco kerajaan negeri itu oleh Speaker DUN Perak, V Sivakumar batal dan tidak sah, adalah konklusif dan tidak boleh dipertikaikan, kata Datuk Hafarizam Harun.

 

 Berikut adalah kenyataan penuh beliau yang disiarkan dalam Umno Online:

 

A. Pengenalan

 

Sejak daripada tarikh keputusan Mahkamah Persekutuan pada 16 April 2009, banyak telah diperkatakan di dalam blog dan laman web tentang kesan atau impak terhadap keputusan Mahkamah Persekutuan di dalam Notis Usul 06-04-2009 (A) antara YAB Dato Seri Dr. Zambry bin Abd. Kadir dan enam Exco lawan YB Sivakumar a/l Varatharaju Naidu (dituntut selaku Yang DiPertua, Dewan Negeri Perak) yang terbaru adalah di dalam laman http://www.harakahdaily.net/ oleh Saudara Hanipa Maidin, Pengerusi Lujnah Undang-undang dan Hak Asasi Manusia PAS Pusat pada April 20, 2009.

 

Justeru itu, saya selaku Ketua Pasukan Undang-undang yang bertanggungjawab di dalam kes di atas merasakan perlu saya berikan penjelasan sebaliknya dan menyerahkan kepada pembaca sekalian untuk membuat kesimpulan sewajarnya.

 

B. Latar Belakang Kes Mahkamah Tinggi Ipoh Saman Pemula No: 24-247-2009

 

Tindakan Saman Pemula ini telah difailkan pada 2hb Mac 2009 (tindakan pertama). Antara deklarasi yang dipohon adalah seperti yang tertera di dalam LAMPIRAN 1.

 

C. Kes Mahkamah Persekutuan Notis Usul No. 06-04-2009(A) di Putrajaya

 

Terdapat 11 permohonan yang dipohon oleh YAB Menteri Besar Perak dan enam Exconya. Bagi mendapat kata putus kepada tindakan di atas, kami telah failkan suatu permohonan di bawah Artikel 63 Perlembagaan Negeri Perak yang bermaksud seperti di bawah:

 

“Without prejudice to any appelate or revisional jurisdiction of Federal Court, where in any proceedings before another Court, a question arises as to the effect of any Article in the Laws of tahe Constitution or any part thereof, the Federal Court may, on the application of either party to the proceedings, determine that question and either dispose of the case or remit it to the other Court to be disposed of in accordance with the determination.”

 

Ianya telah didengar oleh Mahkamah Persekutuan daripada 13hb hingga 14hb April dan keputusan diberikan pada 16hb April. Berikut adalah (LAMPIRAN 2) persoalan undang-undang yang telah dijawab secara positif oleh Mahkamah Persekutuan, iaitu soalan (i) dan (ii) Lampiran A kepada LAMPIRAN 2 di sini.

 

Pada hari yang sama juga, (16 April 2009) Mahkamah Persekutuan telah membuat perintah-perintah berikut terhadap tindakan pertama kami iaitu memberikan perisytiharan bahawa;

 

a. Keputusan Defendan Pertama (YB Sivakumar) menggantung dan melarang Plaintif Pertama hadir pada sidang Dewan Negeri selama 18 bulan adalah menyalahi Undang-undang Tubuh Negeri Perak Darul Ridzuan dan oleh itu adalah terbatal dan tidak sah; dan

 

b. Keputusan Defendan Pertama (YB Sivakumar) menggantung dan melarang Plaintif ke-2 sehingga ke-7 menghadiri sidang Dewan Negeri selama 12 bulan adalah menyalahi Undang-undang Tubuh Negeri Perak Darul Ridzuan dan oleh itu adalah terbatal dan tidak sah.

 

Berdasarkan kepada perintah-perintah peristiharan di atas, saya menyatakan bahawa YAB MB Perak dan enam Exconya layak hadir ke sidang Dewan Negeri Perak yang dijadualkan berlangsung pada 7hb Mei 2009 atas alasan-alasan berikut:

 

i. Perintah-perintah yang diperolehi adalah muktamad dan tiada lagi ruang untuk merayu.

 

ii. Jikalaupun tidak mendapat keseluruhan permohonan di dalam tindakan pertama, sila lihat Lampiran A kepada LAMPIRAN 2, yang pentingnya di sini ialah persoalan kesahihan penggantungan terhadap YAB MB Perak dan enam Exconya telah dijawab secara positif oleh Mahkamah Tinggi di Malaysia ia tidak sah dan terbatal;

 

iii. Dalam ertikata lain, lain-lain permohonan (prayers) di dalam tindakan pertama hanyalah bersifat bersampingan (consequential). Yang pentingnya, seperti saya tegaskan tadi, adalah apa yang telah diberikan oleh Mahkamah Persekutuan.

