Monday 15 June 2009

The Highly Politicised Judges in the FEDERAL COURT: Malaysians' Worst Nightmare for Justice

Read here for more


"The (Federal Court's) ruling appears to give MORE power to the Election Commission (EC) than it should rightfully have.

The EC is NOT an elected body, unlike the State Legislative Assembly. Its role is merely to carry out elections.

That’s why when an elected member of the assembly quits, the resignation letter is addressed to the head of the House and NOT to the EC .

The landmark ruling makes a MOCKERY of the maxim of separation of powers provided for in the Malaysian Constitution.

The Federal Court has set a DANGEROUS precedent."
- Ragunath Kesavan,President
Malaysian Bar Council

UMNO's Saviour in the Federal Court
(Read here for more on Zaki Azmi, and here and here)

The Federal Court says the Election Commission (EC) has the right to decide whether or not a seat is vacant, and NOT the Legislative Assembly Speaker.

This is according to its written judgment in the recent Perak case where three state lawmakers sued Speaker V. Sivakumar.

Based on the ruling, Ragunath Kesavan said the EC could easily declare a seat vacant and call for a by-election once a lawmaker hands in his resignation letter, whether it is accepted or rejected by the speaker.

The Bar Council president, Ragunath Kesavan, an immediate comment on the written grounds, said:
“The Federal Court has set a dangerous precedent.

The ruling appears to give more power to the EC than it should rightfully have."

He explained that the EC is not an elected body, unlike the state legislative assembly, and that its role is merely to carry out elections.

That’s why when an elected member of the assembly quits, the resignation letter is addressed to the head of the House and not to the EC,” said Ragunath.

He added the landmark ruling makes a “mockery” of the maxim of separation of powers provided for in the Malaysian Constitution.

But Federal Court judge Tan Sri Nik Hashim Nik Ab Rahman said in his written judgment:
“With the clear provisions of the respective powers of the Election Commission and the Speaker, the fear of encroachment into the doctrine of separation of powers by one body into another does not arise.

On a plain reading of Article 36(5) of the Perak Constitution read together with section 12(3) of the Elections Act 1958, it is the Election Commission that establishes the casual vacancy and not the Speaker.

A casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy" (stressing on the word “established”).
Interestingly, the written judgment also notes that NOT all vacancies are to be decided by the EC.

The Federal Court decision was delivered orally on April 9 but the written grounds were only give n out to the media today (June 15).

Justice Nik Hashim noted that the Federal Constitution and the state constitutions of Perak, Perlis, Kedah, Penang, Pahang, Malacca, Kelantan and Sarawak clearly give the authority to the EC.

The Sabah constitution is “silent” on who or which body has the power to “establish” casual vacancies.

The state constitutions for Selangor, Negri Sembilan, Johor and Terengganu make it clear the EC plays no role in deciding the vacancy of a seat, Justice Nik Hashim observed.


Crises of Confidence and Perak’s Constitutional Impasse


Prof Dr.Andrew Harding
Chair in Asia-Pacific Legal Relations, University of Victoria, Canada
(Andrew Harding received his MA (Oxon) in 1974, his LLM (Singapore) in 1984, and his PhD (Monash) in 1987. He joined University of Victoria's Faculty of Law and the Centre for Asia-Pacific Initiatives in 2004. He is currently teaching two courses in the Faculty of Law: Asia-Pacific Comparative Law, and Law, Governance and Development.Professor Harding is a former Head of Department and Professor of Law in the Law Department at the School of Oriental and African Studies (SOAS), University of London, and Chair of SOAS' Centre of South East Asian Studies, having previously taught at the Faculty of Law, National University of Singapore and as a Visiting Professor at Harvard Law School. He co-founded and has served as General Editor of Kluwer/ Martinus Nijhoff's London-Leiden Series on Law, Governance and Development. His interests are in South East Asian legal studies, comparative public law, law and development, comparative law theory and environmental law. His recent publications include Law, Government and the Constitution in Malaysia (1996), and Comparative Law in the 21st Century (2002).

