CAUTIOUSLY OPTIMISTIC AGAINST IMPOSSIBLE DEEDS


Since February 5, 2009 the legitimacy of the holder of the office of Chief Minister of the State of Perak has been in limbo. The matter finally was heard by the Federal Court on November 5, 2009. The fundamental gist of Nizar’s Solicitors argument was:

“Show us any provisions in the Perak Constitution empowering the Sultan of Perak to sack Nizar.”

To digress a little, it is a known fact that in the discipline of physics properties and interaction of matter and energy are known to be in a state of flux, which means in a continuous succession of change. The discipline of sociology or the term “social engineering” would relate to the study of human society and human social behaviour. It could be referred to and called “the study of the logic of the situation.”

But than in the discipline of law which is referred to as jurisprudence which is the study of the science or philosophy of law there is an old Justinian code that states:

“Justice is the constant and perpetual purpose of rendering each man his due.”

Against this backdrop let us see whether the Judges of the Federal Court will keep the streams of justice pure and clean.

Zambry Kadir’s Solicitors case:

Zambry’s solicitors and the Attorney General called upon the court to affirm the decision of  the Court of Appeal. They submitted that Zambry is the lawful Chief Minister(CM). He was appointed by the Sultan under Article 16(2) of the Perak Constitution.

Nizar’s Solicitors response:

Not so soon said Nizar’s solicitors. Zambry may claim he is the lawful CM. He has to discharge the burden of proof, as under the Evidence Act 1950 under Section 101 he who asserts must proof. Zambry must prove that the office of Nizar as CM was indeed vacant or Nizar was validly and constitutionally sacked by the Sultan.

Reference was made to the case of Stephen Kalong Ningkan vs Tun Abang Haji Openg & Tawi Sli (1966) 2 MLJ 187 where Harley CJ (Borneo) said:

“ There are two situations where the Governor ( or the Sultan as the case may be) may exercise his absolute discretion namely (a) on the issue of the appointment of MB or (b) withholding consent to dissolve the State Assembly.”

Further Harley CJ had rightly cautioned and inter alia stated:

“ As regards to (a), nobody could be so foolish to suggest that a Governor could appoint a second Chief Minister while there is still one in office….”

Nizar’s solicitors submitter that it was plain and obvious that until November 5, 2009 Zambry was not able to proof that the office of the MB held by Nizar was vacant. Neither was Zambry able to proof that Nizar was legally or constitutionally removed by the Sultan.

Zambry’s  Solicitors response:

Zambry’s solicitors and the AG submitted that Nizar had by a letter dated February 5, 2009 requested the Sultan to dissolve the State assembly. As such under Article 16(6) of the Perak Constitution, since the Sultan had withheld his consent to dissolve the Assembly, Nizar and the Exco Members have no other options but to resign en bloc.

They further contended that Nizar in his letter to the Sultan had stated that there was a deadlock in the number of assemblymen of the Barisan National(BN) and the Pakatan Rakyat(PR) which was equal, namely 28 each. The seats of the three defected assemblymen have been duly declared as vacant by the Speaker.

They further argued that by conceding that the numbers on each side was equal, that if a vote of no-confidence was to be carried out, Nizar would definitely be defeated. This argument was premised on the fact that the Speaker (Sivakumar) could not cast his vote under the Perak Constitution. Hence, they argued, that Nizar would lose by one vote.

Nizar’s Solicitors responded:

Nizar’s solicitors responded that before Article 16(6) of the Perak Constitution could be invoked and applied, there must be cogent proof that Nizar had indeed lost the vote of no-confidence of his peers in the State Assembly.

Further, Nizar’s solicitors submitted that that it is not disputed in the case which is before the Federal Court that hitherto, Nizar has not lost any vote of no-confidence. This is simply based on the fact, that no such vote was ever carried out at any time. Thus the condition precedent of Article 16(6) was not met by Zambry.

Nizar’s solicitors further submitted that historically speaking, as far as the issue of the MB’s removal from office is concerned, the constitutional convention endorsed the practice of casting the vote of no-confidence which has to be held in the State Assembly. Apart from the case of Stephen Kalong Ningkan, the downfall of the PAS government in Trengganu in 1961 was another case in point.