 

Berkenaan pendapat Saudara Hanipa bahawa Peguam UMNO telah salah memilih prosedur, iaitu perlu melalui semakan kehakiman di bawah Aturan 53 Kaedah-kaedah Mahkamah Tinggi 1980 dan bukannya Saman Pemula, ini telah diputuskan oleh Mahkamah Persekutuan di dalam bantahan awal peguam YB Sivakumar bahawa tindakan pertama (iaitu melalui Saman Pemula) adalah betul dan wajar. Tambahan lagi, apa yang dipohon adalah deklarasi hak-hak (declaration of rights) oleh YAB MB Perak dan enam Exconya.

 

Isu keputusan YB Sivakumar selaku Yang DiPertua patut dipadam oleh Mahkamah (quasued by the court) tidak timbul (non-issue) kerana ianya dibuat secara berseorangan (unilateral) dan bukannya di dalam sidang sah Dewan Negeri Perak. Sila lihat LAMPIRAN 3 iaitu kenyataan akhbar YB Sivakumar. Jelas perkataan yang dibuat adalah “Saya telah membuat keputusan….”

 

Begitu juga surat-surat pemberitahuan di dalam LAMPIRAN 4, semuanya jelas menggunakan perkataan “…kuasa saya….” Ini pada hemat saya penggunaan kuasa secara berlebihan (excess use of powers) oleh YB Sivakumar dan tidak mengikuti lunas undang-undang.

 

D. Apakah yang dikatakan suatu penghinaan (contempt) yang kononnya dilakukan oleh YAB MB Perak dan Enam Exconya sehingga ianya digantung oleh YB Sivakumar?

 

Jikalau dilihat Saman untuk hadir ke Mesyuarat Jawatankuasa Kebebasan (Rights and Privileges Committee) yang dikeluarkan oleh YB Sivakumar, selaku Yang DiPertua Dewan Negeri Perak, iaitu LAMPIRAN 5 (untuk YAB MB Perak) dan LAMPIRAN 6 (untuk Enam Exconya), ianya dikatakan suatu penghinaan (contempt) kerana:

 

(a) Untuk YAB MB Perak (LAMPIRAN 5)

 

“(i) Bahawa bertentangan dengan peruntukan Undang-undang Tubuh Negeri Perak kamu telah dan masih secara salah menjawat diri kamu sebagai Menteri Besar;

 

(ii) Bahawa kamu telah menyalahi undang-undang dengan membentukkan suatu Majlis EXCO walaupun wujudnya sebuah EXCO yang dilantik secara sah, yang mana ahli-ahlinya tiada meletakkan jawatan ataupun dihentikan perlantikan mereka di bawah Undang-undang Tubuh Perak;

 

(iii) Bahawa kamu dan yang lain telah secara salah menduduki dan mengambil milikan pejabat Setiausaha Kerajaan Negeri dan oleh itu adalah penceroboh;

 

(iv) Bahawa tindakan kamu membentuk suatu penghinaan Dewan Negeri kita yang mulia dan menghalang perjalanan lancar dan fungsinya;

 

(v) Bahawa tindakan menghina oleh kamu telah memalukan YB Menteri Besar, Dato’ Seri Mohammad Nizar Jamaluddin dan ahli-ahli Majlis EXCO dan membendung mereka daripada menjalankan dan melaksanakan tugas-tugas mereka;

 

(vi) Bahawa tindakan yang menghina oleh kamu adalah kelakuan tak senonoh sebagai seorang ahli Dewan Negeri kita yang mulia ini adalah bertentangan Perintah-Perintah Tetap, Undang-Undang Tubuh Perak dan Rukun Negara, khasnya, Rukun No. 5 Kesopanan Dan Kesusilaan;

 

(vii) Bahawa tindakan tak senonoh kamu telah mencemar nama baik Dewan Undangan kita yang mulia ini dan membawa kehinaan, cemuhan, kebencian dan keaiban kepada Dewan;

 

(viii) Bahawa tindakan tak senonoh kamu bermaksud suatu kelakuan rasuah, derhaka, pengaruh tak wajar, biadap dan pemerintahan buruk.”

 

(b) Untuk Enam Exco Perak (LAMPIRAN 6)

 

“(i) Bahawa bertentangan dengan peruntukan Undang-Undang Tubuh Negeri Perak kamu telah dan masih secara salah menjawat sebagai ahli EXCO;

 

(ii) Bahawa kamu telah menyalahi undang-undang dengan membentukkan suatu Majlis EXCO walaupun wujudnya sebuah EXCO yang dilantik secara sah, yang mana ahli-ahlinya tiada meletakkan jawatan ataupun dihentikan perlantikan mereka di bawah Undang-Undang Tubuh Perak;

 

(iii) Bahawa kamu dan yang lain telah secara salah menduduki dan mengambil milikan pejabat Setiausaha Kerajaan Negeri dan oleh itu adalah penceroboh;

 

(iv) Bahawa tindakan di atas membentuk suatu penghinaan Dewan Negeri kita yang mulia dan menghalang perjalanan lancar dan fungsinya;

 

(v) Bahawa tindakan menghina oleh kamu telah memalukan YAB Menteri Besar, Dato’ Seri Mohammad Nizar Jamaluddin dan ahli-ahli Majlis EXCO dan membendung mereka daripada menjalankan dan melaksanakan tugas-tugas mereka;

 

(vi) Bahawa tindakan yang menghina oleh kamu adalah kelakuan tak senonoh sebagai ahli Dewan Negeri kita yang mulia ini dan adalah bertentangan Perintah-Perintah Tetap, Undang-Undang Tubuh Perak dan Rukun Negara, khasnya, Rukun No. 5 Kesopanan Dan Kesusilaan;

 

(vii) Bahawa tindakan tak senonoh kamu telah mencemar nama baik Dewan Undangan kita yang mulia ini dan membawa kehinaan, cemuhan, kebencian dan keaiban kepada Dewan.”