Excerpts: Read here for more in Center for Policy Initiatives

In 1966 it was Sarawak, in 1985 it was Sabah, and in 2009 it is Perak.

But the issue in these times of crisis in state governments has been essentially the SAME: how are the so-called ‘Westminster-type constitutional conventions’ relating to the appointment and tenure of chief ministers, and written into both federal and state constitutions in Malaysia, supposed to operate?

Crucially, in the present and intensely litigated impasse, are matters arising outside the legislature relevant in assessing :
  1. Whether a Menteri Besar (MB) still commands the confidence of a majority in the State Legislative Assembly, and

  2. Can the head of state ( ie sultan) appoint a new MB if he judges that the existing MB has lost that confidence and does not resign?
Malaysians will recall that similar issues were raised hypothetically at the federal level not long ago.

The High Court Ruling Nizar v Zambry

Abdul Aziz Abdul Rahim J in the High Court of Malaya sitting in Kuala Lumpur has ruled ( in Datuk Seri Mohamed Nizar Jamaluddin v Datuk Dr Zambry Abdul Kadir -11th May 2009) that under Perak’s Constitution a vote NO confidence MUST be passed IN the assembly BEFORE an MB is obliged to resign.

According to this decision Nizar remained MB of Perak.

The High Court’s decision was then OVERRULED by the Court of Appeal on 22nd June in a decision in favour of Zambry.

However, the grounds for the Court of Appeal’s decision have not yet been released and the case is on appeal by Nizar to the Federal Court.

The Perak State Constitution
His Royal Highness shall first of all appoint as Menteri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of a majority of members of the Assembly …’.

Article 16(6) goes on to state: ‘If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, then he shall tender the resignation of the Executive Council.’
The Factual Matrix

The complex FACTS giving rise to the case were these:
  1. Nizar was appointed MB of Perak following the March 2008 elections as the Pakatan Rakyat coalition’s choice for this office. In a 59-member assembly, Pakatan held 31 seats, while the BN held 28 seats.

  2. In February 2009 three Pakatan members of the assembly (dubbed ‘the 3 ADUN’ in the litigation) announced their resignations from the assembly, leaving the assembly apparently DEADLOCKED at 28-28.

  3. Nizar approached His Royal Highness the Sultan of Perak as the Head of State (‘HRH’) on 5th February 2009 for a dissolution of the assembly ‘to resolve the deadlock’ in the assembly.

  4. HRH REFUSED the request (for the dissolution).

  5. Previously to informing Nizar of his decision, HRH had met with 31 members of the assembly at the Istana and satisfied himself that these 31 members supported Zambry as the MB. The 31 included the 3 ADUN, who had apparently meanwhile indicated that their resignations from the assembly were withdrawn and they had transferred their support to Zambry.

  6. Accordingly HRH immediately informed Nizar that he no longer commanded the confidence of a majority of the members of the assembly.

  7. HRH asked for his resignation as MB. This was NOT forthcoming.

  8. Later the same day the Office of HRH issued a press statement stating that the office of MB had fallen vacant and that Zambry had been appointed MB as he commanded the confidence of a majority of members of the assembly.
The Significance of the VOTE in Assembly

It is common ground that:
  1. There had NOT been any motion of no confidence in Nizar as MB,

  2. There (had not) been any event in the assembly to indicate loss of confidence in him, for example defeat on an important bill;

  3. At no point had or has Nizar resigned or been dismissed from the office of MB; and

  4. Nor Nizar has been prevented from acting as MB, for example by being evicted from his office.
Nizar asked the High Court on judicial review for orders (to declare) him to be legally the MB of Perak.

Nizar’s claim was that:

  1. ONLY the assembly had the power to decide that it had no confidence in him, and

  2. There was no provision for the MB to be dismissed or for the office to fall vacant.
(But) Zambry argued that the office of MB fell vacant when Nizar refused to resign and circumstances arising outside the assembly were relevant to the issue of confidence.

