Saturday, July 11, 2009

Part 2 - Gobbledegook and regurgitation in the written judgments of the Court of Appeal in Zambry v Nizar: Postscript - Zainun Ali JCA’s judgment


by N.H.CHAN
Postscript
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On Tuesday, July 7, 2009 I posted an article under the above title on the web with various news portals and here. At that time I only had the written judgments of two of the judges Raus Sharif and Ahmad Maarop JJCA. I have just received the third judgment of Zainun Ali JCA. Below is my critique of the written judgment of Zainun Ali JCA.

The points that really matter

As I have said it before in the first part of this article, there are only two points that really matter in the appeal of the case in question. They involve the reading of two clauses in Article 16 of the Perak Constitution and an understanding of what the clauses mean. A very experienced judge, the late Lord Justice Salmon in a talk which he gave to young members of the English Bar, Some Thoughts on the Traditions of the English Bar, said:

… remember this, in few cases, however complex, is there usually more than one point that matters. Very seldom are there more than two and never, well hardly ever, more than three. Discover the points that really matter. Stick to them and discard the rest.

Actually, Salmon LJ was revealing to budding advocates the mind of a judge. The young advocates are informed, before they embark on their career, that a judge makes his decision by discovering the point that really matters or, exceptionally, the points that really matter. This revelation should place aspiring advocates on the right direction to becoming good advocates.

If a judge misses the point or points altogether, the whole decision becomes nothing but gobbledegook if it is unintelligible or a regurgitation of a lot of information on the facts and the law without understanding them. A decision which does not decide on any point that really matters is not a judgment at all. A decision which misses the point altogether is merely the extraneous ranting of an incompetent judge. At best, the legal principles described in the decision may be described as nothing more than obiter dictum or dicta; but if it is just to repeat known law (which is unconnected to any point in issue) as was done here in most of the judgment of Zainun Ali JCA, it is not even dicta. In truth, such a decision is useless because it cannot be cited as an authority as it is only regurgitating what is already known. But a decision that misses the point or points altogether is no authority on the issue or issues before the court. Because the decision did not decide on the issues or points that matter, such a decision is at best merely obiter dicta (the Latin phrase means “incidental”).

Professor Andrew Harding in his essay, Crises of Confidence and Perak’s Constitutional Impasse, gave an illustration of such a situation in Amir Kahar (Sabah, 1995) which the High Court judge in the present case had distinguished. This is what Professor Harding wrote:

Amir Kahar, [the High Court judge] said, 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 and 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).

If a judgment decides on the points that really matter, the judgment which decides on those points is described as the ratio decidendi of the decision (this Latin phrase means “the reason for a decision”).

The incidental part of a judgment which does not form the reason for the decision (the ratio of the judgment) is an obiter dictum (plural obiter dicta). This Latin phrase means “incidental”. An obiter dictum is never cited as an authority for the proposition it states, although an intellectually dishonest judge would treat it as such, in the hope that the reader would take his word for it and not read the whole judgment that he has referred to in support of his proposition. Sometimes an obiter dictum has much persuasive value depending on the standing of the judge. Such obiter dictum may sometimes be adopted by a judge as his judgment in an appropriate case. Only the ratio decidendi of a judgment can be used as authority for the proposition that it states. But the remarks which are incidental to the decision are obiter.

Let us now expose the fallacy of the judgment of Zainun Ali JCA

The judgment is 115 pages long - it is like using a blunderbuss to shoot at a target, scattering shots in all directions, and not hitting it. It is the longest of the three. Most of it has nothing to do with the two points that really matter in this appeal which we know are Clause (2)(a) and Clause (6) of Article 16 of the Laws of the Constitution of Perak. And when she does come to the two points that are the real issues in the appeal she misses the points altogether by giving a wrong reason for them.

