Wednesday, September 9, 2009

Speaker vs Speaker: Judge slapping his own face? - Malaysiakini

By Kim Quek Sep 9, 09 4:55pm

A tragic yet hilarious court proceeding took place in the Ipoh High Court on Sept 8 when the judge blatantly contradicted himself in dismissing a suit brought by Perak's Pakatan Rakyat speaker against the state's Barisan Nasional speaker (yes, two speakers in the Perak assembly).

Judge Azahar Mohamed rejected V Sivakumar's suit to seek damages from R Ganesan for assault and false imprisonment during the chaotic and violent state assembly sitting on May 7.

He said the court had no jurisdiction to hear the case due to Federal Constitution Article 72 stipulating that "the validity of any proceeding in any state assembly cannot be questioned in any court".

And yet in the same breath he declared that "the decision of the legislative assembly to remove the plaintiff as speaker and to appoint the defendant was conclusive and had been fairly determined by the state assembly on May 7, 2009."

Now, the crux of the entire contention between the two speakers is: Who is on the right side of law in the violent tussle for the speaker's chair on May 7?

By declaring Ganesan as the rightful speaker, Judge Azahar is in fact making a legal judgment. Is that not a breach of Article 72? How come he has no jurisdiction to hear Sivakumar's grievances but has jurisdiction to judge Ganesan as legal speaker?

Is that not a contradiction of the highest order?

Apart from this atrocious double standard applied by the judge, the main flaw of the judgment is the inability to differentiate between assembly proceeding and criminal behaviour.

What Sivakumar is seeking is redress for the unlawful physical violence inflicted on him. And Article 72 covers only businesses conducted in the assembly - not unlawful and criminal act.

Judge Azahar has therefore wrongly used Article 72 to come to his judgment. To make it very clear that this is the case, I will quote in full the relevant clauses in Article 72 (Clauses 1 & 2) and explain the reasons why.

* Clause 1: The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

* Clause 2: No body shall be liable to any proceedings in any court in respect of anything said or vote given by him when taking part in proceedings of the Legislative Assembly of any State or of any committee thereof.

Note the operative words "proceedings" in Clause 1 and "anything said or any vote given" in Clause 2. It is abundantly clear what Article 72 refers to are the speeches and resolutions made in the assembly, not any criminal or unlawful act.

Tragedy and comedy


But what happened on May 7 was complete pandemonium and chaos in the assembly hall. There was no chance to conduct any business at all, least of all any resolution passed. In fact, the only business done on that day was the address by the Perak Regent Raja Nazrin Shah.

And how was Sivakumar "replaced" by Ganesan during that pandemonium?

While Sivakumar was sitting in the speaker's chair, hordes of police personnel entered the assembly hall, allegedly on Ganesan's order, and physically lifted, carried, dragged and moved speaker Sivakumar into a room where he was forcibly detained until the assembly sitting was over.

And as soon as Sivakumar was removed from the hall, police personnel escorted Ganesan into the hall and ushered him to the speakers chair, with police personnel making a line to stand guard in front of Ganesan to prevent any assemblymen from reaching the speaker's chair.

The entire tragedy-comedy was stage-managed by the police, and it is therefore more appropriate to say that while Sivakumar was elected by the assembly through a resolution, Ganesan was physically planted into the speaker's chair by the police. And that about sums up what happened on that tragic-hilarious day.

And since Judge Azahar appears to be so respectful of the constitutional principle of separation of power as demonstrated by his professed adherence to Article 72, is it not puzzling that he should have chosen to ignore completely the heinous violation of the doctrine of separation of power when hordes of police personnel invaded the assembly to physically replace one speaker with another?

Is it not another shining example of double standard in the Malaysia Boleh tradition?

After the series of judicial decisions that appear to wantonly trample the constitution and the law following the shameful power grab in Perak, the latest low represented by Azahar's decision makes us wonder how much lower our judiciary can sink into, as many more judicial decisions in the same series are still pending.

Friday, September 4, 2009

EC acted beyond powers in not holding polls in Perak, court told

Sept 4, 2009

KUALA LUMPUR: The Election Commission (EC) acted beyond its powers and functions in not holding by-elections for three state seats in Perak, the High Court here was told Friday.

Counsel Datuk S. Ambiga said the EC's decision in holding that the state assembly seats of Behrang, Changkat Jering and Jelapang were not vacated as a result of the resignation of the three assemblymen, as determined by the then speaker of the state assembly V. Sivakumar, was illegal and irrational.

"The fourth respondent (the EC) had usurped the powers and right of the speaker (Sivakumar) to determine that a resignation had taken place," argued Ambiga before Justice Lau Bee Lan in her chambers.

Ambiga, former president of the Bar Council, was representing Sivakumar in his leave application for a judicial review to compel the EC to declare the three seats vacant and hold by-elections.

In his application, Sivakumar had named state assemblymen Jamaluddin Mohd Radzi (Behrang), Mohd Osman Mohd Jailu (Changkat Jering) and Hee Yit Foong (Jelapang), and the EC as respondents.

Ambiga, in her submission, also contended that the EC, by its letter to Sivakumar dated Feb 5, 2009, had stated that it was unable to ascertain whether the three seats had been vacated and, therefore, could not call for by-elections.

"Having determined that it could not ascertain that a vacancy had occurred, the EC had contrarily made a decision that the three seats were still held by the first to third respondents," she said.

Sivakumar, 38, is seeking a court order to quash the EC's decision and to compel the EC to hold by-elections in the Behrang, Changkat Jering and Jelapang state constituencies.

He also wants the court to grant an injunction to stop Jamaluddin, Mohd Osman and Hee from acting as and carrying out the functions and duties of assemblymen of the respective state seats.

He is also seeking a writ of "quo warranto" to compel the trio to show under what basis or authority they still remained the elected representatives of their constituencies and carried out the responsibilities, functions and duties of an assemblyman.

The court fixed Sept 9 to hear the reply from the EC, represented by Senior Federal Counsel Datuk Kamaludin Md Said. - Bernama

Sunday, August 30, 2009

Nizar: Sidang DUN Perak tetap diadakan Rabu ini 3 Sept 2009 - MStar

30 Ogos 2009 Oleh G. MANIMARAN

PETALING JAYA: Sidang Dewan Undangan Negeri (DUN) Perak akan tetap diadakan Rabu ini walaupun disifatkan sebagai tidak sah oleh Speaker diiktiraf Barisan Nasional (BN), kata bekas Menteri Besar, Datuk Seri Ir. Mohammad Nizar Jamaluddin.

"Sidang DUN Perak akan diadakan seperti yang telah ditetapkan dan sebagaimana notis yang telah dikeluarkan sebelum ini," kata beliau ketika dihubungi sebentar tadi.

Jelas Nizar, sidang DUN akan tetap diteruskan sebagimana telah dimaklumkan oleh V. Sivakumar "selaku Speaker yang sah" dalam notisnya.

"Sivakumar merupakan Speaker yang sah. (Datuk) Ganesan bukan Speaker," kata beliau yang juga Ahli Parlimen Bukit Gantang dan ADUN Pasir Panjang.

Oleh itu kata Nizar, Ganesan tidak boleh menghalang mana-mana ADUN daripada menghadiri sidang kali ini.

Ketika ditanya kemungkinan akan ada usaha menghalang sidang yang dimaksudkan itu sebagaimana pernah disaksikan 3 Mac lalu, Nizar memberitahu, usaha sedang diambil oleh Sivakumar untuk mengelakkan suasana sedemikian.

"YB Sivakumar sudah memohon kepada mahkamah agar dikeluarkan satu perintah bagi menghalang mana-mana pihak eksekutif daripada mengadakan halangan," katanya.

Permohonan itu telah dibuat baru-baru ini dan diharap keputusan akan diperoleh Selasa ini, katanya lagi.

Semalam, Datuk R. Ganesan, Speaker yang diiktitaf Barisan Nasional (BN) berkata, semua Ahli Dewan Undangan Negeri (ADUN) Perak tidak perlu menghadiri persidangan dewan yang dipanggil pada Rabu ini kerana arahan yang dikeluarkan adalah daripada sumber tidak sah.

Ganesan menegaskan, tindakan Sivakumar yang juga ADUN Tronoh memanggil sidang itu adalah pelik kerana beliau bukan lagi Speaker.

Menurut Nizar, notis untuk mengadakan sidang DUN perlu dikeluarkan 14 hari sebelum persidangan dan ia "telah diterima lebih awal daripada itu."

Pada Mei lalu, Sivakumar mengeluarkan notis sidang DUN tergempar 11 hari lebih awal sebagaimana sah diperuntukkan undang-undang, Perintah Tetap Dewan Negeri (PT)8(1).