The High Court Ruling

The learned Judge in the High Court decided that:
1. The issue raised was justiciable;

2. HRH exercises his discretion and may resort to any means to satisfy himself and form his judgment as to who is likely to command the confidence of the majority of the assembly under Article 16(2)(a), but THIS is NOT true of Article 16(6) where there is NO judgment to be exercised by him; and

3. similarly HRH exercises discretion in deciding whether to refuse a request for a dissolution of the assembly; but

4. the MB does NOT hold office at the pleasure of HRH NOR can he be dismissed by him;

5. the office of MB CANNOT be deemed to be vacated under Article 16(6);

6. the MB is responsible to the assembly collectively with the Executive Council; and

7. a MB cannot be appointed if there is already a MB who has not resigned and no vote of no confidence has been passed against him.
Accordingly (the High Court judge) held that Nizar still held the office of MB, and relief was granted in the terms of his application.

The Question of "Loss of Confidence"

On the question of whether account can be taken under ‘loss of confidence’ provisions (such as Perak’s Article 16(6)) of matters arising outside the legislature, the court was faced with apparently conflicting decisions in:
  • Ningkan’s case (Sarawak, 1964) and

  • Amir Kahar (Sabah, 1995) and

  • Adegbenro v Akintola (Western Nigeria, 1963).
The (High Court) judge made fairly short work of the case law on this point, regarding Article 16(6) as plain, obvious and unambiguous. He said,
  1. The Constitution must be given a ‘LIBERAL interpretation and NOT be construed in a narrow or pedantic sense’;

  2. Nonetheless ‘the court is not at liberty to stretch or pervert its language for the purpose of supplying omission or correcting supposed errors’.

  3. Amir Kahar, (case) was correct on its facts but did NOT raise the issue in question as the Chief Minister of Sabah in that case had in fact resigned. The only issue was as to the effect of his resignation with regard to the rest of the Cabinet; accordingly the court’s views in that case on the issue of confidence were merely obiter dicta (incidental).

  4. In Ningkan 's (case), the court had CORRECTLY distinguished the Privy Council’s decision in Adegbenro, because both the facts and the applicable constitutional provisions were different.

  5. (The judge said) the power in the Federal Constitution to remove the Prime Minister from office for lack of confidence had been originally indicated but did not finally appear in Article 43(3) of the Federal Constitution of 1957, whose provision in this respect is obliged by Schedule 8 to be replicated in all the state constitutions (in Perak this is Article 16(6)).
Issues of Significance and Public Interest

It is critically important that the matter is assessed not from a party political point of view, but as a matter of broader public interest.

From this point of view, the Judge’s decision clearly has much merit.

As he pointed out at the end his 78-page judgment
‘...the genius in our Constitution is that we have chosen a system of government anchored on the principles and practices of constitutional monarchy and parliamentary democracy whereby the Yang di-Pertuan Agong and the Rulers’ constitutional roles are set out in the Constitution and the people are given freedom to elect a government of their choice in a free election and with the elected government being made answerable to the elected legislature.’
Undoubtedly so.

Nonetheless it can be legitimately asked:
Whether the position is tenable that, if the MB does not resign when there is lack of confidence in him, the MB cannot be dismissed and his office does not fall vacant.
Surely, it can be argued: There must, finally, be a means of making the MB go in this situation, otherwise the Constitution would become inoperable.

(But) is it not consistent with parliamentary democracy, and also with constitutional monarchy, that ultimately the head of state has the power to dismiss him ?

Of course , however such a right (of the Head of State) may ONLY be exercised when the situation have become TOTALLY UNTENABLE e.g. after a vote of no confidence which the Chief Minister nevertheless is obdurate in not resigning.

Interestingly enough, Zambry’s case (was NOT) that HRH did have a power to dismiss; rather (Zambry) argued merely that the office fell vacant when Nizar refused to resign.

There are TWO other alternative views about Article 16(6):
  1. One, as the Judge appears to hold, is that neither of these positions applies and it is simply up to the MB, after a no confidence vote against him, to resign.

    In the final analysis this presumably means that the remedy is purely POLITICAL rather than legal.

  2. It could be argued that a suitable applicant (a member of the assembly or of the electorate?) could obtain a writ of mandamus from the court to compel the MB to resign. But (this) did NOT actually arise on the facts because there was simply NO OBLIGATION on Nizar to resign in the ABSENCE of a no-confidence vote in the assembly.

