Looks like it…
Has the law become an ass?
FEB 10 2010— For an event with only two outcomes, there is a 50-50 chance of it happening either way. So you would have thought. Consequently, many wanted the verdict of 9 February of the country’s top judges in the apex court to reflect that logical outcome. More so in a constitutional impasse that has drawn attention of the entire nation, nay the entire world.
But wouldn’t it be a wishful thinking to have ever thought that MB Nizar would win? Yes, perhaps, given the state of our very-much-to-be-desired judiciary. But in a not-so-clear-a-case like this acrimonious debate, you still harbour a little hope for a close call at least.
When the federal court returned a verdict of a thrashing 5-0 win to MB Zambry, you can’t blame the many that have alleged that the law has truly become an ass. I could still recall MB Nizar wanted a full 9-member bench. The country has just been saved from being humiliated, the greatest shame of the century with a 9-0 verdict!
In the same vein, imagine the battle of two titans in a world cup with an outcome of 5-0 win. Now imagine a 9-0 win. Mind-shattering, too bizarre! That’s exactly the state of affairs in our beloved country right now, Mr PM. Beleaguered.
It’s most pathetic to have heard you, Mr PM, say, “let’s accept the court’s verdict and move on”. That was your knee-jerk response as usual, nothing really go high up beyond your brain-stem. You have ‘to say something’ each time and you did. But true leaders have really ‘something to say’, regrettably, you didn’t.
We shall wait in anticipation, for the time when the rakyat will one day tell you to just accept the verdict of the election, Najib ie your defeat, and move on. It may not be the next 13th GE as yet. But it could well be. You and your First Lady must pack your bags and get out of Putrajaya.
If you could gladly and heartily accept the verdict of that election that makes you the man who has led one of the world’s longest-governing parties to defeat, perhaps we might reconsider our revulsion and disgust to this verdict. Perhaps we could emulate your magnanimity and grace. But could you accept defeat and just move on?
Be that as it may, the country has got to absorb the far-reaching implications of this verdict. Cynicism aside, I now write with a bipartisan interest, with the Federal Constitution (FC), the nation and the rakyat at heart.
Of the many implications, this piece is only highlighting one. But this one implication must be unequivocally and categorically said as it is the one that revises and transforms the FC through a backdoor manner of sort.
Never before had I wished to have a doctorate in law, only when ‘lawlessness’ and the assault on the FC have reached levels that were previously unimaginable. Yes, the verdict has outrightly disfigured the notion or doctrine of a constitutional monarchy.
Amidst their euphoria, the BN leaders seemed oblivious of the full import of the verdict. With the judgment by none other than the top judges of the apex court of the country, the principles governing a vibrant and functional parliamentary democracy is seriously challenged and critically compromised.
Do judges really understand the concept of responsible government, where it is a conception of a system of government that embodies the principle of parliamentary accountability responsible to parliament (and if bicameral, primarily to The Dewan Rakyat, which is directly elected, and thus more representative than the Dewan Negara) rather than to the monarch, or, in the colonial context, to the imperial government.
The apex court has added another case to a list of cases that contravenes the very notion of constitutionalism and representative democracy, the very heartbeat of the FC. That the Monarch could refuse the appointment of a Menteri Besar chosen by the party in power is admittedly arguable as in Terengganu. That didn’t directly impinge and intrude on the practice of democracy but more appropriately to save democracy.
But if the Monarch could now dismiss the lawful Menteri Besar (and by so doing brings down a government i.e. causing a regime change) if he so chooses, one that is democratically elected and appointed by the people, this is totally not analogous and different from the former.
In very plain English, the Federal Court affirmed the role played by Sultan Azlan Shah in the change of government in Perak a year ago. The apex court concurred with the appellate court’s ruling that MB Nizar must resign after failing to get the Perak Sultan to dissolve the state assembly to pave the way for fresh elections.
It was the Sultan who interviewed the three elected representatives who resigned from Pakatan Rakyat and concluded that MB Nizar had lost the confidence of the state assembly. Incidentally, two of the three assemblymen were under indictment for corruption.