Bagaimanapun ia dihalang dan terpaksa mengadakan sidang di bawah pokok berhampiran DUN.

Saturday, August 29, 2009

BN’s Speaker accuses PR’s Sivakumar of treason - Malaysian Insider


IPOH, Aug 29 — The two Perak “Speakers” have gone to war with each other again, with Barisan Nasional’s Datuk R. Ganesan accusing Pakatan Rakyat’s V. Sivakumar of committing treason against the Perak royalty.

The mudslinging is barely a few days ahead of Wednesday’s impending state assembly “sitting” which was called by Sivakumar earlier this month.

At a press conference here today, Ganesan said that by summoning the state assembly to convene on Sept 2 without seeking royal consent, Sivakumar had not only infringed the Perak constitution but had also showed disrespect and disloyalty to Sultan Azlan Shah and shamed the Perak state assembly.

"Only the Sultan has the absolute discretion to convene an assembly sitting and this is provided for under Article 36(1) of the Perak constitution.

“A state assembly sitting always has to receive endorsement from the Sultan. No one else can just call for a sitting,” he said.

As such, Ganesan said he had sent out notices to all Perak legislative members warning them against attending Wednesday’s sitting.

“I will not hesitate to take action under the state assembly’s Standing Orders against those who get involved in this so-called state assembly sitting.

“As members of the state assembly, I hope everyone would honour their oaths and do the right thing — ignore whatever orders given by Sivakumar because he is no longer the legal Speaker,” he said.

Ganesan’s notice was distributed to counter the one sent by Sivakumar on Aug 12 informing the assemblymen of Wednesday’s sitting.

Ganesan said Sivakumar’s act of masquerading as the legal Speaker was tantamount to a power grab, which challenged and insulted the royal institution.

“This is why I have also lodged a police report against him for posing as the Speaker and calling for a sitting. I hope the police will do the necessary,” he said.

Ganesan added that he expected that the PR representatives would storm the state secretariat on Wednesday morning, and create chaos in the hope of keeping themselves in the limelight with the people.

“Their aim is also to provoke the police to act aggressively against them in front of the foreign media so they can prove to the world that they are being victimised,” he said.

Meanwhile, Ganesan said he plans to initiate investigations into Sivakumar soon in a state assembly Rights and Privileges Committee meeting.

“I have already received numerous complaints against him from members of the BN Backbenchers Club and as chairman of the committee, I will look into them,” he said.

Wednesday, August 26, 2009

Sivakumar saman Setiausaha Kerajaan Negeri Perak - MStar

26 Ogos, 2009

IPOH: Anggota Dewan Undangan Negeri kawasan Tronoh V.Sivakumar hari ini memfailkan saman terhadap Setiausaha Kerajaan Negeri Perak Datuk Dr Abdul Rahman Hashim untuk menuntut ganti rugi, ganti rugi teruk dan ganti rugi contoh.

Writ saman itu yang difailkan melalui Tetuan Chan & Associates di pejabat Pendaftar Mahkamah Tinggi di sini tengah hari tadi, meminta defendan mengemukakan maklum balas dalam tempoh lapan hari dari tarikh ia difailkan.

Dalam writ saman itu, Sivakumar yang juga bekas Speaker Dewan Undangan Negeri (DUN) turut memohon injuksi untuk menghalang defendan atau ejen atau pekerja Abdul Rahman daripada menafikannya daripada memasuki dan menggunakan Dewan Negeri atau menghalang plaintif daripada menggunakan pejabat dan menjalankan tugasnya sebagai Speaker DUN.

Beliau turut memohon injuksi untuk mencegah sebarang penyalahgunaan, campur tangan atau pencerobohan daripada pihak defendan atau ejen atau pekerja Abdul Rahman.

Dalam pernyataan tuntutan itu, Sivakumar mendakwa Setiausaha Kerajaan Negeri itu atau pekerja atau ejennya telah menghalang beliau dan anggota DUN daripada menghadiri dan memasuki Dewan Negeri yang terletak di Bangunan Perak Darul Ridzuan pada 3 Mac lepas.

Beliau juga mendakwa tindakan defendan menafikan aksesnya ke Dewan Negeri adalah tidak mematuhi undangundang dan tindakan itu adalah tidak berperlembagaan.

Sivakumar turut mendakwa tindakan defendan bersifat dengki dan bertujuan menyakiti plaintif di mana defendan berpihak kepada Datuk R.Ganesan sebagai Speaker dan menafikan hak plaintif sebagai Speaker yang sah.

ADUN Tronoh itu turut mendakwa defendan sedar atau mengetahui bahawa sebagai kakitangan kerajaan, defendan tidak mempunyai kuasa untuk campur tangan atau menceroboh urusan Dewan Undangan sebagai majlis menggubal undangundang dan tindakan defendan atau pekerja atau ejennya akan menyakiti plaintif.

Sivakumar mendakwa akibat tindakan salah atau penyalahgunaan kuasa defendan, plaintif dilucutkan suatu tempat untuk mengadakan persidangan Dewan Undangan Negeri dan dihalang daripada menjalankan tugas dan tanggungjawabnya sebagai Speaker DUN yang sah.

Dalam butiran penyalahgunaan, Sivakumar mendakwa Abdul Rahman sepatutnya sedar dan tahu bahawa beliau tidak mempunyai kuasa untuk campur tangan dalam hal ehwal Dewan Undangan.

Bekas Speaker itu juga mendakwa defendan menunjukkan sifat berat sebelah dengan memihak kepada Barisan Nasional (BN) sejak 7 Feb lepas selain gagal untuk menjauhkan diri daripada parti politik.

Defendan juga didakwa mengarahkan polis untuk menghalang persidangan Dewan Undangan Negeri dan mesyuarat Jawatankuasa Hak dan Kebebasan selain gagal menjalankan tugasnya selaras dengan perintahperintah am.

Sivakumar juga mendakwa defendan telah bertindak di luar bidang kuasa dan tanggungjawabnya sebagai kakitangan kerajaan dan tidak boleh menuntut perlindungan di bawah Akta Prosiding Kerajaan 1956.

Dalam writ saman itu, Sivakumar mendakwa mengalami mengalami kejutan, kerugian dan kerosakan selain menanggung penghinaan serta perasaan malu di khalayak awam, akibat tindakan Abdul Rahman itu.

Beliau turut menuntut kos dan relief yang difikirkan adil dan saksama oleh mahkamah.BERNAMA

Tuesday, August 25, 2009

Bar says BN Speaker filed notice after deadline - Malaysian Insider

KUALA LUMPUR, Aug 24 — The Bar Council has clarified that Perak Speaker Datuk R Ganesan had only filed a notice of cessation of practice as a lawyer on August 17, ten days after a statutory deadline for him to do so expired.

A letter to the Bar Council which was received on August 17 was however dated August 6.



The actual “Notice of Cessation of Practice as an Advocate and Solicitor” was only field on August 17, as was an accompanying statutory declaration.

Last week, former mentri besar Datuk Seri Mohammad Nizar Jamaluddin revealed that the former Sungkai assemblyman had infringed Article 36A of the Perak Constitution by failing to relinquish his job as a lawyer within three months of his appointment.

Bar Council secretary George Varughese said in a statement today the Bar Council had acknowledged receipt of Ganesan’s letter dated August 6.

But he pointed out that the “Notice of Cessation” was dated August 17.

In the statement, Varughese said Ganesan had faxed a letter to the Bar Council on August 13, six days after the deadline expired, claiming that he had ceased being a lawyer on August 6.

But the notice of cessation remained dated August 17, ten days after the legal deadline.

The Bar Council statement appears to back Perak PR lawmakers in their argument that Ganesan had breached the state constitution and could no longer be Speaker.

In a joint media statement today, Perak PR lawmakers said that while they still maintain Ganesan had not been properly elected Speaker on May 7, he should be disqualified now even if his appointment was accepted.

“We all know that Dato’ R. Ganesan was never properly elected as the Speaker of the Perak State Legislative Assembly at the sitting on 7/5/2009 where the lawful and legitimate Speaker YB V. Sivakumar was illegally and forcibly removed from the State Assembly.

“The purported election of Dato’ R. Ganesan by the BN elected representatives holding a sub-assembly within the Assembly was carried out before the opening of the session of the Legislative Assembly i.e before the opening speech of his Royal Highness the Regent of Perak. How can a proceeding or a decision made prior to the commencement of a meeting be valid?” they said.

As such the PR lawmakers said Sivakumar should still be recognised as the legitimate Perak state Speaker.

Friday, August 21, 2009

Selamat Menyambut Bulan Ramadhan Al-Mubarak



Pakatan Rakyat Perak blog wishes all Muslim Friends "Selamat Menyambut Bulan Ramadhan Al-Mubarak dan Selamat Berpuasa".