Here at p. 12 is an example of irrelevant writing. This is what she wrote, p. 12:

Inclined as is the Federal Constitution towards the Westminster structure, it has its own peculiarities. The Westminster model is not to be found in one document, but could be seen in bits and pieces in the Magna Carta, the Bill of Rights, the Act of Settlement and a series of Parliament Acts. Conversely, the Federal Constitution however is embodied in one document and gathers unto itself various sources of law some of which are implicit. The unique presence of the written law, shot through with informal and unwritten sources in the form of conventions, prerogatives, discretionary and residual powers as such, help ensure the continuation of constitutionalism and the rule of law. Thus the sources of law in our Constitution are several. Article 160(1) of the Federal Constitution says it all. “Law includes written law, the common law, insofar as it is in operation in the Federation or any part thereof and any custom or usage having the force of law in the Federation or any part thereof”.


I think I should stop here. Enough is enough. I don’t think we, neither the reading public nor myself, can stomach any more balderdash. You can pretend to be erudite by regurgitating unconnected material of facts and jumble them up. You can even misread the history of England like not knowing the different period in history between the feudalism of the barons and a despotic king in Magna Carta and the Act of Settlement which came about after King James II fled the realm and the ascension of William and Mary to the throne of England. Unless you can connect the leap from thirteenth century England to the Act of Settlement in 1701 some four hundred years later, then everything that is said is nothing more than pretended erudition.

What is the Magna Carta?

I shall start with Magna Carta since she mentions it first. In order to understand the significance of Magna Carta in English history, it is necessary to know the difference between feudalism and despotism. The Charter marked the first step in the resistance by the barons to the despotism of King John in the thirteenth century. As Trevelyan wrote in his History of England, illustrated edition, p. 199:

For feudalism is the opposite of despotism… The barons and knights were protected from the king by feudal law and custom. When [the King] claimed service, aids or reliefs on a scale larger than the custom allowed, they resisted him on point of feudal law.

Trevelyan tells us:

The resistance to royal despotism in the thirteenth century was successful because the feudal class, unlike the squires of later times, was still to some extent a warrior class… they all had chain-armour and war-horses, some had gone on the Crusades, and many lived in a state of chronic skirmishing with their Welsh and Scottish neighbours. That is why the barons of Magna Carta… were able to put up a fight against the King.

I shall now let Lord Denning take up the story in The Family Story, Butterworth, 1981, p. 229:

On May 5, 1215, many of the Barons openly rebelled against the King. They renounced their fealty [loyalty in feudal times] to him. … On May 12 he [King John] ordered their estates to be seized. But the Barons marched towards London which, on May 17, opened its gates to them. This was decisive. The Barons, with the support of London, had the whip-hand. John had to sue for peace. … At length a truce was arranged from June 10 to June 15.

The first meeting at Runnymeade was on June 10, 1215. There were present King John, the Archbishop Stephen Langton, and some baronial envoys. At this meeting the Barons presented their demands and the King submitted to them.

At p. 230:

On June 15 the truce was due to expire. On that day the parties assembled in great numbers at Runnymede and agreement was reached on all points. The King and those present all solenmly swore to abide by the agreement. This day was regarded as so important that, when the Charter was afterwards drawn up, it was given the date, June 15.

At the bottom of p. 230 and at p. 231:

The peace did not last long. In a couple of months the parties were again at war. The King looked for aid to Rome. … August 24, 1215, Pope Innocent III purported to annul the Charter. … he excommunicated the English Barons. … But John’s death on October 12, 1216, at Newark Castle, altered everything. Early in the reign of the young King Henry III the Great Charter was confirmed by his regents. In the years 1225 it was re-issued by the King himself under the Great Seal. Magna Carter then took its final form, word for word, as it stands today as the earliest enactment on the Statute Rolls of England.

The Great Charter dealt with grievances of the time in a practical way. It gave legal redress for the wrongs of a feudal age. But it was expressed in language which has had its impact on future generations. It put into words the spirit of individual liberty which has influenced our people ever since.



We find set down in the thirty-ninth clause the guarantee of freedom under the law [all the clauses of the Magna Carta were in Latin; the translation is by Lord Denning]: (No free man shall be taken, imprisoned, disseized [deprived of feudal interest in land], outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land).

Immediately following, in the fortieth clause, is the guarantee of the impartial administration of justice [in Latin; Lord Denning gives the translation] (To no one will we sell, to no one will we deny or delay right or justice).