In 1959, PAS captured the state of Terengganu. It formed a colition government with Parti Negara. One Daud Samad was duly appointed as the Mentri Besar. However the lifespan of the government was short. On October 26, 1961 the Information Chief of UMNO declared that three assemblymen from PAS and Parti Negara had defected to the Perikatan’s team. On October 30, 1961 a vote of no-confidence was duly passed by the Terengganu State Assembly evidencing the demise of Daud Samad as the MB of Terengganu.

The attempt by Daud Samad to request for the dissolution of the State Assembly was rejected. The Sultan instead appointed Ibrahim Fikri of Perikatan as the new MB.

The aforementioned historical precedent demonstrates that the Sultan only made a decision refusing to dissolve the State assembly after a vote of no-confidence was duly passed by the State Assembly. If this precedent was duly observed, would we have to see what we have seen in Perak?

On Zambry’s argument that Nizar would lose the vote of no-confidence on the basis that the Speaker (Sivakumar) could not cast his vote, the solicitors replied:

Yes, constitutionally speaking Sivakumar, being the Speaker, could not vote. However nothing bars him from stepping down as the speaker when voting really takes place?

What shall bar him from becoming an ordinary member of (the) State Assembly and in turn exercising his right to vote if UMNO is confident enough of bringing a motion of no-confidence against Nizar?

Nizar’s solicitors submitted, if UMNO is too foolish, it may appoint another state assemblyman from its side to replace Sivakumar and if this really happens, a vote of no-confidence against Nizar will remain wishful thinking.

So, when Nizar refused to resign, the solicitors submitted, was the Sultan given the power to sack him?

Zambry’s solicitors said “YES” the Sultan has the power.

Nizar’s solicitors replied: show us any provision in the Perak Constitution giving the Sultan such an express power.

Zambry’s solicitors submitted that the Sultan was “deemed” to have such a power.

Nizar’s solicitors retorted: show us the said “deeming” provision enshrined in the Perak Constitution. Of course, no such deeming provision exist.

Nizar’s solicitors then went on to submit that there must be a deeming provision in the Perak Constitution stating in no uncertain terms that when the MB refuses to resign, his office is deemed to be vacant by the operation of law.

At this stage, Nizar’s solicitors quoted a very clear example of such a deeming provision in the Perak Constitution. Article 19(1) in Part 2 of the Perak Constitution is such a classic example. The said Article expressly provides that the Sultan is “deemed” to have vacated his Throne if he fails to attend the Senate meeting for a very long period without sufficient or reasonable grounds. You will notice that no such deeming provision exists as far as the removal of the MB is concerned.

In the closing remarks, Nizar’s solicitors submitted that under Article 16(7) of the Perak constitution it expressly provides that, unlike the State Executive Council Members who hold their positions at the pleasure of the Sultan, the MB’s office is not at the pleasure of the Sultan.

Therefore, any suggestions by Zambry’s solicitors that Nizar could be removed by the Sultan was, at best, fanciful and at the worst, smacks of power hunger on Zambry’s part.

It is clear from the arguments of both sides of the divide in this constitutional dispute that Zambry who claims to hold the office the MB legitimately, has to discharge the burden of proof. He has failed miserably to do so.

The Court of Appeal has erred in law when it dismissed Nizar’s appeal. The question that is in the minds of all right thinking people is, will the Federal Court decide based on the truth of the powerful statements made by both sides of the divide as to whether the Sultan of Perak based on the Perak Constitution is empowered to sack a sitting MB.

This case is a perfect example of the often quoted and broken maxim, Fiat justitia, ruat coelum which means “ let justice be done though the heavens should fall.” However there is another Malay analogy which says that here is a case of the kris turning on its owner.

It is clearly apparent based on the arguments raised by Zambry’s solicitors that they are clinging to the words of Article 16(6) of the Perak Constitution. There is an old maxim which reminds us that “Qui haeret in litera, haeret in cortice, which on being interpreted, means: He who clings to the letter, clings to the dry and barren shell and misses the truth and substance of the matter.

Therefore the five Justices of the Federal Court should not under any circumstance be the servant of the words used in the constitution. At the same time the judges should not be mere mechanics in the power-house of semantics. The words in the constitution are not a semantic paradox. Therefore the judges should be the ones who should be in charge of those words used in the constitutional document They should give the said provisions its plain and ordinary meaning and deliver a judgment of divine prescience and perfect clarity.

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One Response to “CAUTIOUSLY OPTIMISTIC AGAINST IMPOSSIBLE DEEDS”

  1. boscopa Says:

    Yes. I am the author of this post.

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