UPDATED: UMNO-Controlled Court of Appeal's Incompetent and Spineless Judges

Read here and here and here

Quote

"We have extraordinary judges with extraordinary ability."
- Sulaiman Abdullah, Lawyer

“The RIGHT to CHOOSE the Mentri Besar and Prime Minister is the ULTIMATE RIGHT of the SULTAN.” (ie NOT the People)
- Hafarizam Harun , Lawyer for Barisan Nasional

A three-member Bench in the Court of Appeal today returned a unanimous decision that Barisan Nasional’s Datuk Zambry Abd Kadir is the rightful Perak mentri besar.

The Court of Appeal ruled :

• Pakatan Rakyat Datuk Seri Mohammad Nizar Jamaluddin had ceased to command the majority in the Perak state assembly.
  
  
• The Sultan was right in appointing Zambry the MB
  
  
• There was no need for a vote of no confidence in the House against Nizar.

The three judges who made the decision are:

1. Md Raus Shariff,
   
   
2. Ahmad Maarop
   
   
3. Zainun Ali

When Nizar's counsel Sulaiman asks for written judgment for such an urgent and nationally important issue, Justice Raus says he could ONLY give in A WEEK'S time.

The Court of Appeal's decision was POLITICAL and widely anticipated given the political pressure piled by Prime Minister Najib Razak on the courts.

When the verdict was announced, there was complete silence in the courtroom as those present struggled to contain their anger at the bold-faced injustice unfolding before their eye.

Some 200 Pakatan Rakyat supporters have gathered outside the Palace of Justice in Putrajaya to vent their frustration. The crowd is chanting 'Hidup Nizar' and 'Reformasi' among other slogans under the watchful eyes of several policemen.

In an immediate reaction, DAP stalwart Lim Kit Siang warned that the court's decision would only serve to fuel the anger of the people towards Prime Minister Najib Abdul Razak.

"The best solution (to end the crisis in Perak) is to hold a fresh elections," he told reporters.

However, the Court of Appeal decision is not expected to bring an end to the crisis in Perak as the parties can still appeal to the Federal Court.

Nizar's counsel Sulaiman Abdullah said he would be filing an appeal. When asked if he was shocked with the judgment, Sulaiman said: "We have extraordinary judges with extraordinary ability."

On May 11, High Court judge Abdul Aziz Abdul Rahim had declared Nizar was the lawful chief minister at all material times and that Zambry, who was sworn in by the Perak Sultan on Feb 6, was never the legal menteri besar.

However, on May 12, Court of Appeal judge Ramly Mohd Ali shocked the nation by granting in super-quick time a stay of the High Court’s ruling, sparking widespread public discontent about the quality of justice in Malaysia’s legal system.

The Perak Sultan, Azlan Shah SUPPORTED Najib to get Zambry appointed as MB and had Nizar sacked, despite the removal was unsanctioned by the legislative assembly via a follow-through no-confidence vote.

But despite the uproar by Perakians and Malaysians across the country, the Perak Sultan, who was once the President of the Federal Court, has turned a deaf ear on the clamouring, disallowing his subjects from choosing the leaders that they want to lead their state and not the line-up foisted on them by Najib.

Three months have passed and by now it is obvious that not just Perakians, but Malaysians nationwide, want fresh election to resolve the crisis. However, a power-crazed Najib has chosen to hang on in Perak and has resorted to all ways and means - including the underhanded and the foul.

On May 7, Umno-BN assemblymen led by Zambry used brute physical force to eject V Sivakumar, the Speaker of the state assembly, from the legislative hall which was captured for posterity on You-tube video footage sparked a nationwide outcry.

NO LAW to REMOVE MENTRI BESAR AND PRIME MINISTER. ( Read here for more)

The Court of Appeal was told there were NO LAWS to remove any heads of government in Malaysia.

Nizar's counsel, Sulaiman Abdullah, said that even if a mentri besar chooses not to resign after losing the support of fellow lawmakers there was nothing that could be done. Arguments by lawyers representing Barisan Nasional (BN) MB Datuk Zambry Abd Kadir and the Attorney General would lead to more absurdity.

He said it would mean the King could tell the prime minister that he should step own because he had lost the confidence of members of parliament.

The grounds against removal, he said, were laid out in the Sarawak case of Stephen Kalong Ningkan v the Government of Malaysia 1968.

"The state constitution confers NO power on the Governor to dismiss or by any means to enforce the resignation of a chief minister, even when it has been demonstrated that he has lost the confidence of the majority."