At pp. 231, 232:

The constitutional significance of Magna Carta is immense. It was thus measured by Bryce: “The Charter of 1215 was the starting point of the constitutional history of the English race, the first link in a long chain of constitutional instruments which have moulded men’s minds and held together free governments not only in England, but whenever the English race has gone and the English tongue is spoken”. When the colonists crossed the seas from England to countries the world over, they took with them the principles set down in the Charter. Those who went to Virginia took its very words. When they renounced their allegiance in 1776, they stated in their Declaration of Rights that “no man be deprived of his liberty, except by the law of the land or the judgment of his peers”. Thence the provisions of the Charter found their place in the Constitution of the United States. There it is revered as much as here.

The Bill of Rights 1688 and the Act of Settlement 1701


For this Lord Denning has put it succinctly in The Family Story, pp. 192, 193:

No member of the government, no member of Parliament, and no official of any government department, has any right whatever to direct or to influence or to interfere with the decisions of any of the judges. It is the sure knowledge of this that gives the people their confidence in the judges. … The critical test which they must pass if they are to receive the confidence of the people is that they must be independent of the executive.

Why do the English people feel so strongly about this? It is because it is born in them. We know in our bones that it will not do for us to allow the executive to have any control over the judges: and we know it because our forefathers learnt it in their struggles with the kings of England - the kings who in the old days exercised the supreme executive power in the land. Ever since the Act of Settlement in 1701 it has been part of our constitution that a judge of the High Court cannot be removed except for misconduct. … Secure from any fear of removal, the judges of England do their duty fearlessly, holding the scales even, not only between man and man, but also between man and the State. Every judge on his appointment takes an oath that he “will do justice to all manner of people according to the laws and customs of England, without fear or favour, affection or ill will”. Never since 1701 has any judge failed to keep that oath.



The Houses of Parliament enjoy certain privileges. One of them is freedom of speech. Erskine May says: “What is said or done within the walls of Parliament cannot be enquired into in a court of law”. The Bill of Rights 1688, art. 9, s. 1, says:

“That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.”

Now you know why I think she does not understand what she is saying. If she does understand what she wrote then she would not have decided the instant appeal in the way she did at the conclusion of her overlong judgment.

But what has all this got to do with the two clauses in Article 16?

But the most important point of all, after 114 pages of mumbo-jumbo that she wrote, is this: what has all this got to do with the two clauses of Article 16 of the Laws of the Constitution of Perak?

The United Kingdom does not have a written Constitution and in order to understand it fully one should be well acquainted with the history of England. Whereas Malaya and later Malaysia has a written Constitution which may be changed by a two-thirds majority in Parliament. But, here in this appeal the lady judge is, and should be dealing with, the two points that really matter which are the two clauses of Article 16 of the Perak Constitution.

After having said that, I shall go straight to the points at issue. How did she answer them? It took her 114 pages of circuitous writing before she finally came to the wrong conclusion that “His Royal Highness had … rightly exercised his constitutional powers as provided for and under the Perak State Constitution solely for the best interests of his subjects”.

I am stunned by her naivety. I am at a loss for words.

We all know that there is no provision in the Constitution of Perak which provides constitutional powers to the Sultan to act “solely for the best interests of his subjects”. For this judge to say that there is such a power when there is no provision in the Constitution of Perak for the Ruler to have such power is to mislead the uninformed public. A judge who misleads cannot be trusted. She has disgraced herself on the seat of justice.

Professor Andrew Harding took up 4 pages and Professor Kevin Tan 5 pages to come to the correct conclusion. Sometimes I wonder where these recalcitrant judges read law. I have a theory. One way is to memorise all the lecture notes - when I was a student in London I heard that many of our students memorized the notes supplied by Gibson and Weldon and passed their examinations. They forget that LAW is a reading subject. Ever heard of the expression, we joined a university or the Inns of Court to read law? You study mathematics or science but you read law.