In the true spirit of a responsible government and a country that upholds constitutional monarchy, renowned constitutional law experts from Malaysia and abroad, had critically opined that the proper forum to test a motion of no confidence should be the legislative assembly. The judges were also quick to penalise Nizar’s lawyers on a technical ground of not resorting to the right provision in their submission. But judges of such stature surely need no reminders from lay people to see the bigger picture of constitutionalism and its underpinning objectives.
The court in this instance has added another case to a list of cases that contravenes the idea of constitutionalism and democracy, which stand at the very heart of the FC. That is actually the bone of contention in this debate.
The intervention of the royal household indeed invited scorn from Malaysians and subsequently embroiled the Monarch and the palace into disrepute. This is most regrettable much as it is disfiguring the notion of a constitutional monarchy. But the powers-that-be are not concern as long as they could achieve their political ends. In simple plain English again, theirs have now become a government appointed by the Monarch, not elected by the people.
Has the anger and disappointment with the palace gone away? No. The Merdeka Center survey shows clearly that a significant percentage of the people of Perak are dissatisfied with the role played by the palace in the Perak power grab.
Some 74 per cent of voters in Perak felt that elections remain the best way to end the impasse in the state. In the same survey conducted by Merdeka Center, voters were asked to choose which they preferred: a. the economy or b. having a democratically-elected government. Sixty per cent of the respondents said they wanted a government elected democratically.
That this is a very sad day for democracy is a gross understatement.
* The views expressed here are the personal opinion of the columnist.
Malaysians at the Federal Court, Putrajaya this morning
MALAYSIA’S DEMOCRACY LACKS SUBSTANCE
| Written by Sharon Tan |
| Tuesday, 09 February 2010 00:15 THE EDGE |
KUALA LUMPUR: Malaysia has a democracy that exists in name but grievously compromised in substance, reality and fact, said Tengku Razaleigh Hamzah, echoing the words of the nation’s founding father Tunku Abdul Rahman Putra Al Haj.
In his speech at the launch of Institute for Democracy and Economic Affairs (Ideas), the Gua Musang MP said Tunku’s memory had been brushed out of the nation’s consciousness.
He said Tunku and his generation built institutions that empowered the people rather than cults of personality to concentrate power and wealth in themselves.
“They reached instinctively for democratic decision making. The concepts and precepts of constitutional democracy were part of their natural vocabulary and instinctive reactions. They knew whom the country belonged to, and that they lived to serve.
“It is no accident that the erasure of his memory has gone hand-in-hand with the erosion of our institutions. Tunku built up a system of good civil service in which ordinary citizens did not need to see so and so to get things done.
“This has been replaced by a domineering style of leadership in which you get things done depending on who you know,” said Tengku Razaleigh.
He also said in place of protection for ordinary citizens guaranteed by popular representation, rule of law and checks and balances of independent institutions, the country now had the cult of great leader.
“In place of a system which was designed to ensure the rights of the ordinary citizen, we have a system re-designed around the interests of corporate and political bosses.
“Ordinary Malaysians are disenfranchised of their rights to health, education and security. They are then patronised by leaders whose idea of public service is to go around like Father Christmas doling out gifts of resources, which are really the property of the people.
“This turns citizens into supplicants. Our properties are converted into gifts from the great leader. Our rights are converted into permissions. Our country has become his country,” said Tengku Razaleigh.
He added that Tunku’s conception of politics and system of government had no place for corrupt practices, arbitrary executive power and the manipulation of racial and religious identity for political gain.
He also said Tunku led and worked with an entire class of individuals schooled in the culture and practice of parliamentary democracy.
“In politics and the civil service they thrived in a time before the machine politics of patronage and low-brow identity politics had sucked the life and talent out of the ruling party and left it filled with people who quite simply don’t have the ability to hold this country together anymore,” he said.
Tengku Razaleigh said Malaysia was still stuck in 1997 where the country faced a mortal crisis.
“If anyone of us was tempted to imagine that Malaysia had outgrown the sordid events of 1997, the government’s newspapers bring to our breakfast tables each day Sodomy 2, to remind us that after a decade of sloganeering, we have come full circle to find ourselves back at the doorstep of our debased institution and a constitution that is increasingly inoperative.