 

Persoalan pokok di sini ialah bukankah DYMM Paduka Seri Sultan telah perkenan mengadap dan mengangkat sumpah jawatan YAB MB Perak pada 6hb Februari 2009 manakala enam Exco pada 10hb Februari 2009. Jika menerima perlantikan jawatan YAB MB Perak dan Exco adalah suatu penghinaan (contempt) kepada Dewan Negeri, tidak menerimanya pula adalah suatu penderhakaan (traitor) terhadap kuasa mutlak DYMM Paduka Seri Sultan Perak.

 

Kesimpulan saya daripada di atas adalah berikut:

 

(i) Oleh kerana pihak pembangkang mengakui prinsip ketidakbolehan cabaran (non-justiciability) kuasa DYMM Paduka Seri Sultan melantik Menteri Besar dan barisan Exconya, YAB MB Perak dan Enam Exconya telah dijadikan mangsa serangan (obvious target);

 

(ii) Ianya adalah serangan secara pintu belakang (back door challenge) disebabkan prinsip ketidakbolehan cabaran (non-justiciability); dan

 

(iii) Suatu lagi contoh penggunaan kuasa secara keterlaluan oleh YB Sivakumar selaku Yang Dipertua Dewan Negeri Perak tanpa mengambil kira prinsip pecahan kuasa iaitu DYMM Paduka Seri Sultan Perak selaku Ketua Negeri dan di bawahnya adalah Badan Legislatif dan Eksekutif.

 

E. “Mesyuarat bawah pokok” – tidak sah

 

Adalah mengelirukan pada hemat saya, apabila Saudara Hanipa mengatakan bahawa penggantungan YAB MB dan Enam Exconya telah diterima (endorsed) di sidang bawah pokok kerana alasan-alasan berikut:

 

(i) Perintah Tetap 10, Perintah-perintah Tetap Dewan Perhimpunan Undangan Negeri Perak Darul Ridzuan (LAMPIRAN 7) jelas mewajibkan perisytiharan DYMM Paduka Seri Sultan di dalam warta;

 

(ii) Mesyuarat bawah pokok pada 3hb Mac 2009 tidak mendapat perkenan, tiada perisytiharan DYMM Paduka Seri Sultan dan diwartakan; dan

 

(iii) Ketiga-tiga mesyuarat di dalam Penggal yang terdahulu, yang terakhir berakhir pada 13hb November 2008, mempunyai perisytiharan DYMM Paduka Seri Sultan dan diwartakan. Ianya telah diikuti secara ketat oleh YB Dato’ Seri Ir Mohd Nizar Ahmad Jamaludin sewaktu beliau menjadi Menteri Besar Perak.

 

F. Kesimpulan

 

Adalah hujahan saya bahawa perintah Mahkamah Persekutuan yang diperolehi pada 16hb April 2009 adalah konklusif dan tidak boleh dipertikaikan. Ianya juga bukan akademik semata-mata tetapi menjawab persoalan kepada tindakan pertama dan lain-lain yang berkaitan dengannya.

  

©Umno Online

Fed Court to Interpret Perak Ruler’s Powers to Appoint MB

By : V. Anbalagan

 

 

PUTRAJAYA

Wed: 2009/04/22

 

The two month old Perak constitutional crisis could be over sooner than expected. Datuk Seri Dr Zambry Abdul Kadir has filed an application in the Federal Court for an interpretation of the Sultan’s prerogative power under the Perak Constitution to appoint a menteri besar. The Federal Court has fixed the matter for hearing on Tuesday.

 

 

Zambry’s application, made under Article 63 of the State Constitution, was filed by his solicitors Zul Rafique and Partners at the Federal Court registry on Monday.

 

This express route is taken following the apex court’s landmark ruling on April 8 that it can decide the status of three independent assemblymen who are friendly to the Barisan Nasional.

 

Article 63 states that a party to a proceeding in a High Court can go direct to the Federal Court if there was a serious question of law to be determined.

 

[On April 9, a five-man bench unanimously declared that the three independents were still assemblymen and the Election Commission was the rightful entity to establish a casual vacancy and not the state legislative assembly Speaker.]

 

In his application, Zambry wants the Federal Court to clarify the position of Article 16 (2) and Article 16 (6) of the Perak Constitution.