Pakatan wants BN Speaker removed for moonlighting - Malaysian Insider

Perak Speaker R. Ganesan stands accused of holding another job besides being the Speaker of the state assembly. — Picture by Choo Choy May

IPOH, Aug 21 — Another battle is raging over Datuk R. Ganesan’s validity as the Perak Speaker, with Pakatan Rakyat leaders here claiming he should be disqualified for holding two jobs — as Speaker and as a lawyer.

Ganesan has, however, denied this and claims he had stopped his practice since his appointment during the chaotic May 7 state assembly sitting.

Former mentri besar Datuk Seri Mohammad Nizar Jamaluddin revealed today that the former Sungkai assemblyman had infringed Article 36A of the Perak Constitution by failing to relinquish his job as a lawyer within three months of his appointment.

Article 36A of the Perak Constitution stipulates: A member who is elected to be the Speaker shall be disqualified from holding such office if after three months of his election to such office or at any time thereafter he is or becomes a member of any board of directors or board of management, or an officer or employee, or engages in the affairs or business, of any organisation or body, whether corporate or otherwise, or of any commercial, industrial or other undertaking, whether or not he receives any remuneration, reward, profit or benefit from it.

Nizar also showed proof to the media: a letter from the Bar Council dated August 12, confirming that Ganesan was still in possession of a valid Sijil Annual and Practising Certificate, registered with the council and sole proprietor of legal firm Messrs Ganesan & Associates.

The letter was in reply to a query by Chan Kok Keong, legal counsel for former Speaker V. Sivakumar, seeking information on Ganesan’s status.

“The council confirmed that as of August 11, more than three months past his supposed appointment, Ganesan was still an actively practising lawyer. This is not allowed under the State Constitution.

“In view of this, Ganesan should be disqualified and should stop receiving any form of remuneration from the state government,” said Nizar.

He added that when PR was in government, he, all his executive councillors and Speaker V. Sivakumar had resigned from their day jobs for holding government office was a full-time responsibility.

“I had to deregister myself as a professional engineer. All of us resigned and concentrated on administrating the government. This is common knowledge,” he said.

He reiterated however that by calling for Ganesan to be disqualified, it did not mean that that PR recognised the latter’s appointment.

“It only further affirms that Sivakumar had always been the rightful Speaker because Ganesan’s appointment was illegal,” he said.

Meanwhile, Ganesan has countered the accusation and fired another salvo of his own.

Shortly after the press conference, he showed proof to the media in the form of another letter from the Bar Council, dated August 20, which stated that he had ceased to be a solicitor as of August 6, just before the three-month deadline.

Ironically, the letter was signed by the same person as the one addressed to Chan on August 12.

“I have already resigned. And anyway, my practice stopped in May. Notifying the council is only a formality,” he said when contacted.

When informed of Ganesan’s letter, former senior executive councillor Datuk Ngeh Koo Ham was unfazed.

“I challenge Ganesan to show us the exact date that he had resigned as a lawyer. Let him answer to that,” he said.

It is learned that Ganesan had last week been served with an affidavit from Sivakumar, stating that he should be disqualified as the Speaker by virtue of him still holding office as a legal practitioner.

Certain quarters believe that Ganesan may have only applied for his resignation upon receiving the affidavit.

Earlier when he was asked for the exact date of his resignation, Ganesan said he could not remember as the matter had been handled by his lawyers.

“I am very busy right now so I hope you understand,” he said, when asked if he could clarify the matter immediately with his lawyers.

Monday, August 17, 2009

Perak politics sink to new low - Malaysiakini

By Humayun Kabir
Aug 17, 09 6:24pm

Two changes of government within a year in Perak hasn't just caused chaos - it has also resulted in the rival political camps attempting to claim credit for any progress made in the state administration.

Today, their spat centred on which coalition has done more in getting land titles for residents occupying government land in new and planned villages around Taiping.

DAP's Taiping parliamentarian Nga Kor Ming claimed that Barisan Nasional (BN) had hijacked the credit for applications for land titles in Baru Aulong Tambahan new village.

At a press conference outside the Taiping municipal hall, he said the residents from the low-income group had lived there for nearly 30 years without getting land titles from the BN state government.

Nga said he and party colleague Yew Tian Hoe - the Aulong assemblyperson - had worked hard over the past year in getting the 193 residents to submit their application forms to the state government..

Pakatan Rakyat had won control of the state after the general election last March, only to lose it to the BN 10 months later due to defections.

“Now they (BN) want to hijack our labour for their political mileage,” said an angry Nga who is also state party secretary.

He claimed that, about two weeks ago, someone from the land office started distributing 59 copies of Form 5 (for applications) to the villagers.

“He received a call on his mobile phone and immediately stopped distributing the forms to the remaining villagers,” claimed Nga.

“He told the villagers that he had received orders from the Larut Matang district land office to stop issuing the forms and return to the office.”

The angry villagers, together with Nga, later confronted District Officer Mahmud Morshidi at his office. The officer then promised to continue issuing of the forms on Aug 18.

However, the date was abruptly brought forward to today - and the honour of giving the land application forms went to the BN.

Menteri Besar Zambry Abd Kadir was represented at the event by state executive councillor and Kamunting assemblyperson Mohammad Zahir Abdul Khalid, who handed out the forms to 188 villagers from Baru Aulong Tambahan (80 applicants), Air Kuning (31), Batu 14 Trong (26) and Kaki Bukit Jana (51).

Zahir's version of events

Nga further claimed that he was not given due respect as the Taiping MP at the event. He then walked out of the hall to hold the press conference outside.

“BN must not hoodwink the public by switching the date and causing confusion among the poor villagers who are daily wage earners and cannot take leave from work according to the whims and fancies of BN,” he said.

Nga claimed that 50 of the villagers who turned up today were not given the Form 5 applications but were turned away.

At another press conference, Zahir denied that anyone had been turned away.

“It's just that their applications have not yet been approved by the land office and they have to wait for their turn,” said Zahir.

“It was BN which started the ground work for the land titles before the general election and it is now continuing its policy of giving land titles to the landless and squatters. This is all a political game by Pakatan to gain credit for work done by BN.”

Thursday, July 30, 2009

Pakatan committee finds Perak Speaker guilty of contempt - Star

Jul 30, 2009 By CLARA CHOOI

clara.chooi@thestar.com.my

IPOH: The Pakatan Rakyat-endorsed Rights and Privileges Committee has found Perak Speaker Datuk R. Ganesan guilty of contempt of the House and will recommend a six-month jail term for him in the next sitting.

The committee will also serve a notice to Ganesan soon, directing the former Sungkai assemblyman to vacate the Speaker’s office and stop “impersonating” the Speaker.

Ousted Speaker V. Sivakumar said that the committee had made the decision after concluding its investigation Thursday into a complaint by Pokok Assam assemblyman Yee Seu Kai.

The complaint was against Ganesan’s appointment as the Speaker, his act of bringing the police into the State Assembly and the events surrounding the notorious May 7 sitting.

“The committee has heard testimonials from three witnesses and has concluded that Ganesan has committed contempt of the Assembly.

“We will report to the Assembly that the defendant (Ganesan) should immediately desist from holding himself out as Speaker.

“He should not be allowed to enter the Assembly building whether or not the Assembly is sitting,” Sivakumar said at a press conference at the Syuen Hotel here.

He said that the committee would propose to the Assembly that Ganesan be jailed for six-months or until the Assembly is dissolved, whichever is the sooner, and fined RM500,000 in default of six months’ jail or until the Assembly is dissolved, whichever is the sooner.

The Tronoh assemblyman, who is also chairman of the committee, said the decision was arrived at after it was established that the events in the May 7 sitting were invalid.

“We have accepted and adopted the expert opinion of Tommy Thomas after he was interviewed by the committee,” he said.

Thomas, he said, had explained that the committee, although considered defunct by the Barisan Nasional, was still the State Assembly’s valid select committee since the entire proceedings of the May 7 sitting was illegal.

“This is because the sitting was not declared open by the Raja Muda and as such, no resolution can be passed.

“This means that Ganesan’s appointment and my removal was not lawful,” he said.

Earlier, Sivakumar and the other Pakatan committee members were engaged in yet another face-off with the police and State Secretariat officials when they tried to hold their committee hearing inside the building.

The committee was turned away on Monday when it first tried to hold its hearing.

This time however, the argument turned ugly when Simpang Pulai assemblyman Chan Ming Kai of PKR attempted to push his way through the gates, resulting in a minor scuffle.

The group, which had arrived at the building gates at about 10am, only dispersed at 11.30am with a threat to State Secretary Datuk Dr Abdul Rahman Hashim -- “tell us to our face during our next committee hearing that you are prohibiting us from entering the building or we will force our way in.”