“The progress of the trial of the leader of the opposition, the government’s apparent ignorance of sovereign rights of the states and the way in which we have allowed religious issues to be manipulated, point to that conclusion.
“The constitutional crisis in Perak, in which a government has been installed by illegal means, the failure to implement two Royal Commission of Inquiry findings, point to that conclusion,” he blasted.
The Kelantan prince said the “barbarous political culture” promoted by the establishment media drove home the point that the system of government was still in 1997.
“We are still in the after-wash of a wave of bad taste, authoritarianism and arbitrary power that destroyed our practice of parliamentary democracy, compromised our judiciary and police, and disenfranchised our people.
“To modify Tunku’s words, we now have a democracy ‘existing in name, but grievously compromised in substance, reality and fact’.
“Our penchant for slogans is a reflection of our dislocation from the reality of constitutional and parliamentary democracy. We don’t need slogans. We need our Constitution back,” said Tengku Razaleigh.
He also urged the young people to rise to the task of changing the political system as it had been left too long to the politicians.
“To expect change from the incumbents is to expect, in the Malay saying, the mice to repair the gourd… Bagai tikus baiki labu.
“It is time for us to understand, discuss, organise and act together.
“Tunku was a true Malaysian. As we have forgotten him, we have also forgotten how to be Malaysians. We must learn again how to be free and equal citizens of a constitutional democracy.
“In our national life, we must learn again how to be a federation of sovereign states governed by the rule of law,” said Tengku Razaleigh
At the Federal Court: A Constitutional Crisis
| Malaysia State Constitutional Crisis |
| Written by Our Correspondent Asia Sentinel | |
| Tuesday, 09 February 2010 | |
The courts award Perak to UMNO Any indication that Malaysia’s courts were becoming independent of the government disappeared from view again Tuesday when the five-member Federal Court ruled that United Malays National Organization stalwart Zambry Abdul Kadir is the rightful chief minister of the state of Perak, the country’s second biggest and one of its richest. The state has been caught a constitutional crisis since May of 2009, with the government paralyzed by the controversy over who was actually in charge. Perak had been controlled by the national opposition coalition Pakatan Rakyat as a result of the March 2008 national election, with Mohammad Nizar Jamaluddin as chief minister. However, then-Deputy Prime Minister Najib Tun Razak engineered the defection of three lawmakers, bringing the government to a halt in a 28-28 tie. Upon their defection, Sultan Raja Azlan Shah immediately ordered Nizar to vacate his position and installed Zambry in his place. That kicked off a melee in which 65 people were arrested. Ahead of Tuesday’s decision, Rais yatim, the the Information Communication and Culture Minister Datuk Seri Dr Rais Yatim, was quoted by the state-owned national wire service Bernama as calling on the people to be calm. “We should respect the decision irrespective of whether it favors A or B. We are confident in our judicial system and in the way the law is administered,” Bernama quoted him as saying. Kuala Lumpur High Court Judge Abdul Aziz Rahim ruled on May 11 that the sultan lacked the authority to remove Nizar without a vote of confidence in the statehouse, only to have the appellate court put his decision in abeyance a few hours later. The case – and the Perak state government – have been stalled as the Federal Court, the country’s highest, took up the decision in November and has chewed on it ever since. The ruling, led by Court of Appeal president Alauddin Mohd Sheriff, was built on the premise that the Barisan Nasional, or ruling national coalition, controls 31 votes in the Perak statehouse although no vote has ever been taken, and while the three defectors are said to be leaning towards the Barisan, they have given no official indication that they would cross the aisle. The Election Commission refused a letter proclaiming the realignment of their loyalty, setting the stage for the constitutional crisis. When Nizar refused to go, instead of waiting for Judge Abdul Aziz’s original ruling, elite federal Field Reserve Unit police invaded the Ipoh statehouse on May 7 to drag opposition Speaker V. Sivakumar out of the chambers amid flying furniture and protests that resulted in the arrest of 65 people. As far as can be determined, it is the first time in Malaysian history that federal police had ever entered a legislature. The ruling appears unlikely to end the continuing political uncertainty in either Perak or the government. Political analysts