 

He posed three questions:

 

• whether the ruler had the right to refuse consent to the dissolution of the assembly by ousted menteri besar Datuk Seri Mohd Nizar Jamaluddin when he had lost the confidence of the majority assemblymen;

 

• whether upon refusal by the ruler to dissolve the assembly, should Nizar and his executive councillors tender their resignations; and

 

• Whether the ruler can appoint Zambry as menteri besar after due inquiry that Nizar had lost the confidence of the majority assemblymen although a vote of no confidence was not taken in the assembly.

 

If the above questions are in the affirmative, Zambry wants the court to declare that his appointment as Menteri Besar on Feb 6 was in accordance with Article 16 (2) of the Perak Constitution.

 

Zambry said his grounds for the application was premised on the basis that the apex court could now decide on the appointment and removal of menteri besar as it was allowed under the Perak Constitution.

 

He said the questions of general principles posed would be decided for the first time, and it was of public importance as it involved the major concerns of the people of Perak.

 

Nizar claimed that he was still the legitimate menteri besar on grounds that there was no dissolution of the state legislative assembly, no motion confidence was taken in the house against him and he did not resign.

 

He also issued a write of quo warranto asking Zambry to show cause by what authority he was occupying the post.

 

 

©NST

Perak crisis: Zambry versus Sivakumar

By Justice (rtd) NH Chan*

 

April 18, 2009

http://www.malaysiakini.com

 

 

The Federal Court decision that Perak speaker V Sivakumar did not have the right to suspend BN Menteri Besar Zambry Abd Kadir and his six cabinet members is a perverse judgment. It is perverse because it is a decision that was made in blatant defiance of Article 72 (1) of the Federal Constitution which says, “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.

 

The judges of the Federal Court have failed the people and the government of this country when they chose to ignore the law of the Constitution of Malaysia. In other words, the judges have refused to do justice according to law. Incidentally, ultra vires does not mean “outside the law”. It means “outside one’s jurisdiction, beyond the scope of one’s power or authority”.

 

And we may ask, who is the Federal Court to say what is beyond the jurisdiction of the speaker when the supreme law of the country says that “the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.

 

Don’t these judges realise that they have actually done a disservice to the government of the day? Perhaps they have never heard of the Taff Vale case.

 

In 1900, the English House of Lords, which is the highest court in the land just as our Federal Court is the highest court in this country, handed down an outrageous decision which was unpopular to the common people of England.

 

Voters threw out Government after Judges erred

 

The judges of the House of Lords by their judgment had unwittingly done a great disservice to the Conservative government of the day because in the general election of 1906, it was toppled by a landslide.

 

The case which was the cause of the fall of the Conservative government was Taff Vale Railway Company versus Amalgamated Society of Railway Servants.

 

It is best that I let Lord Denning take up the story from his book ‘Landmarks in the Law’:

 

“There was the great Taff Vale case. To understand it, you must know that the trade unions were virtually friendly societies. The members paid their subscriptions into a fund, out of which benefits could be paid to members if they were ill or out of employment.

 

“Now in the Taff Vale case, the railwaymen’s union called a strike at the railway station at Cardiff. The men left work and set up peaceful pickets so as to persuade others not to go to work. The trains could not run, and the company lost money. The railway were advised to bring an action against the union itself, seeking an injunction and damages. The Court of Appeal threw out the action.

 

“But the House of Lords, in a startling judgment, overruled the Court of Appeal. They issued an interlocutory injunction against the trade union itself, restraining it from setting up the pickets, and said that the railway company could recover damages which could be enforced against trade union funds.

 

“Later, at the trial itself, the damages were assessed at £23,000 and that sum was paid out of the funds of the trade union. £23,000 in 1900. What would that be now?

 

“In the eyes of trade unions, that was an outrageous decision. It meant that the railway company could take all the funds subscribed by the members so as to meet the damages. It meant that, in future, a trade union could never call a strike, else it would be in peril of losing all its funds. It meant virtually the end of trade unions. As GM Trevelyan says in his History: ‘It struck at the very heart of trade union action’.

 

“That case had immense political consequences. At the general election of 1906, there came into being a new political party. It was the Labour party. They ran a host of candidates themselves. They pledged complete immunity for trade unions. Many of the Liberal candidates gave the same pledge.

 

“The result of the general election was like an earthquake. Liberals had 397 seats. The new Labour party had 50 seats. The Conservatives only 157. It was a sweeping victory for the trade unions.

 

“Parliament immediately passed the Trade Disputes Act 1906. It is probably the most important Act ever put into the Statute Book. It reversed all the judicial decisions against trade unions. The Taff Vale case was overruled. No trade union could thereafter be sued for damages for any wrongs done by its members. Its funds were unassailable.”

 

I think the message of the Taff Vale case to our judges of the Federal Court should be clear enough. The electorate may decide, just as the voters did in 1906 England to throw out the Conservative government, to use the power of their vote to unseat the BN government in the next general election because they do not trust the judges.

 

What if Speaker ignores court decision?