The group had also attempted to enter the building by claiming that they only wanted to have a cup of coffee in the cafeteria.

“We only want to enter the building in our capacity as elected representatives. Why are we being stopped?” said Sivakumar.

The committee will attempt to hold its second investigation at the State Secretariat on Friday and has summoned Perak Mentri Besar Datuk Seri Dr Zambry Abd Kadir and Deputy Speaker Hee Yit Foong.

'Committee dissolved’
In an immediate response, State assembly secretary Abdullah Antong Sabri said that the Rights and Privileges committee could no longer hold meetings as it is deemed to have been dissolved after the May 7 sitting.

He said the committee was valid for only one term and ceased to function after the State Assembly entered a new term, Bernama reported.

“New committee members were appointed during the meeting of the second term on May 7. As such the previous committee chaired by Sivakumar is no longer valid,” Abdullah said.

He said Ganesan was appointed the new State Assembly Speaker and chairman of the Rights and Privileges committee during the sitting.

Tuesday, July 28, 2009

Perak Pakatan wants PSC rep's termination reviewed - Star

Jul 28, 2009 By CLARA CHOOI

IPOH: The Perak Pakatan Rakyat has filed an application seeking a judicial review of the termination of its representative in the state's Public Services Commission (PSC) before his three-year term expired.

The affidavit for the representative, former Kampar MP and DAP member Ngoi Thiam Wah, was filed by counsel A. Magesan from legal firm A. Sivanesan and Co at the High Court here Tuesday.

Former exco member and lawyer A. Sivanesan said that affidavits for another five representatives, who were also terminated, would be filed over the week.

The five comprise of another DAP member, two from PAS and two from the PKR.

In his application, Ngoi is seeking for an order of certiorari to quash the termination notice issued by State Secretary Datuk Dr Abdul Rahman Hashim, which was made effective on June 30 this year.

He is also seeking a mandamus order to reinstate him as a commissioner or alternatively, for the State Secretary to pay him a compensation of RM61,200 as damages for his termination.

In his affidavit, Ngoi said that he was offered a post as a commissioner in the state's PSC via a letter from Dr Abdul Rahman dated Jan 1 this year.

The latter informed Ngoi that he was to assume duty for a three-year period beginning March 1 this year until Dec 31, 2012, and be paid a monthly allowance of RM1,700.

"He was also promised other benefits under Schedule 3 of the Public Services Commission Enactment 1959.

"However, he was not paid a single sen since his tenure commenced in March," said Sivanesan.

Sivanesan said that Ngoi later received the termination letter informing him, without providing a reason, that his services were terminated after June 30.

The letter was signed by one Asri Saad from the state's human resources division on behalf of Dr Abdul Rahman.

Sivanesan said that the Barisan government had committed a breach of contract by not adhering to the terms of Ngoi's appointment.

"Furthermore, when we (Pakatan) took over the government last year (2008), we never terminated the Barisan's commissioners in the PSC because we knew their terms had not yet expired.

"Only once when their terms expired in Dec 31, 2008, did we appoint our own commissioners to replace them," he said.

He added that the decision to appoint commissioners was the prerogative of the state executive council.

Commissioners in the PSC are responsible for the hiring and firing of civil servants in the state government.

Monday, July 27, 2009

Stand off between Perak state secretariat staff and PR members - Star

Jul 27, 2009

IPOH: There was an hour-long stand off in front of the Perak state secretariat building between staff, police and Pakatan Rakyat members who planned to convene their Rights and Privileges Committee against copmplaint of legality of Barisan Nasional Speaker Datuk R. Ganesan.

But at about 11am, the group dispersed after state secretary representative issued a letter stating the meeting was prohibited.

PR members said they would hold the meeting in Syen Hotel instead.

Thursday, July 9, 2009

Nizar does not rule out hartal - Malaysian Insider

By Asrul Hadi Abdullah Sani

PUTRAJAYA, July 9 — Former Perak Mentri Besar Nizar Jamaluddin does not rule out the possibility of a statewide hartal.

“We will discuss at a Pakatan Rakyat (PR) level whether or not that would be the appropriate action to take in the near future; however we are not ruling out the possibility,” he said.

Yesterday, the Perak People’s Action Committee, a non-governmental organisation, submitted a memorandum to the state government, calling for a by-election and giving Barisan Nasional (BN) until Aug 8 to dissolve the assembly or face a complete shutdown of the whole state.

Nizar and Perak Mentri Besar Datuk Seri Zambry Abd Kadir is in a stand-off over the reversal of policies by the BN state government.

Nizar accused BN of dissembling the groundwork set by the former PR state government which he believed was for the good for the people.

Nizar told reporters during a press conference that the he was disappointed with the court’s decision today to allow the current mentri besar to execute and change state policies.

“The reason why we applied for a stay of execution in the Court of Appeal was because we wanted to ensure the status quo. This is because all the policies that we executed for 10½ months before the power grab were all for the betterment of the people of Perak regardless of religion, race or background,” he said.

Nizar added that he was uneasy with the court’s decision and felt it was unfortunate that Zambry was allowed to change state policies.

In his affidavit to the court, Nizar mentioned that BN had taken action which did not benefit the people of Perak and had put aside policies which had been set by PR.

He claimed that Zambry’s government had failed and refused to implement welfare programmes which were approved under the 2009 budget and the state had stop giving perpetual grants to planned villages and new villages.

The state had also delayed the Ipoh Central Project which was aimed at improving the city’s transportation system by having a centralised bus system like Rapid KL.

Nizar condemned the state government’s approval to provide 14,000 hectares of land to companies for tin mining.

“This is a matter which is hard for us to reverse when we return to power because of the agreement made. For 10½ months we did not approve such a large size of land to one or two companies. So to approve 14,000 hectares of land in Grik is unbecoming for Barisan Nasional,” he said.

Nizar also said the auctioning of the Camry vehicles which were the state’s official car was another reason why the BN was unfit to govern Perak.

“I understand that up to yesterday nobody has bought the cars. They are too expensive and they are still in front of the SUK office. So this does not benefit the state,” he said.

Nizar claimed that Barisan Nasional has approved a timber concessionaire for logging near an Orang Asli village in Kampar, saying this was a total betrayal by the state against the community.

“They logged for timber near the community but when Pakatan Rakyat came to power it stopped the process. But I understand that recently the same company has returned to the site,” he said.

Nizar hoped that this would show Malaysians and especially the people of Perak that PR was for the people and that BN's action would be detrimental to the welfare of the people.

MB vs MB: Nizar granted leave to appeal - Star

Jul 9, 2009

PUTRAJAYA: The Federal Court has granted Datuk Seri Mohammad Nizar Jamaluddin leave to appeal the Court of Appeal’s May 22 ruling that Datuk Dr Zambry Abdul Kadir was the rightful mentri besar of Perak.

However, the court rejected Nizar’s application for a stay of execution on the appellate court’s decision, which means Zambry will continue to act as the chief executive of the state.

In a suit filed on Feb 13, Nizar, a PAS member, challenged the legitimacy of Dr Zambry and the new state government.

On May 11, High Court (Appellate and Special Powers) judge Justice Abdul Aziz Abdul Rahim granted a declaratory relief to Nizar that he is still and was the mentri besar at all material times.

However, following an appeal by Dr Zambry, the Court of Appeal’s three-man panel on May 22 unanimously declared Dr Zambry the rightful Perak mentri besar.

Nizar filed the application to appeal against the Court of Appeal’s decision on June 19, asking for a full bench -- the maximum 11-judge panel -- to hear his application.

However, it was a five-man panel that heard the application on Thursday

A prima facie farce in Zambry v Nizar - Malaysiakini

By NH Chan Jul 8, 09 12:01pm

Gobbledegook and regurgitation in Zambry v Nizar

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 of the Perak constitution:

(2)(a) 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;

nizar appeal to federal court 190609 07(6) 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 1 8(2)(b)), the incumbent Menteri Besar has to tender the resignation of the Executive Council.

It is important that we notice 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:

(7) Subject to Clause (6) a member of the Executive Council other than the Mentri 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, Second Edition', 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 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.

nizar appeal to federal court 190609 04The 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 MB's loss of confidence in the Legislative Assembly has to be established first before the MB 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 an MB 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 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 (legislative assemby)was dissolved for fresh elections.

zambry vs nizar court of appeal 220509Alas, 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 diPertuan 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 MB 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 Mentri 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 MB 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).

nizar and perak pakatan adun tree planting event 270509 02So that when Nizar refused to resign after the Sultan has declined to dissolve the Legislative Assembly, the Sultan has no power to dismiss him nor has he the power to appoint another Menteri Besar when Nizar is still the Menteri Besar as he has 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 has fallen 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 menteris besar.