in Kuala Lumpur say the logical solution to the stalemate – a state popular by-election to determine the makeup of the statehouse – is unlikely because Najib and the Barisan do not believe they could win it. The state, long a tin mining center, has an extremely large Chinese and Indian population and the Chinese have largely abandoned the Barisan because of the collapse into scandal of the Malaysian Chinese Association, which is embroiled in infighting over the disappearance of billions of dollars in the attempt to turn Port Klang, 60 km. west of Kuala Lumpur, into a multimodal port. The Barisan instead appears to be counting on time to bring the voters, particularly disaffected ethnic Malays who have abandoned UMNO for the fundamentalist Parti Islam se-Malaysia and Anwar Ibrahim’s Parti Keadilan Rakyat, or People’s Justice Party, because of a long series of scandals and outright crimes. However, Anwar is on trial in Kuala Lumpur in what has been widely billed as Sodomy 2, on charges of sodomizing a former aide in a trial that to everybody but the government itself appears to be built on dubious allegations that were laid to derail the first realistic challenge to the ruling national coalition since the country was formed. In the meantime, his party is beset by infighting in several state assemblies, particularly Penang and Selangor, with a growing number of restive lawmakers threatening to leave the opposition coalition and return to the Barisan. Three have been brought before a disciplinary committee of the opposition coalition seeking answers to questions over their use of personal expense accounts. The coalition that Anwar cobbled together has been an unlikely one from the start, with the Islamic, largely rural and fundamentalist PAS on one side and the ethnic Chinese Democratic Action Party on the other, with Anwar’s moderate, urban Malays in the middle. Zulkifli Nordin, a member of Anwar’s Parti Keadilan Rakyat, was quoted publicly earlier this week as predicting mass resignations over the next two to three weeks over tensions with the DAP and PKR’s difficulty in dealing with them. “The problem was that Anwar rounded up a bunch of incompetents to run in 2008, and disillusionment was so great with UMNO that a lot of people got voted into office who should never have been voted into office,” said a businessman in Kuala Lumpur. The opposition coalition, he said, has thus never been able to capitalize on its gains by actually paying attention to governing. At the same time, the opposition has been harried by Najib’s use of law enforcement powers including the Malaysian Anti-Corruption Commission and others to bring opposition lawmakers in on charges that many observers believe are superfluous. Nonetheless, the court’s decision appears certain to reinforce popular opinion that Malaysia’s judiciary is thoroughly in the pockets of UMNO. That isn’t helped by the case against Anwar, who is charged with having consensual sex with the former aide, a charge that is extremely rare in Malaysia and especially Kuala Lumpur, where gay bars abound and homosexuality isn’t particularly condemned despite the fact that it is nominally against the law. An examination of the evidence against him in similar charges in 1998 leads to the overwhelming conclusion that it was concocted to derail his political career. The case has been put on temporary hold as Anwar’s lead counsel, Karpal Singh, seeks to disqualify the presiding judge, Mohd Zabidin Mohd Diah. |
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The Federal Court, the highest in the country, has delivered a unanimous decision in declaring that Zambry Abd Kadir of BN is the rightful Perak menteri besar (MB).
In doing so just after 11am, it dismissed the appeal by Pakatan Rakyat’s Mohammad Nizar Jamaluddin and delivered perhaps the final blow to his quest to be declared the MB. He can still apply to the court to review its own decision, if he chooses to.
President of the Court of Appeal, Justice Alauddin Mohd Sheriff, led a five-member bench in delivering the verdict.
The others were Chief Judge of Malaya Justice Arifin Zakaria and Justices Zulkefli Ahmad Makinuddin, Mohd Ghazali Mohd Yusoff and Abdull Hamid Embong of the Federal Court.
Justice Arifin who read the solitary judgment for about an hour from 10.15am, reaffirmed the Court of Appeal decision, that the Kuala Lumpur High Court was wrong in not determining that Nizar’s seat was vacant.
He ruled that it is not necessary for a vote of confidence to be done in the state assembly, as the sultan can conduct his own inquiry to determine which party or coalition has the majority.
“This can be done through extraneous sources,” he said.
The sultan would have had sufficient evidence as to who commanded the majority in the Perak assembly or who suffered a lack of confidence, noted the judge.