Revisting the Facts.

It is not made clear in the judgment but is clearly relevant, that at his audience with HRH on 4th February 2009, Nizar believed that the 3 ADUN had merely resigned their seats.In fact the three seats had been declared vacant by the Speaker who had notified the Election Commission accordingly.
  1. It does NOT appear that HRH informed Nizar (that) the 3 ADUN had withdrawn their resignations and transferred their support to Zambry.

  2. According to Nizar’s understanding at the time HRH asked for his resignation, it was likely (but by no means certain) that he would have difficulty in maintaining a majority in the assembly; and equally likely too that Zambry would have the SAME difficulty.

  3. It seems clear that Nizar WAS JUSTIFIED in asking for a dissolution, because only by a motion of confidence or by an election could the situation be resolved.

  4. The Speaker had asked for a summoning of the assembly, but there had been no response from HRH ; and his request for a dissolution was denied. It is usual in Westminster-type constitutions to judge a chief minister’s OWN assessment of his political viability by his willingness to TEST IT on the floor of the legislature. There is indeed no reason to suppose that he should not have the right to do so.

  5. There was in this case NO obstacle, such as a threat of violence, to prevent the assembly meeting.

  6. Clearly in a confused political environment , the only definitive opinion is that of the ASSEMBLY. Members have the right to express their views, consider whether they are persuaded by anything they hear in the debate which would follow a motion of no confidence, and finally to cast their vote on the motion.
Anything else is surely a DENIAL of democratic process. When politicians are apt to change their minds at will, how do we know which way they will vote in advance, whatever they state their position to be?

WHO then makes decision as to whether MB had confidence Assembly? (Or) WHO was empowered to make the judgment as to whether the MB still had the confidence of a majority?

The Judge gave a CORRECT answer to this question by saying it is the legislature, NOT the head of state.

That the conditions in Article 16(6) are stated as facts rather than judgments powerfully indicates an interpretation that no judgment is involved, and that the MB ceasing to command the confidence of a majority is simply a matter for the assembly’s decision.

Following the assembly’s decision the matter should of course be beyond doubt, but if lack of confidence was expressed in some other manner, for example by the failure of a money bill or other important measure, it would then be for the MB to consider his position on the basis of events in the assembly.

In short HE must know he has lost the confidence of the majority before he is obliged to resign. Thus even on the view that the issue of confidence arises without the assembly expressing its view, there must be some latitude to the MB to assess his position.. And surely this is all the more true if he is not even in possession of all the facts?

Must he not have an opportunity to check the facts and consult with his colleagues to ascertain whether he has or has not lost the confidence of the majority?

But as the Judge also said, it is in any event clear that the HEAD OF STATE is NOT given the power under Article 16(6), as he is under Article 16(2)(a), to make a judgment as to matters of confidence.

Public Policy and Conventions

We can conclude that public policy requires that the courts view these ‘constitutional conventions’ in such a way as to implement the democratic principle by letting the people’s representatives decide transparently and after a debate.

Any other view not only renders the legislature otiose, but also opens the door to further constitutional crises arising out of behind-doors deals and manipulation which could even engulf the federal government at some juncture as well as making a political football of Malaysia’s ancient monarchies.

Hopefully the Federal Court will consider these issues seriously.

-Professor Andrew Harding

1 comment:

Anonymous said...

All said and done, even with the most coherent argument, reasoning, logical and legal analysis, the final verdit is still vested in the hands of these Judges who, for reasons best known to them, may have already prejudged the issues beforehand based on their political inclination. So what else more is there to say? The impartiality and neutrality of the Malaysian Judiciary no longer exist in the perception of the rakyat. And for good publicised reasons. Politics have polluted the Judiciary and established a stranglehold on the men in robes. This state of affairs does not arise onernight. On the contrary, since the days of Tun Mahathir, the Judiciary had been directing itself on a downhill slope which it has never recovered. It was in 1988. Nothing has changed. Do not expect it to change. Unless this present Government is replaced.