In that case, Stephen Kalong was reappointed as Chief Minister in Sarawak.

However the federal Government imposed emergency rule and amended the state constitution to remove him. However the amendments during the emergency rule were allowed to lapse after his removal.

Similarly the Perak Constitution does NOT confer power to dismiss the mentri besar. There is also NO discretion to appoint two people as mentri besar.

The issue of whether a mentri besar had the support of HIS FELLOW LAWMAKERS is for the "elected pool" in the legislature to decide.

A mentri besar does not hold office at the pleasure of the ruler although he has absolute discretion to decide who should be mentri besar after an election. He added a mentri besar could at any time seek the dissolution of a legislature and did not have to wait for the end of a five year term.

The courtwas also told that Nizar's state of mind when he met the Perak Sultan to ask for the assembly to be dissolved was of great importance. During the meeting on Feb 4 Nizar told the ruler the assembly was "deadlocked" with both BN and PR having 28 assemblymen, following the resignation of three independents.

Nizar NEVER told the Sultan that he had lost the majority as claimed by the State Legal Advisor and the dissolution was sought under Article 36(2) of the Perak constitution.

This counters arguments by Zambry's lawyers who say Nizar had sought the dissolution under Article 16(6) which provides that the mentri besar should resign if he has lost the majority in the legislature and if the ruler does not allow for fresh elections.

Related Article:

Read here for more

It is a rare day anywhere when a LOSING party walks out of court with a pearly smile and magnanimity.

In Malaysia, it is almost never heard of, no thanks to the cloud of suspicion which has hung over the judiciary since the sacking of the judges in 1988.

Judge-fixing, elevation of less competent judges, suspect judgments and the tawdry V. K. Lingam video clip affair have all combined to strip this important institution of the one ingredient it needs so badly to function – credibility.

So even BEFORE Justices Ab Rauf Shariff, Zainun Ali and Ahmad Maarop delivered their judgment today, the cynics already wrote off Nizar’s chances of getting a good hearing.

The cynics argued that High Court Abdul Aziz Abdul Rahim’s decision in favour of Nizar was a one-off, an aberration.

How did we get to this point where public trust in institutions has reached abysmal levels? How did we get to the point where even the man on the street thinks nothing of mocking the “Hakim”?

The Court of Appeal today decided that:

1. when Nizar was granted an audience by the Sultan of Perak, he had lost the confidence of the majority of the assembly, and the Malay Ruler was spot on in asking him to step down.
   
   
2. There was no express provision for a vote of confidence to be taken in the state assembly. The Justices appeared to rely on a statement made by Justice Abdul Kadir Sulaiman in the Amir Kahar case (1995).

   “The evidence that a chief minister ceases to command the confidence of the majority members of the Assembly … is not only available from the votes taken in the Assembly. There is nothing in the Constitution which can be construed as requiring that the test of confidence must be by a vote taken in the Assembly itself. That fact can be evidenced by other extraneous sources….”

   This paragraph was relied on by the Justices to support their decision that there was no necessity to go to the assembly to test whether Nizar commanded the confidence of the majority of the assembly. In this instance, the Sultan acting on evidence by other extraneous sources, was right to reach the conclusion that Nizar had lost the confidence of the assembly.
   
   The big problem with relying on this statement by Abdul Kadir Sulaiman is that it was a comment made in passing. It formed the obiter dicta in the case, or a remark by the judge which does not form part of the court’s decision. The obiter dicta are not the subject of the judicial decision.
   
   Perhaps that is the reason why Sulaiman Abdullah noted that Malaysia has “extraordinary judges with extraordinary ability.”

Pakatan Rakyat defector Jamaluddin Mohd Radzi said that his decision to back Barisan Nasional (BN) was justified. He and his fellow defector Osman Jailu know a thing or two about the inside of a courtroom, having been charged with corruption last year. Jamaluddin has always tried to paint himself as the wronged party, the lawmaker who had little choice but to defect because he was on the verge of being kicked out.

But his disappearance for several days prior to the defection, his sheepish demeanour after resurfacing in Putrajaya and absence of remorse for deceiving his constituents exposed him for what he is – a politician driven by self-interest and little else.

His comment after the Court of Appeal decision (saying that he was vindicated by the ruling) only confirms that self-preservation was his only motivation for defecting.

BN’s lawyer Datuk Hafarizam Harun was jubilant after the Court of Appeal decision, declaring: “the right to choose the mentri besar and prime minister is the ultimate right of the sultan.”