As such, the sultan would have been able to arrive at a decision (and call for the chief executive to vacate the post). Should an individual refuse to do so, the post can be deemed vacant.
Although Justice Arifin noted that the determination of who holds the majority can be done outside the state legislative assembly, he commented towards the end of the judgment that all is not lost for Nizar (left in photo).
“If he is not satisfied with the decision, he can seek a vote of no confidence against the respondent (Zambry) in the state legislative assembly.”
In deriving the decision, the court also ruled that it would not levy costs on Nizar.
The attorney-general’s (AG) chambers was represented by the head of prosecution division Tun Abdul Majid Tun Hamzah and Kamaluddin Md Said, the head of the Trial and Appeals division.
AG Abdul Gani Patail (right), among those who commented immediately on the ruling, said this was a sound and crucial judgment which encompasses all the previous decisions.
He refuted the suggestion that it would lead to a situation of an “absolute monarchy” – as claimed by Nizar at a press conference – because the constitutional monarchy “and everyone including the judiciary, has a place in the system”.
Nizar’s lawyers were Philip Koh, Chan Kok Keong, Leong Cheok Keng, Edmund Bon, Miohd Hanipa Maidin, Ranjit Singh, and Razlan Hadri Zulkifli.
Zambry’s lawyers are Cecil Abraham and Sunil Abraham. Zambry (left) himself was not present in court for the decision, but responded to the ruling later.
Cecil said the verdict is binding on the federal and state government.
Mohd Hafarizam Harun and M Reza Hassan held a watching brief for Umno.
Previous judicial decisions
BN was seen to have usurped power in Perak when three Pakatan Rakyat assemblypersons switched sides to become BN-friendly Independents in February last year, leading to Pakatan seeking legal recourse.
On May 11, Kuala Lumpur High Court judge Abdul Aziz Abdul Rahim had ruled that Nizar is the rightful menteri besar.
“He is, and was, at all material times the chief minister of Perak,” Abdul Aziz told the court.
However, the appellate court’s three-member bench unanimously overturned the decision in favour of Zambry, saying that the High Court judge had failed to properly and adequately appreciate the entire evidence before him.
“We hold the view that the granting or the withholding of the request for the dissolution of the state legislative assembly is royal prerogative,” ruled Justice Md Raus Sharif.
The Federal Court had, on Nov 5 last year, heard Nizar’s appeal and submission for more then six hours but defer its decision
The court had earlier dismissed Nizar’s application for a full bench of 11 judges or an enlarged panel.
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Here are some responses.
Shad Saleem Faruqi, law professor
The decision is expected. There are two issues – Nizar lost the majority and the sultan rejected his request to dissolve the state assembly. It was a stalemate.I am not surprised with the Federal Court’s decision. Since it is not a clear-cut matter, the court will give Zambry the benefit of the doubt.
George Varughese, Bar Council secretary
It may not be the most popular of decisions, but the highest court has decided. We will have to respect that. Still, I am neither surprised nor happy, as my interpretation of the Perak constitution is not the same as the Federal Court. This is my personal view.
Zaid Ibrahim, former law minister and Pakatan coordinator
As I said before, our judges in the upper echelon of the judiciary will continue to fail the people of this country. Today, the principles governing parliamentary democracy and the rule of law have been sacrificed because they have to please the political masters.
I hope the BN leaders in the midst of their celebrations realise the significance of the ruling. It means that the monarch can refuse the appointment of a menteri besar chosen by the party in power (as in Terengganu) but now can dismiss the lawful menteri besar if he so chooses. Another black day for the country.
Professor Abdul Aziz Bari, constitutional law expert
It is bad news for democracy for the court has reduced the constitution – which sought to put in place a democratic government – to a mere legal document. One wonders whether judges really understood the concept of responsible government.
The court in this instance has added another case to a list of cases that go against the very idea of constitutionalism and democracy, which stand at the very heart of the constitution. It is a pity that the court took a literal and pedantic approach that throws democracy out of the window.
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| Nizar: Malaysia menuju monarki mutlak | |||
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Keputusan Mahkamah Persekutuan hari ini akan mengakibatkan situasi kemungkinan berlakunya monarki mutlak di Malaysia, dakwa menteri besar Perak yang disingkirkan, Datuk Seri Mohammad Nizar Jamaluddin.