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, 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 it 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 MB 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.

sivakumar and zambry at perak state assembly 130509 04It 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 MB's popularity in the assembly.

And if the Court of Appeal were 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 National. 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 mambers 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 MB in the Legislative Assembly must be established first before the MB 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 MJ3 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.

Judgment of Ahmad Muarop JCA

Ahmad Maarop JCA arrived at the same conclusion as Raus Sharif JCA except that Ahmad Maarop JCA is more long-winded. At page 42 of his 76 page convoluted judgment Ahmad Maarop JCA said:

In conclusion, I hold that there is no mandatory and1or 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.

zambry perak state pc 130509 03Thus, 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 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".

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 'Crisis of Confidence and Perak's Constitutional Impasse' dated June 8, 2009 which is featured on the web portals Malaysian Insider and loyarburok.com:

.... 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 Azis of the High Court.

Conclusion

I trust we 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, knew 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.

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 MB still had the confidence of a majority.

And, I trust, all of you would agree with him.

Raus Sharif and Abmad 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 what they are.

The full text of the two judgments can be found on the Internet. If you, as a layman, find the judgments unintelligible then that is what the word gobbledygook 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.


NH CHAN is a former Court of Appeal judge famous for his 'All is not well in the House of Denmark' comment regarding judicial corruption. He was referring to the Kuala Lumpur High Court's commercial division located in Wisma Denmark. The quote is based on Shakespeare's 'Something is rotten in the state of Denmark'. He now lives in Ipoh.

Friday, June 26, 2009

Aulong rep Yew sues Perak Deputy Speaker Hee - Star

June 27, 2009 By CHRISTINA KOH

IPOH: Aulong assemblyman Yew Tian Hoe is suing Perak deputy speaker Hee Yit Foong for allegedly assaulting him in the face with pepper spray during the tumultous May 7 assembly sitting.

Yew's lawyer Leong Cheok Keng filed the papers at the High Court Registrar here at 11.15am Friday.

Yew, wearing a black T-shirt and a headband with the words 'Bubar Dun', was accompanied by Taiping MP Nga Kor Ming, Titi Serong assemblyman Dr Khalil Idham Lim Abdullah and other Pakatan Rakyat members.

According to the statement of claim, Yew alleged that Hee had attacked him by spraying a pepper spray canister into his face, particularly his left eye.

As a result, he suffered pain and injury, mental shock and trauma, loss of dignity, and consequently public shame, humiliation and mental distress.

The statement added that Hee was unrepentant and had refused or failed to apologise even though given the opportunity to do so.

"She had told lies to the mass media claiming that the device had been a hotel key chain or a pen drive, before admitting that the same was actually a pepper spray canister," it said.

Claiming that Hee's actions were motivated by malice, Yew is suing for an injunction to restrain Hee and her agents from further abuse or battery, damages, aggravated damages, exemplary damages, interest, costs and other relief.

Speaking to reporters, Yew called on Hee to step down as deputy State Assembly Speaker as she was unfit for the post.

He said he had proof, through DVD video footage, that Hee herself had been holding the pepper spray long before the incident.

"Before I entered the assembly hall, I was near here and I saw that she had it in her hand.

"To this day, sometimes I still have trouble seeing out of this eye," said Yew who urged Hee to take responsibility for her actions.

Nga, who is also Perak DAP chairman, said the suit should serve to send an important message that the sanctity of the assembly hall must be preserved.

Nga added that Yew had waited more than a month for Hee's apology.

Last month, Hee had told reporters that someone had flung the device at her during the confusion, and that she only held up the pepper spray towards Yew to demand if he had thrown it.

Yew, in turn, denied Friday that he had ever flung the device at her.

'Sultan was right not to dissolve Perak assembly' - Star

June 27, 2009

PUTRAJAYA: Sultan Azlan Shah was right in not dissolving the Perak State Legislative Assembly in February because it was barely one year old, Court of Appeal Judge Datuk Md Raus Sharif said.

In his 49-page judgement dated June 2 released Friday, Justice Raus said that in order for a dissolution of the assembly to take effect under Article 36(2) of the Perak State Constitution as requested by the then Mentri Besar Datuk Seri Mohammad Nizar Jamaluddin, the assembly must be in the conclusion of the five-year term when a general election was contemplated.

"It was well-known fact that the general election had been held barely one year ago," he said, adding that Nizar had applied the wrong provision when requesting for the dissolution of the assembly.

He said Article 36 of the Perak Constitution was only a general provision empowering the Sultan to prorogue or dissolve the assembly after the conclusion of the five-year term.

Nizar should have instead requested for dissolution of the assembly under Article 16(6) which states that if the mentri besar loses the confidence of the majority of the members of the assembly, then, unless at his request of the Sultan, dissolves the assembly, he shall tender the resignation of the Executive Council.

Raus also said that the question of Perak having two mentri besar did not arise because Article 16(6) demands that once the mentri besar was made to know that he had lost the confidence of the majority of the members of the assembly, he should take the honourable way out by tendering his resignation.

"If the mentri besar refuses or does not tender his resignation and the resignation of the Executive Council, as had happened in this case, the fact remains that the Executive Council is dissolved (which includes the mentri besar) on account of the mentri besar losing the confidence of the majority of the members of the legislative assembly," he said.

Therefore, it was unnecessary for the Sultan to remove Nizar and the other members of the Executive Council, he said.

He said Datuk Seri Dr Zambry Abdul Kadir's appointment as the mentri besar to succeed Nizar was made according to the Perak Constitution and established democratic practice and convention.

"The Sultan of Perak in exercise of his royal prerogative under Article 16(2) of the Perak State Constitution is at liberty to appoint another mentri besar to replace Nizar," he said.

Raus said the Sultan, however, must appoint someone who has the command and the confidence of the majority of the members of the assembly and in this case, there was no doubt that Zambry had the majority support of 31 members out of 59 members of the assembly.

"The circumstances in the present case clearly shows that on Feb 5, Nizar no longer had the confidence of the majority of members of the assembly. There were signed letters from 31 members pledging support to Barisan Nasional which were presented to the Sultan," he said.

He also said Article 16(6) did not express mandatory requirement that there must be a motion of no confidence passed by the assembly against a mentri besar before he ceases to command the confidence of the majority of the members.

"The fact that a mentri besar ceases to command the confidence of the majority of the members of the assembly can be established by other means. It cannot solely be confined to the vote taken in the assembly," he said.

Meanwhile, Justice Ahmad Maarop who presided over the case with with Raus and Datuk Zainun Ali said Nizar must tender his resignation once he lost the confidence of the majority of the members of the assembly and when Sultan refused his request to dissolve the assembly.

"His refusal to tender his resignation and the resignation of the Executive Council was not merely a breach of convention and undemocratic but more importantly, it contravened the clear mandatory constitutional command under Article 16(6) of the Perak Constitution and, therefore, unconstitutional.

"Thus, since he had ceased to command the confidence of the majority of the members of the assembly, it is implicit that on his refusal to tender the resignation, the Executive Council is thereby dissolved and the office of the menteri besar vacated."

Ahmad said he was also of the view that the Sultan's power to dismiss the mentri besar was implicit in the event the mentri besar refused to resign although he has ceased to command the confidence of the majority and the Sultan withholds his request to dissolve the assembly.

"In my judgment, the situation confronting His Royal Highness in the state of Perak was one such situation, and His Royal Highness had, in that critical situation rightly exercised his constitutional powers provided under the State Constitution, which exercise was without any doubt, solely for the best interest of the people of Perak," he said.

Datuk Zainun Ali's judgement is expected to be released on Monday.

The three Court of Appeal judges had on May 22 ruled that Zambry was the legitimate mentri besar of Perak, reversing an earlier High Court decision in Nizar's favour.

The Federal Court is to hear Nizar's application for leave to appeal on July 9 and 10.

Nizar, 52, was appointed Perak mentri besar on March 17 last year after the DAP-Parti Keadilan Rakyat-Pas alliance won 31 seats in the state assembly in 12th general election.

Less than a year later, they lost three members who declared themselves independent and lent support to Barisan Nasional that then had 28 seats in the assembly after a representative who had jumped ship earlier made an about turn.

Sultan Azlan Shah then asked Nizar to step down and swore in Zambry after finding that Barisan Nasional had the majority in the state assembly.

Following this, Nizar initiated the legal action to seek a declaration he is the rightful menteri besar and an injunction to bar Zambry from discharging his duties. - Bernama

Wednesday, June 24, 2009

Return to the ballot box in Perak and BN regains credibility, says Ambiga - Malaysian Insider

By Asrul Hadi Abdullah Sani

KUALA LUMPUR, June 24 — The former Bar Council president wants Barisan Nasional (BN) to let the people and not the courts decide on Perak's mentri besar.