 

Poor Najib Abdul Razak, our new prime minister, it is the judges who have let him down. Unfortunately it would be the prime minister who has to carry the baby, but not the irresponsible judges who did all the damage by not administering justice according to law.

 

The law, in the present context, is the Federal Constitution, in particular, Article 72 which states:

 

(1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

 

(2) No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the Legislative Assembly of any State or of any committee thereof.

 

(3) No person shall be liable to any proceedings in any court in respect of anything published by or under the authority of the Legislative Assembly of any State.

 

Suppose Sivakumar were to ignore the declarative decree of the Federal Court, what then?

 

Clause (2) of Article 72 of the Federal Constitution says that “No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the Legislative Assembly of any State or of any committee thereof’.

 

The Federal Court can say anything they like but the speaker is not liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the legislative assembly.

 

The order of the Federal Court seems to me to be a ‘brutum fulmen’, which in Latin means “ineffectual thunderbolt” – an action which is loud but ineffective.

_____________________________________________________________________________________________________________________________

*Justice (rtd) NH CHAN is a former Court of Appeal judge famous for his ‘All is not well in the House of Denmark’ comment regarding judicial corruption. He was then referring to High Court’s commercial division which was located in Wisma Denmark, Kuala Lumpur. The quote is based on Shakespeare’s ‘Something is rotten in the state of Denmark’. He now lives in Ipoh.

 

Harsh Statements About The Sultan.

NH CHAN

Former Court of Appeal judge

 

20th February 2009

Malaysiakini.

 

Now we know why the people of Perak and elsewhere in Malaysia, are making harsh statements about the sultan. A quick search on the Internet will prove this.

 

It is the perception of the people that matters; and the confidence of the people is destroyed when they go away thinking that he was biased – that he had been influenced by Najib.

 

It is very sad that Sultan Azlan Shah, who had been held in high esteem internationally and by the populace, has, in a careless moment, lost all that.

 

His reputation for fairness and justice has been shattered when they go away thinking that he had been influenced by Najib or that he has favoured BN. It does not matter whether he did, in fact, favour one side unfairly.

 

Suffice it that reasonable people might think that he did. The die is cast and we cannot put the clock back. Hereafter, there may be many who will no longer believe in his speeches on good governance and the integrity of the judiciary.

 

The impression is that he does not practise what he preaches.

 

When the menteri besar ceases to command the confidence of the majority of the members of the legislative assembly, he has two choices.

 

First, he may request the ruler to dissolve the assembly for the purpose of a state election. Second, if his request is turned down by the ruler, “he shall tender the resignation of the executive council”.

 

This is provided in Article XVI, Clause (6) which reads: “(6) if the Menteri 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.”

 

What Article XVI, Clause (6) says is this: If the menteri besar ceases to command the confidence of the majority of the legislative assembly, he shall tender the resignation of the executive council, unless the ruler has, at the request of the menteri besar, dissolved the legislative assembly.

 

However, in the present case, Mohd Nizar on Feb 4, had requested the ruler to dissolve the legislative assembly, and the ruler informed him on Feb 5 that he acted in his discretion to withhold his consent for the dissolution of the assembly.

 

That being the case, the menteri besar has no other choice but to tender the resignation of the executive council.

 

Under Article XWI, Clause (2), paragraph (b), the ruler has a personal discretion to withhold his consent to the menteri besar’s request for the dissolution of the legislative assembly.

 

Unfortunately, the ruler, in the present case, has acted unconstitutionally when he side stepped the constitutional provisions of Article XVI, Clause (6) of the laws of the Perak constitution.

 

This was what he did.

 

The Sultan of Perak’s media statement said: “Mohd Nizar was summoned to an audience with the sultan to be informed of the ruler’s decision not to dissolve the State Assembly, and in accordance with the provisions of Article XVI (6) of the Perak Darul Ridzuan State Constitution, the Sultan of Perak ordered Mohd Nizar to resign from his post as Perak menteri besar together with the members of the state executive council with immediate effect.

 

“If Mohd Nizar does not resign from his post as Perak menteri besar together with the state executive council members, then the posts of menteri besar and state executive councillors are regarded as vacant.”

 

As we know the sultan is a constitutional monarch who has no power to rule except a couple of discretionary powers mentioned in Article XVIII, Clause (2).

 

So, apart from the couple of matters mentioned in Article XVIII, Clause (2), the Sultan of Perak has no power to order Mohd Nizar to resign from his post as Perak menteri besar together with the members of the state executive council with immediate effect.

 

Nor has he the power to declare that the posts of menteri besar and state executive councillors are regarded as vacant.

 

In the present case, the menteri besar had acted under Article XVI, Clause (6) which permitted him to request the ruler to dissolve the legislative assembly if he ceased to command the confidence of the majority of the members of the legislative assembly.

 

 

In this case, the ruler turned down his request. Then the menteri besar has no choice but “to tender the resignation of the executive council”.

 

So, why did the ruler, in the present case, depart from the provisions of Article XVI, Clause (6)?