After meandering for 114 pages she concluded, p. 114:

Thus I share the view expressed by my learned brothers Raus Sharif JCA and Ahmad Maarop JCA that in the context of this appeal, His Royal Highness had in the critical situation rightly exercised his constitutional powers as provided for under the Perak State Constitution solely for the best interests of his subjects. This decision being unanimous, the orders are as comprehensively set out in the judgment of my learned brother Raus Sharif JCA.

What I have said in my severe critique of Raus Sharif and Ahmad Maarop JJCA in the first part of this article applies, mutatis mutandis (allowing for the appropriate changes), to Zainun Ali JCA. Need I say more.

I am as much disgusted as most of you are of judges of such inane quality. In the present context, “learned” is a funny word. I know some of you may say that the word is only a title applied in referring to a member of the legal profession. It has no meaning. I hope so, otherwise it will mislead the public further.




Gobbledegook and regurgitation galore in the 2 written judgments of the Court of Appeal in Zambry v Nizar


by N.H. CHAN
Prologue
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I shall start with an aside on the dictionary definition of the two words which feature in the title of this article.

Gobbledegook means unintelligible language.

Regurgitate means repeat information without understanding it. Regurgitation is the noun.

After you have read the article you should have an inkling of what I am trying to suggest with the words. You can then judge for yourself.

There are only two points that really matter in this appeal: Clauses (2)(a) and (6) of Article 16

Let us see if ordinary people like us can understand Clauses (2)(a) and (6) of Article 16 of the Laws of the Constitution of Perak better than the judges of this Court of Appeal.

Clause 16(2)(a) reads:

His Royal Highness shall first 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 the majority of the members of the Assembly.

Clause 16(6) reads:

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, he shall tender the resignation of the Executive Council.

The language of these two clauses, Clause (2)(a) and Clause (6), is easy to understand. There is no ambiguity.

Clause (2)(a) is definitive. It is only in this clause that the Ruler has been given the discretion to appoint a Menteri Besar which is based on his judgment.

On the other hand, it is only in Clause (6) where it is said that if the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly then he would be able to ask the Ruler to dissolve the Assembly. If the request for the dissolution of the Assembly is withheld by the Ruler (who has the discretion to do so under Article 18(2)(b)), the incumbent Menteri Besar has to tender the resignation of the Executive Council.

It is important that we note that there is no provision for the incumbent Menteri Besar to resign. In fact, in the present case, the incumbent Menteri Besar Nizar had refused to resign even though he was ordered by the Ruler to do so. Of course, all of us know that the Ruler has no such power to order anyone to do anything. It was unconstitutional of the Ruler to do so.

While members of the Executive Council hold office at the pleasure of the Ruler, it is not so with the Menteri Besar.

Clause (7) of Article 16 states:

Subject to Clause (6) a member of the Executive Council other than the Menteri Besar shall hold office at His Royal Highness’ pleasure.

That said, I return to the first part of Clause (6) which I am going to discuss below.

The proper duty of the conjunction “if” is to introduce a conditional sentence

The operative word in Clause (6) is the conjunction “if”. I refer to Fowler’s Modern English Usage (2nd ed) where it says:

if. To avoid possible ambiguity it may be prudent to confine if to its proper duty of introducing the protasis of a conditional sentence, and not to use it as a substitute for though or whether or (with not) to introduce a possible alternative.

In case you do not know the meaning of the word “protasis”, it means the clause that states the condition in a conditional sentence. In English the protasis is generally introduced by if or unless.

But don’t trust Microsoft’s word processor because it suggests the word “protasis” does not exist in the English language. Of course, Fowler is the authority on the usage of the English language (Churchill once wrote to the Director of Military Intelligence about the plans for the Normandy landings, “Why must you use intensive here? Intense is the right word. You should read Fowler’s Modern English Usage on the use of the two words”). Or you may use a good dictionary, not a condensed one, and you will find the word.

The dictionary meaning of the conjunction “if” means “on condition that, whenever” or “supposing that, in the event that”. In the present context, “if” is used to mean “on condition that, whenever”.

So that Clause (6) is to read like this:

On condition that “the Menteri Besar ceases to command the confidence of the majority of the Members of the Legislative Assembly, then,” he can request the Ruler to dissolve the Assembly.