“The answer is to go back to the people because the people will not be satisfied until they get their result and ultimately the power does belong to the people because once the people decides, everyone will accept it,” she said.

Datuk Ambiga Sreenevasan was speaking at a public lecture here last night organised by the Chevening Alumni of Malaysia.

Ambiga added that BN would be able to get back much need credibility if the ruling coalition would go to the polls and drop all charges against Datuk Seri Anwar Ibrahim.

“Do the right thing, just do the right thing and immediately people will say that they are quite reasonable but when you force these issues which people can read… we are not stupid, you cannot insult the intelligence of the people to understand what is really happening,” she said.

Ambiga stressed that BN would only be able to get the results it wants in the next general election if it gave the people what they wanted.

“You may lose a little bit this time but you would have gained a lot more,” she said.

During the question-and-answer session later, British High Commissioner Boyd McCleary agreed with Ambiga’s position on Perak and believed that the government should not oppose the will of the people in Perak.

“It looks to me as though over there, we have ended up with a situation where the government seems to have opposed the will of the people and that is wrong.

"The way forward for this government is to go back to the polls because even if they lose that battle they can still win the war by demonstrating that is the right way to go."

Friday, June 19, 2009

Cops tell DAP: Can eat, but cannot talk - Malaysiakini

S Pathmawathy | Jun 19, 09 6:29pm

Police reminded the Perak DAP that their 43rd annual celebration is a dinner gathering and not a ceramah.

Beruas MP Ngeh Koo Ham said yesterday that cops issued a permit for the party to hold its annual dinner on June 27, and only one speaker, party treasurer Leong Mee Meng, is allowed to speak.

V Sivakumar"We are allowed to eat but not allowed to talk," said Ngeh.

Six speakers are scheduled to address the gathering, including party advisor and Ipoh Timor MP Lim Kit Siang, at the Chiau Hooi Beo Temple Hall in Kuala Kangsar.

The others are Penang chief minister and DAP secretary-general Lim Guan Eng, Tronoh state assemblyperson and ousted speaker V Sivakumar, DAP MPs Nga Kor Ming, Liew Ching Tong and Chong Eng.

Kuala Kangsar district police chief Abdul Gaffar Muhamad, said the permit was issued under Section 27(2) of the Police Act.

Therefore, the gathering is also required to abide by the sub-sections of the Act, which states that they are not allowed to utter seditious statements as provided for under Section 3(1) of the Sedition Act.

"The cops are practising double-standards... if it was a BN function, there would be no such restriction on the number of speakers," said Ngeh (right).

Ngeh reiterated that said the police to act fairly towards all.

Motion in parliament to sack IGP


Meanwhile, Ngeh, is pushing for a motion in parliament to have IGP Musa Hassan sacked for the eroding public confidence in the force and failure of the police to uphold the institution.

Ngeh's motion which is No 34 on the Order Paper, also outlines the insubordination shown by the authorities to the instructions of ousted Perak assembly speaker V Sivakumar during the emergency assembly sesssion on March 3 and during the first sitting on May 7.

Other points that listed in the motion was the arrest made on activists and MPs present at the gathering in Perak.

Nizar appeals, seeks 11-member bench - Malaysiakini

Jun 19, 09 4:20pm

Mohammad Nizar Jamaluddin has filed his appeal against the Court of Appeal decision that his rival, BN’s Zambry Abd Kadir, is the legitimate Perak menteri besar.

In applying for the appeal in the Federal Court, the ousted menteri besar has sought a full bench of 11 top judges to hear his case.

His application has been set for hearing in the Federal Court on July 9 and 10.

Nizar arrived at the Palace of Justice in Putrajaya 3.05pm and was followed by his lawyer, Leong Cheok Keng, 10 minutes later.

The ousted MB has filed the appeal despite not being able to obtain the written judgment from the appellate court.

He said he was basing his appeal on the five-minute oral judgment delivered by the three-member Court of Appeal panel on May 22, almost a month ago.

More details at: www.malaysiakini.com

The gobbledegook of Augustine Paul FCJ in the Federal Court’s decision in Zambry v Sivakumar

By N.H. Chan

JUNE 17 – Most, if not all, laymen will find the written judgment of Augustine Paul FCJ – who eventually put in writing the judgment of the unanimous decision of the infamous five – most perplexing.

I am not surprised. I find it unintelligible also. In fact, it is what the word “gobbledegook” means in the English language – “unintelligible language”.

In case you have forgotten, I shall try to jolt your memory. The five were Alauddin bin Dato’ Mohd Sheriff PCA, Arifin Zakaria CJM, Nik Hashim Nik Ab Rahman, Augustine Paul and Zulkefli Ahmad Makinudddin FCJJ. Their story exploded on the front page of The Star newspaper of Friday, 17 April 2009.

It carried the startling and outrageous decision of the Federal Court. The headline proclaims “Court: Siva does not have right to suspend seven”.

The report reads:

PUTRAJAYA: The Federal Court has unanimously ruled that Perak Assembly Speaker V Sivakumar does not have the power to suspend Mentri Besar Datuk Zambry Abd Kadir and six state executive council members from attending the assembly.

It granted a declaration that the seven assemblymen were entitled to take part in all the assembly sittings and to carry out their duties.

Court of Appeal president Justice Alauddin Mohd Sheriff, who chaired a five-man panel yesterday, said the Speaker’s decision to suspend the seven applicants was ultra vires (outside the law) and invalid.

In an article which was posted on the Internet at the time, I wrote:

This is a perverse judgment of the Federal Court. It is perverse because it is a decision that was made in blatant defiance of Article 72(1) of the Federal Constitution which says, “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.

The judges of the Federal Court have failed the people and the government of this country when they chose to ignore the law of the Constitution of Malaysia. In other words, the judges have refused to do justice according to law.

Incidentally, ultra vires does not mean “outside the law”. It means “outside one’s jurisdiction, beyond the scope of one’s power or authority”.

And we may ask, who is the Federal Court to say what is beyond the jurisdiction of the Speaker when the supreme law of the country says that “the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”?

In case you don’t remember who Augustine Paul J (as he was then) is, it was he whose judgment for convicting Anwar Ibrahim of so-called corruption under s 2(1) of the Emergency (Essential Powers) Ordinance ran to 208 closely printed pages in the Malayan Law Journal.

The case was reported as Public Prosecutor v Anwar bin Ibrahim [1999] 2 MLJ 1.

That verbose judgment came to nothing. It was all about known law which any law student can find in the textbooks.

But he had earned for himself a place in infamy. This is what I have noted in my book, “How to Judge the Judges”, 2nd Edition, Sweet & Maxwell Asia, p 8:

It was not the judgment that was criticised (it could even be impeccable) but the way the trial was conducted which attracted so much adverse comment and disapproval from television broadcast abroad and from the international press.

The remarks and behaviour from the bench: like when the lawyers for the defence were threatened with contempt of court. In fact one of the defence lawyers was actually charged with the offence and, with the judge being difficult with the witnesses and counsel for the defence at almost every turn of the trial, gave the impression to the media and to those who were there that the judge was one-sided.

It does not matter that the judge thought he was not. As Lord Devlin observed, “The judge who gives the right judgment while appearing not to do so may be thrice blessed in heaven, but on earth he is no use at all.” (Patrick Devlin, The Judge, p 3).

Mr Justice Augustine Paul, like the infamous Judge Jeffreys before him, by the manner in which he had conducted the trial and his behaviour on the bench, brought ignominy and embarrassment to the reputation of the courts of this country.

The decision could be set aside for apparent bias: see Ex parte Pinochet Ugarit (No 2) [1999] 1 All ER 577 (HL(E)).

Augustine Paul FCJ – the judge who misses the point altogether

This time around, he did it with 64 pages, on A4 size paper, of gobbledegook.

This time, he did not sully his name with apparent bias. This time, he did something just as bad – he blatantly disregarded Article 72(1) of the Federal Constitution. He had refused to apply the constitutional provision as it stands. He gave a judgment which has missed the point altogether.

The late Lord Justice Salmon in an article titled “Some thoughts on the Traditions of the English Bar” (and I quote from the Perak Bar Bulletin, Vol. 1, No. 2, December 2004) gave this advice to budding lawyers:

But 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. Nothing is more irritating to a tribunal than the advocate who takes every point, possible and impossible. To do so is a very poor form of advocacy because the good points are apt to be swept away with the bad ones. Stick to what matters.

That was very sound advice to budding advocates from a very experienced judge. It seems to me to be very good advice also to judges who are not as competent as they should be.

