APEX COURT MUST DECIDE WITHOUT PASSION JOY OR SORROW


The confused and complicated Perak Constitutional tragedy was created by Najib who is widely seen as a megalomaniac has finally reached the Federal Court(FC). The panel constituted of five judges. They heard the arguments from both sides of the divide. The decision is to be delivered at a later date.

For all intent and purpose the FC or the Apex Court would have to give an interpretation to our Federal Constitution without any likelihood of bias. As Dicey wrote in 1885 when there was a social revolution in England which was accompanied by a constitutional revolution that “the sovereignty of parliament and the rule of law are cardinal features of our constitution.” Thus the Constitution is known as the “Supreme” law above all other codes of law.

Only on that premise is laid the foundation of the structure on which the rule of the law is established and upheld.. Zambry appealed and the Court of Appeal which overturned and set aside the declaration issued be the High Court. It ruled that Zambry was the Chief Minister. Hence, this appeal to the FC.

The primary issue for the interpretation of the Federal Constitution, is the independence of the Judges which are the tenets and the keystone of any civilized nation. From the independence of the Judges and from judgements delivered with divine prescience and perfect clarity arises the point of certainty and justice of the law.

In this matter which is before the FC, it first came before the High Court on May 11. 2009 where Justice Abdul Aziz Abdul Rahim granted a declaration to Nizar that Nizar was the legitimate Chief Minister of the State of Perak at all times

In Constitutional Law a declaration once granted should not be set aside. But here in Zambry’s case what we have is an unusual common nonsense at play. There has been a call by a illegitimate Government crying out for “more light” and the Court of Appeal gave the light to Zambry.

The issue before the FC is of Constitutional Importance. It revolves on the interpretation of the Perak State and the Federal Constitution. It also relates to the powers of the Chief Minister. Whatever decision that the FC delivers would have a multi-disciplinary effect on the people and the nation as a whole relating to the power of an elected government to govern as opposed to an appointed government by the Ruler of the State of Perak. After all the Ruler is only a symbol or figure head.

Herein arises the complication. Whilst the Federal Constitution is the supreme law of Malaysia, it is higher than any other statutory law passed by Parliament. The Federal Constitution is the “Bill of Rights” of the people through which the people give their elected representatives the mandate to govern and to formulate policies for the proper and efficient functioning of all the other institutions of the state.

Therefore the FC should not take an ornamental or a pedantic approach to the giving of an interpretation to the provisions of the Perak State and the Federal Constitution. The FC should not embark upon an expedition of its own choosing, in giving its interpretation of the Constitution.

The FC should give the force of life to the dead letters of the Constitution as it is understood by the voting populace and the words and phrases as stipulated in Article 43(4) and 71(5) (a) which inter alia states: “in the case of every State, until the dissolution of the second Legislative Assembly constituted in accordance with those provisions or those provisions so modified” as provided therein or of the Federal Constitution. In the case of the Perak State Assembly, it was never dissolved. Therefore the Ruler by established constitutional convention has no power to order a sitting Chief Minister to resign.

What we expect is that the FC would give the simplest, most sensible and the most obvious interpretation which is most likely to be in accord with what is meant by the voting populace in its general aspirations and its adoption of why they go to the ballot box to cast their votes. As such there should be no war between what is provided for in the Constitution and the application of commonsense.

The Federal Court is the Apex Court. The Constitution to all people is a supreme document upon which we found our faith upon independence. It contains the fundamental road map for the fulfilment of all the actors rights in our society. As such, the Judges in Nizar’s appeal should not endeavour to play a game of hairsplitting and destroy the rhythm of the Constitution. We expect the Judges to give the simplest and most obvious interpretation. May the Judges give a sound decision without fear or favour.

As Socrates said: “Law is reason free from passion” so to must the five judges of the FC be free of  passion, joy and sorrow in giving the words and phrases of the Constitution its obvious plain and ordinary meaning, as it is woven into the fabric of the constitution, as there are no creases to be ironed out.

If the judges fail to do so they would be destroying whatever little faith the people have in the judiciary which consist not in reliance of any special revelation or blind hope that they have for the judiciary but in respect of their devotion to the well laid out argumentative reasons set before the FC by Nizar’s Solicitors. The voting populace will not be swayed by anything less than a decision delivered with divine prescience and perfect clarity.

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One Response to “APEX COURT MUST DECIDE WITHOUT PASSION JOY OR SORROW”

  1. boscopa Says:

    Yes. I am the author of this post.

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