This sentence means that “whenever” a Menteri Besar has ceased to command the confidence of the majority of the Assembly, he can request the Ruler to dissolve the Assembly. As stated in Fowler, the proper duty of “if” is to confine the word to introducing the protasis of a conditional sentence. The condition in the sentence is that the Menteri Besar’s loss of confidence in the Legislative Assembly has to be established first before the Menteri Besar can request the Sultan to dissolve the Assembly.


Therefore, it is only on the condition that a Menteri Besar has lost (ceased to command) the confidence of the majority of the Assembly before he can request the Ruler to dissolve the Assembly.

Definitely, it is not up to Nizar the incumbent Menteri Besar to say that he has lost the confidence of the Assembly. How could he be sure of that without a vote being taken at the Assembly? At best, Nizar could only be guessing. Obviously, the only way in which it could be shown with any degree of certainty that Nizar had lost the confidence of the majority of the members of the Assembly is to go to the Assembly itself for a vote to be taken.

But what happens when an MB had lost a formal vote of confidence in the Assembly and still refused to resign?

But then, one may ask the hypothetical question (because this is not the case here), what happens when a Menteri Besar knows by a vote being taken in the Legislative Assembly that he has lost the confidence of the majority of the Assembly? Can he refuse to resign? Professor Kevin YL Tan in his essay which appears on the web portal LoyarBurok (www.loyarburok.com) tells us that:

This happened in Kelantan in 1977 when its MB, Datuk Mohamed Nasir refused to resign even though he had lost a formal vote of confidence in the Kelantan LA, been sacked by his own party, and had his request for dissolution of the LA refused by the Sultan of Kelantan. The impasse led to the declaration of a state of emergency by the Federal Government that lasted three months, after which the LA was dissolved for fresh elections.

Alas, this single precedent is not particularly instructive. No legal solution was possible and ultimately, the situation was resolved politically by the Sultan dissolving the LA and allowing fresh elections to be called. Perhaps, all rulers and governors should, as a matter of course, accede to requests by their respective MBs to dissolve the LA for fresh elections to be called unless the ruler has a premonition that a calamity might befall the state if he so acceded. That way, new mandates are quickly determined and the business of government can proceed once a new leadership is established. Indeed, the Sultan of Perak supported this view of a ruler’s powers when he was Lord President. In his 1992 essay, “The Role of Constitutional Rulers”, he opined:

“… under normal circumstances, it is taken for granted that the Yang di-Pertuan Agong would not withhold his consent to a request for dissolution of Parliament. His role under such a situation is purely formal.”

This point was picked up by counsel for Nizar and cited with approval by the High Court.

The Sultan has no explicit power to dismiss an MB under the Perak Constitution. Indeed, neither is the Yang di-Pertuan Agong empowered to dismiss a Prime Minister under the Federal Constitution.

It seems that ordinary people are better than these judges because they could understand what the two clauses mean

Now that you are apprised of the meaning of the two clauses that really matter in the appeal, you should be in a better position than the appellate judges who have missed the points to come to their decision.

We all know that whenever there is a situation when there is no Menteri Besar, such as when the incumbent Menteri Besar dies or resigns or has been disqualified as an Assemblyman (because Nizar is an Assemblyman) or has been removed from office by the Assembly, then the Ruler “shall first 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 the majority of the members of the Assembly”: so says Article 16(2)(a). This is the only occasion in which a Ruler can use his “judgment” to select and appoint a Menteri Besar.

We also know that a Menteri Besar, once he has been appointed by the Sultan under Clause (2)(a), cannot be removed by him. The Menteri Besar does not hold office at the Sultan’s pleasure.

The Sultan has no power to dismiss the incumbent Menteri Besar Nizar Jamaluddin or to declare the office of Menteri Besar vacant: so says Article 16(7), “Subject to Clause (6) a member of the Executive Council other than the Menteri Besar shall hold office at His Royal Highness’ pleasure.” (the emphasis is mine).