 

Under the provisions of Clause (6), the sultan knew that the ball was in the menteri besar’s court and it was to be the menteri besar who “should tender the resignation of the executive council”.

 

Yet he chose to ignore these provisions of the Perak constitution.

___________________________________________________________________________________________________________________________

*Justice (rtd) NH CHAN is a former Court of Appeal judge famous for his ‘All is not well in the House of Denmark’ comment regarding judicial corruption. He was then referring to High Court’s commercial division which was located in Wisma Denmark, Kuala Lumpur. The quote is based on Shakespeare’s ‘Something is rotten in the state of Denmark’. He now lives in Ipoh.

Unclear Limits of Discretion

The Constitution is still evolving and responding to the times, and only the future will tell the shape of things to come.

 

Reflecting on the Law

 

By Dr. Shad Saleem Faruqi

Wednesday, 22 April 2009

  

EVER since the general election of March 2008, and especially after the constitutional temasyah in Perak, an animated debate is raging about the powers and position of the Malay Rulers.

 

History: Malay kingship existed as early as the first century and the powers of the Sultans were nearly absolute through much of history. During the colonial period these powers waned.

 

The decline began with the absorption of Malay kingdoms into the Federated Malay States of 1895 and the Federation of Malaya 1948.

 

The Merdeka Constitution of 1957 restored the honours and dignities of the Sultans but at the same time converted the Rulers to constitutional monarchs.

 

Save for a limited number of situations in which a margin of discretion is conferred, the federal and state Constitutions require the Yang di-Pertuan Agong and the Rulers to act on the advice of the elected political executive.

 

During the last 52 years things did not always work this way. In the 60s and 70s the influence of the Sultans on government and society was far greater than what the Constitution envisaged. History overshadowed the law.

 

The 80s and 90s saw several constitutional amendments to curb royal powers. The Yang di-Pertuan Agong and the Sultans could be bypassed in the ordinary legislative process.

 

Royal immunities were abolished. If sentenced to more than one day of imprisonment, a Ruler could be removed from his throne unless pardoned by the Majlis Raja-Raja.

 

However, the spirals of history are at work again. Some sections of the population, including many members of the legal community, are beginning to view the Rulers as the last bastion against the political executive’s omnipotence.

 

In response to these popular sentiments and in order to recover ground that was lost in the 80s and 90s, the Conference of Rulers, the Yang di-Pertuan Agong and the state Rulers have lately shown tremendous assertiveness in a number of areas.

 

Leading examples relate to appointments to the superior courts, refusal to extend the tenure of a retiring Chief Justice, appointment of Chief Ministers in Perlis, Terengganu, Perak and Selangor after the March 2008 general election, refusal of premature dissolution of the Perak Assembly, dismissal of a Chief Minister and appointment of a new Chief Minister in Perak early this year.

 

A few weeks ago, in exercise of its powers under Article 38(2) to deliberate on questions of national policy, the Majlis Raja-Raja appointed the Yang di-Pertuan Agong as the Patron of Universiti Sains Malaysia to keep the Conference informed of USM’s progress as an apex university.

 

Some of these royal assertions have raised eyebrows. Questions are being asked whether an activist monarchy is compatible with the letter and spirit of the Federal Constitution.

 

In this area the “glittering generalities” of the Constitution provide ample scope for a kaleidoscope of views.

 

Let us examine the constitutional canvass.

 

Constitutional monarchs: Article 71 and the Eighth Schedule of the Federal Constitution require that all state Constitutions shall contain some “essential provisions”.

 

The most significant provision is that, except in relation to discretionary powers, all state Rulers “shall act in accordance with the advice of the Executive Council”.

 

The implication of this is that the state Rulers is not absolute monarchs. They are not expected to rule in person or to seek to control the day-to-day administration of government.

 

However, the Constitution is equally clear that Their Majesties are anointed with certain discretionary powers in critical areas.

 

Personal powers: All state Constitutions confer discretionary powers on the Rulers in relation to the following matters:

 

·         Any function as Head of the Muslim religion or relating to Malay adat;

 

·         The appointment of heir, consort, Regent, Council of Regency and Council of Succession;

 

·         Appointments to Malay customary ranks, titles, honours and dignities; and,

 

·         Regulation of royal courts and palaces.

 

In addition, there is a right to succeed to the throne in accordance with the Constitution of the state and without interference from the Federal Government.

 

Though immunities are abolished, some special treatment is still accorded. No one can sue or prosecute a Sultan without the Attorney-General’s consent. Cases will not be heard in ordinary courts but in a Special Court. The Majlis will nominate two out of five judges to the court. If a Sultan is convicted of a crime the Majlis can pardon him.

 

Political powers: Though the Sultans are above politics, federal and state Constitutions confer on them some monumentally important political discretions.

