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.
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.
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.
|Nizar: Malaysia menuju monarki mutlak|
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.
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.
“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.