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Menurut beliau tidak perlu diadakan pilihan raya kerana raja-raja boleh menentukan siapa yang akan mengetuai kerajaan negeri ataupun pada peringkat persekutuan.
Pada sidang media, sejurus selepas mahkamah menolak permohonannya, hari ini, Nizar berkata: “Ini adalah risiko paling besar yang dihadapi oleh negara masa kini dan kita perlu perbetulkannya. Keputusan mahkamah itu mengketepikan prinsip-prinsip yang ditetapkan dalam perlembagaan.”
Nizar juga berkata dia belum membuat keputusan samada akan merayu berhubung keputusan itu yang mengistiharkan Datuk Seri Zambry Abd Kadir sebagai menteri besar Perak yang sah.
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“Kami akan teliti keputusan bertulis penghakiman dan kemudiannya membuat keputusan,” katanya sambil meminta penyokongnya supaya bertenang.
“Ini adalah hari yang paling sedih bagi Malaysia kerana ia membuktikan sistem penghakiman negara adalah tidak bebas. Sasaran kita sekarang ini ialah merampas semula Perak.
“Rakyat ingin melihat badan kehakiman bebas membuat keputusan. Tetapi berdasarkan apa yang didengar tadi, ia menunjukkan badan kehakiman masih tidak bebas dan dipengaruhi pihak tertentu.”
Menurut Nizar, krisis di Perak tidak sepatutnya berakhir dengan keputusan mahkamah tetapi perlu diserahkan kepada rakyat untuk menentukan siapa yang patut mewakili mereka.
Zambry Or Nizar The Perak MB – Decision On Today
By: Ramjit
PUTRAJAYA, Feb 7 (Bernama) — The conundrum of who is the rightful menteri besar of Perak will be resolved on Tuesday (Feb 9) when the five-man Federal Court bench pronounces its ruling.
The bench, led by Court of Appeal President Tan Sri Alauddin Mohd Sheriff, will decide whether Datuk Seri Dr Zambry Abdul Kadir, 47, of the Barisan Nasional (BN) retains the post or his predecessor Datuk Seri Mohammad Nizar Jamaluddin, 52, of the Pakatan pact of DAP-PKR-PAS reclaims the office.
The judgment will also determine the constitutional issue of whether a head of state can look beyond the legislature to decide if the head of government has lost the confidence of the majority of the elected representatives.
Besides Alauddin, the other members of the bench are Chief Judge of Malaya Tan Sri Arifin Zakaria and Federal Court judges Datuk Zulkefli Ahmad Makinudin, Datuk Wira Ghazali Mohd Yusoff and Datuk Abdull Hamid Embong.
This is the final step in the appeal by Mohammad Nizar in his attempt to reclaim the post of menteri besar. Nevertheless, the losing party in a court case can apply to the Federal Court to review its own ruling under Rule 137 of the Rules of the Federal Court to challenge the constitutional points.
The five-man bench had deferred its judgment on Nov 5 last year after having heard submissions in the appeal from counsel representing both Mohammad Nizar and Dr Zambry.
The conflict over who the rightful menteri besar is arose last year after three Pakatan representatives quit their parties to become independent state assemblymen, leaving Pakatan and the BN with 28 assemblymen each in the 59-seat Perak legislative assembly.
They are Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Mohd Jailu (Changkat Jering), who resigned from PKR on Jan 30, and DAP assemblyman Hee Yit Foong (Jelapang) who followed in their footsteps four days later. All of them declared themselves BN-friendly independents.
The Sultan of Perak, Sultan Azlan Shah, then asked Mohammad Nizar, who is Pasir Panjang assemblyman, to step down as menteri besar and swore in Dr Zambry in February last year after declaring that the BN had the majority in the state assembly.
Mohammad Nizar initiated legal proceedings on Feb 13 last year, seeking a declaration that he is the rightful menteri besar of Perak and an injunction to bar Dr Zambry from discharging his duties as the menteri besar.
In May last year, the High Court reinstated Mohammad Nizar as the legitimate menteri besar but the Court of Appeal reversed that decision and declared Dr Zambry’s appointment as Perak menteri besar constitutional.
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