 

Under Article 38(6) of the Federal Constitution, all Sultans in their capacity as members of the Conference of Rulers may act in accordance with their wishes in the following matters:

 

•              Proceedings relating to the election or removal of the Yang di-Pertuan Agong;

 

•              Election of the Timbalan Yang di-Pertuan Agong;

 

•              The advising on many key federal appointments;

 

•              The giving or withholding of consent to any law altering the boundaries of a state;

 

•              The giving or withholding of consent to any law affecting the privileges and position, honours or dignities of the Rulers;

 

•              Agreeing or disagreeing to the extension of any religious acts, observances and ceremonies to the Federation as a whole; and,

 

•              Appointment of members of the Special Court under Article 182(1).

 

Under section 1(2) of Part I of the Eighth Schedule of the Federal Constitution and in various provisions of State Constitutions the Rulers are allowed to exercise personal judgment in the following matters:

 

•              Appointment of a Mentri Besar;

 

•              Withholding of consent to a request for the dissolution of the Assembly; and,

 

•              The making of a request for a meeting of the Conference of Rulers.

 

Two of the above powers were exercised in Perak with telling effect a few weeks ago.

 

Under state Constitutions every Sultan has a prerogative to advise, to encourage and to warn. He can remonstrate and object to a proposed course of action. He can delay action on a matter referred to him. But after a reasonable time he must accede to advice.

 

Some states Constitutions confer additional discretionary powers. For example, the Laws of the Constitution of Kelantan invest His Royal Highness with personal powers in the matter of appointment of some officials (Article 13), appeals to the Sultan against decisions of any person (Article 25), and appointment of the State Service Commission (Article 61).

 

Legally, these discretionary powers are very broad. In actual practice, they are hemmed in by constitutional guidelines and by binding conventions that “supply the flesh to clothe the dry bones of the law”.

 

In sum, it can be stated that despite their overall role as constitutional heads who reign but do not rule; who are above politics; who supply the unifying and dignifying element of state Constitutions; the Malay Rulers have an undoubted residue of critical, discretionary powers whose actual ambit has not yet been authoritatively determined.

 

The Constitution is still evolving and responding to the felt necessities of the times. The British model of a largely ceremonial monarchy has not taken hold. Only the future will tell the shape of things to come.

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Dr Shad Saleem Faruqi is Professor Emeritus at Universiti Teknologi MARA.

 

©Star

An Avalanche of Legal Issues

Reflecting On the Law

By Dr.Shad Saleem Faruqi

Wednesday March 25, 2009

The legal skirmishes triggered by the four Perak assemblymen who defected have sullied the reputations of several hallowed institutions and opened up new legal frontiers where no Malaysian has up to now travelled.

THE four Perak Assemblymen who slithered down the treacherous slope of defections could not have anticipated the political and legal avalanche they have triggered.

The punches and counter-punches and the legal skirmishes over issues of procedure and substance are opening up new legal frontiers where no Malaysian has up to now travelled.

Several constitutional institutions, including the state’s Sultan, the Election Commission, the Attorney-General’s office, the police, the Malaysian Anti-Corruption Commission, the State Speaker and the Secretary to the State Assembly, have become embroiled in the controversy and have had their good names sullied.

The judiciary has not been spared.

When the case first reached the courts, a Judicial Commissioner gave judgments that defy understanding. To have a Judicial Commissioner and not a senior High Court judge presiding over this novel constitutional case was indeed disappointing.

Hearings were not in open court but in chambers. The Speaker of the Perak Assembly was declared to be a public servant despite indisputable legal evidence that he is exempted from such a definition.

The Speaker was not allowed to be represented by private lawyers. He was not even allowed to represent himself!

There was an unbelievable ruling that no conflict of interest existed in the state legal adviser representing the unwilling Speaker against the state government!

These initial judicial missteps were fortunately corrected on appeal but they left a bad feeling and sullied the reputation of a hallowed institution whose resurgence we were all praying for.

Defections: As opposed to the stability of the American presidential system, governments in parliamentary democracies often rise and fall because of political defections.

Unfortunately, the right to disassociate and re-associate is part of the fundamental right to association under the Federal Constitution’s Article 10(1) (c) and the decision in Nordin Salleh (1992).

We need a constitutional amendment to Articles 10(1) and 48(6). There are eminent legal models available in other Commonwealth countries. MPs and Assemblymen who hop midstream should be required to vacate their seats and seek a fresh mandate from their constituency.

Dissolution: The right to refuse a premature dissolution is an undoubted constitutional discretion of the Sultan under Article 18(2) (b) and 36(2) of the Perak Constitution.

We have instances in Kelantan in 1977 and in Sabah in the 90s when requests by MBs for premature dissolution were politely turned down. Judicial authority in Datuk Amir Kahar (1995) confirms the non-reviewability of this discretion.

Even if it is argued that the Sultan was bound by constitutional convention to pay heed to the advice of the then beleaguered MB, it must be noted that constitutional conventions are not law. They are rules of political morality that are non-enforceable in a court: Government of Kelantan v Government of Malaya (1963).

Dismissal of MB: This poses more complex issues. Article 16(7) of the Perak Constitution implies that the Sultan has no power to dismiss an MB. An MB’s cessation of office must come about by resignation under Article 16(6):

“If the Menteri 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.”

