Tuesday 12 May 2009

PERAK CRISIS: The Bastardisation of the Malaysian Judiciary by the Federal Court and the Court of Appeal

Read here in Malaysiakini

Read here related article:
The Court of Appeal has granted a stay of execution on yesterday's High Court decision which recognised Mohammad Nizar Jamaluddin as the rightful Perak menteri besar.

Court of Appeal judge
Ramly Mohd Ali today heard the stay application on his own, departing from the usual practice of a three-member panel. Such a departure is acceptable and has been done previously for various grounds.

Today's decision puts an end to Pakatan Rakyat's Nizar's bid to return as the lawful MB. He has been in office for LESS than 24 hours since the High Court decision. UMNO/BN's Zambry said he wants to resume his duties as menteri besar.

The Court of Appeal's decision has ONCE AGAIN left Perak in limbo with both Barisan Nasional and Pakatan Rakyat fighting to claim power.

This will put on hold the decision of the High Court pending an appeal by Perak BN Menteri Besar Zambry Abd Kadir.

This means that rival MB, Mohammad Nizar Jamaluddin, CANNOT seek the sultan's consent to dissolve the state assembly until the appeal has been heard.

In an immediate response, Nizar said he would seek legal advice on what to do next.

"We'll see the consequences of it (the stay order)," he added.

"Whatever court action taken (by both sides), we have to sincerely and quickly stop the political impasse," he said.

Nizar also did not express alarm over the increased presence of police personnel outside the state secretariat building following the Court of Appeal's ruling.


Dissolve the Perak State Assembly, Says Tengku Razaleigh

Read here for more

On Feb 7, I wrote that a shameful scenewas unfolding in Perak and maintained that despite the “takeover” of the state government by Barisan,
"...according to the Constitution, Datuk Seri Nizar Jamaluddin is Menteri Besar until he resigns of his own accord, or is removed by a vote of no-confidence in a formal sitting of the assembly. The Constitution makes no provision for his removal by any other means, including by petitions or instructions from any other authority."
Today, after three months and yet more shameful scenes, the High Court affirmed the same elementary principle, and held that Datuk Seri Nizar has been and remains the Menteri Besar.

As Justice Abdul Aziz Abd Rahim put it: “He is, and was, at all material times the chief minister of Perak.”

The High Court also ordered Datuk Seri Zambry Abdul Kadir and his executive officers to vacate their offices, and rejected an application from Zambry for a stay of proceedings pending an appeal.

The High Court has thereby affirmed the primacy of the Constitution.

This judgement brings to a head some of the consequences of our constitutional misadventure in Perak.

The government led by Datuk Seri Zambry was all along illegitimate and all decisions and contracts made by that government are without legal status. The cascade of illegalities we warned of must now be unwound painfully. This includes the deplorable events of May 7 in Ipoh.

It means the resolution to replace the Speaker was brought by an illegal state government.

The Sultan, and the monarchy itself, is embarrassed by this episode, as well as by a systematic programme by some to inflame this issue into one of race and treason. Such attempts only hurt the institutions they claim to protect, and they hurt Umno and BN. The real issue was always the Constitution and the Rule of Law, and the monarchy is protected in its role of upholding the primacy of the Constitution and the will of the people.

We now hope that the Sultan agrees to dissolve the Assembly. This is the decent thing to do, but also the only way out of a crisis which has already spiralled out of Perak, damaged the rule of law, compromised the judiciary, the police and the state civil service, and damaged the monarchy in public opinion.

Umno is not well served by leaders that place short term political objectives above the Constitution.

Our ideals are cheated when the monarchy we claim to protect is brought down to the level of desperate political manoeuvres that discredit us at home and abroad.

We have no future as a party if we are seen as being against the people rather than for them.

Those unable to rise above narrow party interests to understand what happens to a country when a government loses respect for the law might still like to consider this: it is better for BN to risk state elections that we may lose rather than to lose the entire country by being seen to be opposed to decency, the rule of law, and the will of the people.
-Tengku Razaleigh

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