So that when Nizar refused to resign after the Sultan has declined to dissolve the Legislative Assembly, the Sultan had no power to dismiss him nor had he the power to appoint another Menteri Besar when Nizar is still the Menteri Besar as he had not resigned his office.

So then, how are we to determine a loss of confidence in the Assembly? Certainly not by an outsider like us. Not even Nizar himself was in any position to say that he did not command the confidence of the majority of the Legislative Assembly. Only the Assembly can determine if Nizar has lost the confidence of the majority of its members.

Therefore, the reality of the situation is that Nizar is still the Menteri Besar when he refused to resign and the Sultan has no power to dismiss him or to deem the office of Menteri Besar vacant.

The Sultan has no discretion or power to appoint a second Menteri Besar when the incumbent is still in office. The Perak Constitution does not provide for two Menteri Besar-s.

Any decision of the courts otherwise is a perverse one because such a decision is not made according to the Laws of the Constitution of Perak.

Don’t you think all of you ordinary people are better judges than these recalcitrant judges of the Court of Appeal? At least (now that you are informed of the constitutional provisions), you know how to apply the relevant law which is applicable in the present case, whereas the judges don’t seem to know how to do it.

Now that you know the law which applies, you are in a position to judge the two judges

So far the Court of Appeal has issued two written judgments. Let us see if the judges who wrote them come up to your expectations.

Raus Sharif JCA who sat as the chairman of this Court of Appeal meandered through 43 tedious pages of his 48 page judgment before he came to the conclusion that Article 16(6) makes no reference to a motion of loss of confidence to be passed by the Legislative Assembly and therefore he concluded that the High Court judge had erred in law. This is what Raus JCA said at p. 43:

For the above reasons, I find that the learned judge had erred in law in concluding that the only manner in which the loss of confidence of the majority of members of the Legislative Assembly could only be ascertained by way of motion to be passed in the Legislative Assembly. Such a finding is contrary to the provisions of Article XVI(6) of the Perak State Constitution which makes no reference to such a motion having to be tabled.

Remember my explanation above about the conjunction “if”? In the instant case the use of the conjunction “if” means “on condition that” or “whenever”. So that the opening words of Article 16(6) should read, thus:

On condition that “the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then,” he can request the Ruler to dissolve the Assembly.

In other words, the loss of confidence in the Legislative Assembly must be established first before the Menteri Besar can make his request to the Ruler for a dissolution of the Assembly. Obviously the only way to establish that Nizar has lost the confidence of the majority is to ask the members of the Assembly themselves. It would be incorrect to ask Nizar because he could only guess at his own popularity.

Undoubtedly, you must never ask the Ruler to determine the loss of confidence of a Menteri Besar in the Legislative Assembly as he has no power to determine on the status of the Menteri Besar’s popularity in the Assembly. And if the Court of Appeal was to confer such power on the Ruler, then it is a blatant refusal of the court to administer justice according to the Laws of the Constitution of Perak.

Of course, in Article 36(2) the Sultan is given a general power “to prorogue or dissolve the Legislative Assembly”.

Yet, the judge has relied on the Ruler’s determination that Nizar no longer commands the confidence of members of the Assembly. This is what Raus Sharif JCA said, at p. 40 of his 48 page judgment:

It is an undisputed fact that His Royal Highness interviewed the 3 independent members separately in order to ascertain whether they were really supporting Barisan Nasional. They informed His Royal Highness that they no longer supported Nizar as the Menteri Besar. Instead they declared their support to Barisan Nasional. At the end of it, His Royal Highness was satisfied that with the 31 members of the Legislative Assembly supporting the Barisan Nasional, Nizar no longer command the confidence of the majority of the members of the Legislative Assembly.

This is a trashy piece of reasoning coming from an appellate judge. Raus Sharif JCA seems not to know that the Ruler is only a constitutional monarch with no prerogative power to do anything but that which the law allows him.

Plainly, the use of the conjunction if in Clause (6) speaks volumes. The loss of confidence of the Menteri Besar in the Legislative Assembly must be established first before the Menteri Besar can make his request to the Sultan to dissolve the Assembly. In this case Nizar requested the Sultan to dissolve the Legislative Assembly before it could be established that the Menteri Besar has lost the confidence of the majority in the Assembly.