The Sarawak case of Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli (1966) ruled that lack of confidence may be demonstrated only by a vote of no-confidence in the Council Negeri. Factors outside the Council Negeri are irrelevant.

The High Court will have to decide whether to follow Ningkan or to distinguish it on many grounds, among them, that in Sarawak in 1966 the Assembly was in session when the Governor sacked Ningkan. In Perak, the Assembly was in adjournment and a vote on the floor was, therefore, not possible.

The High Court may also note that Article 16(6) does not make any explicit reference to a vote of no-confidence in the Assembly. It uses the words “confidence of the majority of the members of the Assembly”.

The Privy Council in Adegbenro v Akintola (1963) and the Sabah High Court in Datuk Amir Kahar (1995) have held that factors other than a vote of no confidence can be taken note of in determining the question of confidence, and that there is no limitation to the consideration of factors outside the Assembly.

There was an additional complication. The Speaker of the Assembly declared that the hoppers had ceased to be members of the Assembly. With them excluded, Nizar disputed the loss of confidence and therefore refused to resign under Article 16(6).

In such a stalemate, did the Sultan have a residual, prerogative power to dismiss Nizar? In addition could His Highness rely on section 47 of the Interpretation Act that the power to appoint includes the power to dismiss? The court has to decide.

Appointment of MB: This is a discretionary function but is controlled and structured by constitutional guidelines. The Sultan has to appoint someone who, in his opinion, is likely to command the confidence of the State Assembly.

If there is a clear-cut leader with the requisite numbers, the discretion of the Ruler is merely nominal. But in an Assembly where no one has a clear majority, (a “hung Assembly”) the Sultan’s personal discretion acquires great significance.

In this case, the Sultan was obviously of the view that Zamri had the requisite numbers and therefore swore him in. The Sultan relied on face to face, separate interviews with the actors involved. The court will have to determine whether this manner of determination is legally justified.

Along with the above contentious issues there is a whole range of controversies that the Perak crisis has engendered.

Powers of Sultan: Can a Sultan be sued in the courts for his official acts? Is a threat to sue tantamount to sedition or treason?

Speaker’s powers: If open-dated resignation letters have no effect, as was determined in Datuk Ong Kee Hui v Sinyium (1983), can the Speaker still rely on them to declare that four Assembly seats have fallen vacant?

Is the Election Commission bound by the rulings of the Speaker on this point or can it decide on the issue independently?

The Speaker of an Assembly is indeed the master of proceedings and procedures in his Assembly, but does his power go so far as to declare seats vacant and to deprive members of their legal right to attend? Is his decision absolutely unimpeachable in any court?

In India, courts do not refrain from pronouncing on the validity of decisions in the House if human rights or constitutional issue are involved.

If the Assembly was not under prorogation but merely under adjournment, can the Speaker convene it on his own without an order from the Sultan?

Who must issue the summons, the Speaker or the Secretary to the Assembly? Does the Speaker have the power to dismiss a disobedient Assembly Secretary?

Privileges committee: The committee has undoubted powers to try members for contempt. But its decisions are not final and any recommendation to dismiss, suspend or discipline members must be confirmed by the Assembly.

Immunity of members: There is no legal bar to the Assembly meeting outside its official premises. The constitutional issue is whether those, including the police, who obstructed the Assembly from meeting are liable to punishment by the Assembly for contempt?

Likewise, are the police and the Anti-Corruption Commission guilty of serious breach of the privileges of the Assembly by questioning the Speaker and Privileges Committee members for their official conduct?

These are serious triable issues. Our answers to them must not be based on expediency or political partisanship but on well established principles of constitutional law.

_______________________________________________________________________________________________________________________

Dr Shad Faruqi is Professor of Law at Universiti Teknologi MARA.

 

©Star

Malaysian PM Abdullah Badawi To Quit In March 2009.

Malaysian PM Abdullah Badawi To Quit In March 2009. 

 

Malaysia’s Prime Minister Abdullah Ahmad Badawi has announced that he will step down from office in March 2009.

 

The move will effectively hand power of the ruling National Front coalition, and therefore the job of prime minister, to his deputy Muhammad Najib Razak.

 

Abdullah Badawi has been under pressure to quit since disastrous election results earlier this year. He has faced discontent within his own party, and also an increasingly strong opposition led by Anwar Ibrahim.

 

By tradition, the president of UMNO is leader of the coalition government and therefore prime minister as long as the coalition is in power.

 

Mr Abdullah resisted pressure to resign in the immediate aftermath of the election result in March 2008, in which the government lost its two-thirds majority in parliament for the first time since Malaysian independence.

 

Many of UMNO’s traditional supporters from the majority Malay community switched allegiance to Anwar Ibrahim’s multiracial coalition, the People’s Alliance [Pakatan Rakyat].

 

In the months after the polls, Abdullah hammered out a plan for a transition of power to Mr Najib in 2010, but his critics still remained unsatisfied.

 

Anwar Ibrahim is now threatening to bring down the government with parliamentary defections from the National Front. But many  seen it as just a gimmick that not likely to happen.