The message of Lord Justice Salmon is clear – don’t bark at the wrong tree or don’t miss the point.

Although Paul FCJ dealt with many points – like any novice lawyer – in his written judgment, there is actually only one point that really matters for the Federal Court to decide on in the present case. Any advocate with some ability will be able to tell you that.

And that point is Article 72(1) of the Federal Constitution. It reads:

The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

All of us ordinary folk knew what the words in Article 72(1) mean. This constitutional provision is couched in simple English, without any ambiguity whatsoever, so that all of us sensible people could understand.

The words mean exactly what they say – no more, no less. No court, not even the Federal Court, can tell us the words mean something else.

But then we have the infamous five in the Federal Court who said that the words mean otherwise.

Now Paul FCJ, who was one of the five, in his written judgment tries to rationalise the ruling that they have made, which is that the speaker of the Legislative Assembly Sivakumar had acted ultra vires something or other – we are not told what exactly – Sivakumar had acted outside his power when he suspended Zambry and his band from the assembly.

However, his reasoning went askew because he missed the point entirely by citing the wrong cases, which did not support what he says.

In his written judgment Paul FCJ refers to Ah Thian v Government of Malaysia [1976] 2 MLJ 112, at 113 where Suffian LP said:

“The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of state legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.”

What Suffian LP says is that Parliament – that is, the legislature – is not supreme. The legislature cannot make any law which the supreme law does not allow.

In other words, although Parliament can make any law, that law must not be a law which is prohibited or is not sanctioned by the Constitution.

But how can this case be relevant to Article 72(1), which says: “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”?

Article 72(1) is a provision in the Constitution itself. It does not require the Constitution to sanction it. It is the Constitution itself. This case has no bearing whatsoever on the point in issue.

Next, he relies on Lim Kit Siang v Mahathir Mohamad [1987] 1 MLJ 383 where Salleh Abas LP said this, at 386:

“The courts are the final arbiter between the individual and the state and between individuals inter se, and in performing their constitutional role they must of necessity and strictly in accordance with the constitution and the law be the ultimate bulwark against unconstitutional legislation or excesses in administrative action.”

Salleh Abas LP was speaking of unconstitutional legislation and excesses in administrative action.

So, how can this be relevant to Article 72(1) which says that “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”?

What happens inside the assembly cannot be questioned in any court. But the law passed by the legislature itself or its enforcement can be questioned if it is shown to be unconstitutional or ambiguous.

A statute is unconstitutional if it is not sanctioned by the Constitution. If a statute or any of its provisions is capable of having more than one meaning, then it is the function of the court to interpret it.

In the case of an administrative action, the remedy of judicial review is available.

The next case which Paul FCJ relies on is Tun Mohamed Adnan Robert v Tun Mustapha [1987] 1 MLJ 471 where Abdul Hamid CJ said this, at 485:

“The mere fact that a litigant seeks the protection of a political right does not mean that it presents a political question. Whether a matter raises a political question; whether it has been committed by the Constitution to another branch of government is itself a matter of judicial determination because the Constitution has made the Courts the ultimate interpreter of the Constitution.”

What do you think of this remark? It seams like gobbledegook to me. All that gobbledegook just to say “the Constitution has made the Courts the ultimate interpreter of the Constitution.”

All of us reasonable people can understand the plain meaning of the words in Article 72(1). How can the court interpret the obvious meaning of the words in Article 72(1) where there is nothing to interpret at all?

“Interpret” means “explain the meaning of”. Only someone with the mentality of Humpty Dumpty would say a word means whatever Humpty Dumpty would want it to mean.

The words in Article 72(1) mean exactly what they say. Only Humpty Dumpty or his ilk will say that the words mean something else.

Paul FCJ also refers to Tan Chiaw Thong J in the High Court whose judgment according to Paul FCJ was approved in the case above, at 475:

The first authority is the case of Fan Yew Teng v Government of Malaysia [1976] 2 MLJ 262 and it was contended on that authority, that once a LA has dealt with a matter, in this case the matter of the appointment of the Chief Minister and who in that capacity commands the confidence of the majority of members, the Court should not interfere directly or indirectly, in the same matter.

With respect, as a proposition, this, in my view, is obviously too wide, as the authority of the LA must necessarily be confined to matters within its constitutional and legal powers and functions.

Actually, what this High Court judge was trying to say is that he did not agree with Fan Yew Teng, which was a decision of Chang Min Tat J in the High Court.

Now, let us take a look at Fan Yew Teng v Government of Malaysia [1976] 2 MLJ 262. It was a decision on the interpretation of Article 48 of the Federal Constitution. Fan was a member of Parliament who was convicted of sedition and was fined $2,000.

In his judgment, Chang J said at 263:

The conviction and fine imposed would appear to bring him within the scope of Article 48 of the Federal Constitution. This Article provides that -

“(1) Subject to the provisions of this Article, a person is disqualified for being a member of either House of Parliament if - (e) he has been convicted of an offence by a court of law in the Federation … and sentenced to imprisonment for a term of not less one year or to a fine of not less than two thousand dollars and has not received a free pardon.”

Fan applied to the High Court to declare that he has a constitutional right to exhaust his legal right of appeal up to the Privy Council and, if unsuccessful, to apply to the King for a free pardon before any question as to his disqualification can arise.

He succeeded before Chang Min Tat J who granted him the declaratory orders applied for.

But Tan Chiaw Thong J, according to Paul FCJ, disagreed.

So there you are. It was a case on the interpretation of Article 48 of the Federal Constitution.

The question is whether Fan had to be disqualified for membership of Parliament, or was he entitled to exhaust his remedy of appeal all the way to the Privy Council, even to the Agong for a free pardon, before he could be disqualified.

Again, this is not a case where Article 72(1) of the Federal Constitution is concerned.

After Paul FCJ has referred to the above Malaysian cases, he followed with two Indian cases – Indian Supreme Court in Cooper v Union of India AIR 1970 SC 1318, 1320 and Raja Ram Pal v The Hon. Speaker, Lok Sabha & Ors SCC 3 [2007] 184, para 57. He also included a South African case, The Speaker of the National Assembly v De Lille MP & Anor ZASCA 50.

None of these foreign cases have Article 72(1) or its equivalent in their countries’ Constitution. Therefore, all these cases are irrelevant to the application of Article 72(1) of the Federal Constitution.

Whether the speaker Sivakumar has the power to suspend Zambry and his band of six is not justiciable because Article 72(1) of our Federal Constitution says that the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

The suspension of Zambry and his band of six in the Legislative Assembly of Perak was a proceeding in the Legislative Assembly. And the Federal Constitution in Article 72(1) says that the validity of the proceeding in the assembly shall not be questioned in any court.

Who is Paul FCJ to question the peremptory decree of the Constitution, the supreme law of the land?

Yet, in spite of the constitutional decree of Article 72(1) of the Federal Constitution that no court shall question the validity of the proceeding in the Legislative Assembly of Perak, where speaker Sivakumar had rightly or wrongly suspended Zambry and his band of six, Paul FCJ has blatantly refused to apply the constitutional provision of Article 72(1) as it stands.

Defiantly, or pompously like Humpty Dumpty, he says:

“… Article 72(1) must be read as being subject to the existence of a power or jurisdiction, be it inherent or expressly provided for, to do whatever that has been done. The Court is empowered to ascertain whether a particular power that has been claimed has in fact been provided for.”

So what? Even if the speaker does not have the power to suspend Zambry and his band of six, Article 72(1) of the Federal Constitution has decreed that the validity of the proceeding in the Legislative Assembly in which the speaker had suspended Zambry and his band of six from attending it, shall not be questioned in any court.


Duty and function of a judge

The duty of a judge is to ensure a fair trial. After that, the only function of a judge is to administer justice according to law.

The infamous five, with Augustine Paul FCJ among them, have blatantly refused to administer justice according to law in that they have refused to apply Article 72(1) of the Federal Constitution as it stands.

Lord Denning in “What Next in the Law”, p 319 said:

Every law enacted by Parliament must be obeyed to the letter. No matter how unreasonable or unjust it may be, nevertheless, the judges have no option. They must apply the statute as it stands.

More so if the law is the Federal Constitution. The judges of the Federal Court have no option. They must apply Article 72(1) as it stands.

If they failed to do that, then they have failed to administer justice according to law.

By not administering justice according to law, the judges could have breached section 3(1)(d) of the Judges’ Code of Ethics 1994.

Section 2(2) of the Judges’ Code of Ethics 1994 provides:

(2) The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.

And section 3(1)(d) of the Code states:

3. (1) A judge shall not -(d) conduct himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto;

I think the words in of s 3(1)(d) of the Code are plain enough – we all know what they mean.