Without doubt, it must not be left to interested parties - neither Nizar nor Zambry and his cohorts - to determine the loss of confidence of a Menteri Besar in the legislature. Not even a constitutional monarch could determine the loss of confidence of a Menteri Besar in the Legislative Assembly because he has no power to do so. Not even the judges can confer on themselves a power which does not exist to determine the loss of confidence in the Legislative Assembly of a Menteri Besar except the Assembly itself. It would be unfair and unjust to do so.

The judgment of Ahmad Maarop JCA

Ahmad Maarop JCA arrived at the same conclusion as Raus Sharif JCA except that Ahmad Maarop JCA is more long-winded.

At p. 42 of his 76 page convoluted judgment Ahmad Maarop JCA said:

In conclusion, I hold that there is no mandatory and/or express requirement in the Perak State Constitution that provides that there must be a vote of no confidence passed in the Legislative Assembly against Nizar before he ceased to command the confidence of the majority of the members of the Legislative Assembly. The fact that he ceased to command the confidence of the majority of the members of the Legislative Assembly under Article XVI(6) could be established by other means. Thus, His Royal Highness was right in making enquiries to satisfy himself as to whether Nizar had in fact ceased to command the confidence of the majority of the members of the Legislative Assembly, in considering Nizar’s request for the dissolution of the Legislative Assembly.

It took this judge 42 pages to reach this conclusion.

At the recent launch of my book, How to Judge the Judges, on 29 June 2009, Mr. Justice Gopal Sri Ram FCJ remarked:

But where a judgment is tainted with intellectual dishonesty there is nothing much you can do except to expose the fallacy of the grounds put forth to justify a conclusion already reached before hearing counsel.

Now let us expose the fallacy of the finding of this judge.

The judge said that whether Nizar had ceased to command the majority in the Assembly could be established by other means. One may ask, what other means could there be? He could only give one example. He said:

Thus, His Royal Highness was right in making enquiries to satisfy himself as to whether Nizar had in fact ceased to command the confidence of the majority of the members of the Legislative Assembly, in considering Nizar’s request for the dissolution of the Legislative Assembly.

But, all of us know that the Sultan has no power to do anything except that which the law allows him.

As Professor Andrew Harding has correctly said in his essay “Crises of Confidence and Perak’s Constitutional Impasse” which is featured on the web portals Malaysian Insider and www.loyarburok.com:

Accordingly the issue seems to become, 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.



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.

The judge in Professor Harding’s essay is the much respected Mr. Justice Abdul Aziz of the High Court.



Conclusion

I trust I have exposed the fallacy of the grounds put forth by the two judges of the Court of Appeal. All of you (the ordinary people), who have been informed of the relevant provisions of the Laws of the Constitution of Perak by reading this article, know that there are only two clauses of Article 16 which apply to the points that really matter before the Court of Appeal. In Clause (2)(a) the head of state is empowered to make a judgment as to matters of confidence. Whereas in Clause (6) he is not given the power to do so but the legislature is.

Mr. Justice Abdul Aziz in the High Court gave the correct answer by saying it is the legislature, not the head of state, who is empowered to make the judgment as to whether the Menteri Besar still had the confidence of a majority. And, I trust, all of you would agree with him.

Raus Sharif and Ahmad Maarop JJCA are wrong. They are wrong because there is no empowering provision in Article 16(6). They did not apply the law as it stands. Indeed they have blatantly refused to apply the Laws of the Constitution of Perak. They should be ashamed of themselves for not administering justice according to law. The common people of this country can now judge them for who they are.

The full text of the two judgments can be found on the internet. If you have difficulty in finding the cases, try www.loyarburok.com here. If you, as a layman, find the judgments unintelligible then that is what the word gobbledegook means. On the other hand, if you find the lengthy judgments merely repeating information which is unnecessary to the two points that matter in the appeal then that is precisely what regurgitation means. So now you can appreciate the title of this essay. - Loyarburok.com