That is a powerful statement with serious consequences for a parliamentary democracy.

So does the Yang Di-Pertuan Agong have the power to choose who should lead Malaysia?

Can the Agong after learning that several BN lawmakers have crossed over to the Pakatan Rakyat ask Prime Minister Datuk Seri Najib Razak to stand down?

Surely not.

Is Malaysia a constitutional monarchy or an absolute monarchy? The Court of Appeal’s decision today tilts Malaysia towards the latter, towards a return to more feudalistic days.

The decision vests the Malay Rulers more power than what is outlined in the Federal Constitution.

Several weeks ago, Tun Dr Mahathir Mohamad said: “I don’t think anyone wants a return to feudalism. Going back to feudalism will be a big mistake. The system we have has worked very well for us until the present case in Perak.”

HUNGER STRIKE IN IPOH

Pakatan Rakyat will organise a three-day hunger strike starting on Tuesday that will be led by the ousted Nizar and dumped state speaker V. Sivakumar.

It will take place in front of the DAP headquarters here, which sits not 50 metres from the gates of the state secretariat, the seat of power that has swung between Nizar and Zambry.

At the press conference, Ipoh Barat MP M. Kulasegaran slammed the judiciary for being incapable of dealing with constitutional matters.

Read here for more

Anwar Ibrahim is not surprised with the appellate court ruling that Barisan Nasional's Zambry Abd Kadir was the legitimate Perak menteri besar. Anwar said Nizar did not deserve to be booted out because he was a “capable, clean and caring” leader.

According to the opposition leader, Nizar had safeguarded the interests of the poor and needy in his one-year stint as Perak menteri besar.

“He did not misappropriate or spend lavish public funds on mega-projects. He did not steal logging revenue and solicit shares for himself. Maybe those were his wrongdoings,” quipped Anwar in his typical reverse psychology one-liner to the 3,000-strong crowd in the remote village.

The Permatang Pauh parliamentarian went on to lambast BN for not heeding popular demand to dissolve the Perak assembly and pave the way for a fresh state election. BN and its media, he claimed, were now trying hard to convince the public that Pakatan was the cause of the Perak political deadlock when the truth was otherwise.


COMMENTARY

Read here for more in Malaysiakini

• "... The perversity of the Court of Appeal decision is not lost on the people.If we follow their logic that there is no need to pass a vote to determine who has the confidence of the majority, why not apply it to by-elections to save time and money?
  
  Each candidate's chances of winning can be statistically calculated with some sample interviews and the seat awarded to the candidate whom the EC believes commands the support of the majority.
  
  The real court which matters is not Umno's court but the court of public opinion. Instead of legitimising BN's power grab, the usurper's reputation has fallen even further in the public eye.
  
  A government which dares not face the people but uses a compliant judiciary to enforce its power grab has no right to call itself legitimate...."
  
  
• "... The Court of Appeal decision in favour of Zambry over Nizar will not be well-accepted by the Malaysian public and will always be frowned upon. Especially when the Salleh Abas saga and the Lingam Tape controversy remain unresolved and persons corrupting the judiciary not brought to book.
  
  The judiciary will always be looked upon as servants to the BN administration if no serious effort is made to restore its independence. Because the judiciary is still tainted, yesterday’s Court of Appeal decision will not be seen as victory for Zambry but a defeat of the Malaysian people..."
  
  
• "... With the integrity of the judiciary sunk low in the court of public opinion, Malaysians will deride this politically motivated verdict which tears at the heart of constitutional monarchy.
  
  Who decides whether Nizar has ceased to command the majority of confidence of the state assembly? Surely this must be the state assembly itself and not the sultan undertaking his own investigations.
  
  Somehow, the Court of Appeals has squirmed and slithered to reach a ludicrous conclusion. An appeal to the Federal Court is unlikely to bring joy to Nizar.
  
  Judges are promoted not on merit but on their degree of compliance to BN which uses the judiciary as a tool of oppression and to make up for the loss of their two-thirds parliamentary majority.
  
  Not even under Mahathir has the Malaysian judiciary sunk to such depravity and moral turpitude. ..."
  
  
• ".. Bringing the issue to the High Court/Court of Appeal/Federal Court/kangaroo courts is all wrong.
  
  The real court is the people's court. Let the people of Perak be the judge and decide for themselves who they want to rule the state..."
  
  
• ".. BN may have won Perak with the Court of Appeal judgment, but they definitely have lost Malaysia in the People's Court. .."