So that if a judge brings the Judiciary into disrepute or to bring discredit to it, as the infamous five Federal Court judges have done by not administering justice according to law, they could be removed from office under this provision of the Code.

MB vs MB: Nizar files appeal today - Malaysian Insider

KUALA LUMPUR, June 19 — Former Perak Mentri Besar Datuk Seri Nizar Jamaluddin will be filing his appeal to be lawfully reinstated to his post at the Federal Court registry in Putrajaya at 3pm today.

Picture courtesy of Malaysiakini

But he is troubled that his appeal will go smoothly.

“He’s supposed to appeal against the Court of Appeal showing that they erred but he has to to do it without their written grounds,” Leong Cheok Keng, a lawyer for Nizar, told The Malaysian Insider today.

Nizar has yet to receive the written judgment from the Court of Appeal this morning, the deadline for filing in the appeal.

The Court of Appeal last month overturned a High Court ruling declaring Nizar to be the rightful mentri besar of Perak.

The three-man panel of judges had promised to provide the grounds for dismissing his appeal within a week of their oral verdict — but failed to do so.

The written judgment, while not a must for Nizar's case to be forwarded to the Federal Court, would have provided the key reasons for the dismissal. Without it, Nizar's legal team is taking shots in the dark.

The legal team, headed by former Bar Council president Sulaiman Abdullah, maintains there are important constitutional questions that have not been answered, namely who had the right to sack Nizar as MB when he refused to resign?

The decision by the three Court of Appeal judges has effectively legitimised a Barisan Nasional (BN) coup in early February, putting the MB's seat in the hands of its Pangkor lawmaker Datuk Seri Zambry Abd Kadir.

Monday, June 15, 2009

Several Pakatan MPs ordered to leave Dewan Rakyat - Star

June 15, 2009 By LEE YUK PENG, ZULKIFLI ABD RAHMAN and LESTER KONG

KUALA LUMPUR : Datuk Seri Mohammad Nizar Jamaluddin (PAS) was kicked out of the Dewan Rakyat minutes after he took his oath as the new MP for Bukit Gantang.

Datuk Seri Mohammad Nizar Jamaluddin was kicked out of the Dewan Rakyat on Monday minutes after taking his oath as the new Bukit Gantang MP for putting on a black headgear bearing the words "Bubar DUN" (Dissolve State Assembly)

Speaker Tan Sri Pandikar Amin Mulia ordered him out as he was the person who started putting on black headgear bearing the words " bubar DUN" (Dissolve state assembly).

Several other opposition Pakatan Rakyats MPs followed suit by donning the headgear. Visitors at the public gallery, believed to be Nizar's supporters, also put on the headgear amidst shouts of "Bubar, bubar” while the Backbenchers shouted "Keluar, keluar ......"

Nizar, after his oath taking, put on the black headgear and shouted "Hidup rakyat, bubar dewan!" raising his left arm.

Pandikar ordered Nizar to remove his headgear. Nizar obliged but Datuk Ngeh Koo Ham (DAP - Beruas) and Nga Kor Ming (DAP - Taiping) who stood up and refused to remove their headgear, were ordered out by Pandikar. When both Ngeh and Nga left the House, Pandikar also ordered Nizar out as he had started it.

This was followed by Datuk Mahfuz Omar (PAS - Pokok Sena), N. Gobalakrishnan (PKR - Padang Serai) and Dr Dzulkefly Ahmad (PAS - Kuala Selangor ) leaving the dewan as well.

Shouts of “samseng, keluar” were heard amidst shouts of “bubar.”

“This is not a market place Please sit down, don't join him,” said Pandikar.

"This is how children argue in the streets. We have many issues to discuss for the rakyats' interests,'' he said.

The fracas took up 25 minutes before Prime Minister Datuk Seri Najib Tun Razak could stand up to answer Question 1 on 1Malaysia.

Tuesday, May 26, 2009

MB v MB: Court of Appeal has missed the point - Malaysiakini

NH Chan | May 26, 09 2:44pm

Before you go about judging the judges of the Court of Appeal on their five-minute oral decision which they handed down on Friday, May 22, 2009, please bear in mind the wise words of the most liberal of American judges, judge Learned Hand who once wrote ‘The Spirit of Liberty', p 110:

"... while it is proper that the people should find fault when the judges fail, it is only reasonable that they should recognise the difficulties. ... Let them be severely brought to book, when they go wrong, but by those who will take the trouble to understand."

I shall now try to help you take the trouble to understand the oral findings of the Court of Appeal.

First of all we will look at what the New Straits Times, on May 23, 2009 has to say:

"In allowing the appeal by Datuk Seri Zambry Abdul Kadir that he was constitutionally appointed as menteri besar by the sultan on Feb 6, Court of Appeal judge Datuk Md Raus Sharif said there was no clear provision in the state constitution that a vote of no confidence against Nizar must be taken in the assembly.

Raus, who sat with Datuk Zainun Ali and Datuk Ahmad Maarop to hear submissions on Thursday, said Nizar had on Feb 4 made a request to the sultan to dissolve the assembly under Article 16 (6) because he no longer enjoyed the support of the majority assemblymen.

He said Nizar had no choice but to resign once the ruler declined to dissolve the assembly.

"There is no mandatory or express requirement in the Perak Constitution for a vote of no confidence to be taken in the legislative assembly." Raus said in a five-minute oral ruling before a packed court room."

That was all. That is the gravamen of the five minute decision.

What the Court of Appeal has said above as reported in the New Straits Times had also been said by Mr Justice Abdul Aziz in the High Court in his well considered judgment - 78 pages on A4 paper.

This is what the High Court judge said, at p 30:

"It is not in dispute that His Royal Highness had exercised the royal prerogative in this case pursuant to Article XVI (2) (a) and (6) of the Perak's state constitution.

However the applicant (Nizar) is not asking the court to review His Royal Highness' prerogative to appoint the respondent (Zambry) as MB Perak or His Royal Highness' prerogative to withhold consent to dissolve the state legislative assembly.

The applicant concedes that the two royal prerogatives are not subject to review and non justiciable. That is the reason, the applicant (Nizar) said, His Royal Highness was not made a party to the present disputes."

And at pp 36, 37 Abdul Aziz J also said:

"Under Article XVI(2) of the Perak's state constitution His Royal Highness shall appoint as menteri besar a member of the state legislative assembly who in His Royal Highness' judgment is likely to command the confidence of the majority of the members of the state legislative assembly..."

How can the Court of Appeal overrule?

I never had any doubt that the exercise of the royal prerogative to appoint a menteri besar pursuant to Article XVI(2) Perak's state constitution is solely based on personal judgment of His Royal Highness and that His Royal Highness may resort to any means in order to satisfy himself and accordingly to form his judgment as to whom who is likely to command the confidence of the majority of the state legislative assembly that he can be appointed as the menteri besar to lead the executive council.

I also have no doubt that His Royal Highness has absolute discretion with regard to the appointment of a menteri besar and the withholding of consent to a request for the dissolution of the state legislative assembly.

This is plain and obvious from the reading of Article XVIII (1) and (2) (a) and (b) of Perak's state constitution.

The High Court judge even agreed, at p 37:

"... that if the menteri besar ceases to command the confidence of the majority of the members of the state legislative assembly, he shall tender the resignation of the executive council..."

So then, how could the Court of Appeal overrule the judgment of the High Court when the higher court substantially agrees with the judgment of the High Court?

The newspaper report is not very clear on this point as we are still unaware of the reason for overruling the judgment of the High Court judge.

However, according to the report in the New Straits Times, Raus JCA did say: "There is no mandatory or express requirement in the Perak constitution for a vote of no-confidence to be taken in the legislative assembly."

So what if there is no provision for a vote of no-confidence in the legislative assembly?

The High Court had found that Nizar is still the menteri besar. To overrule the decision of the High Court, the Court of Appeal must explain why the judge of the High Court was wrong in finding that Nizar is the menteri besar.

The newspaper had even suggested that it could be implied in the ruling of the Court of Appeal that the Ruler had sacked the incumbent menteri besar Nizar:

"The unanimous Court of Appeal ruling yesterday seems to suggest that a head of state can sack the incumbent head of government once it was determined that the politician ceased to command the confidence of a majority of the elected representatives."

Monarch has no such power

The newspaper is wrong. That was not the finding of the Court of Appeal. In any case the monarch has no power to dismiss a menteri besar - there is no provision for it in the Perak constitution.

The trial judge Abdul Aziz J in his judgment has explained why he found that Nizar is still the menteri besar.

This is how he puts it - see p 54 of his judgment:

"It is true the request may be made only under two provisions of Perak's state constitution i.e. Article XVI(6) and Article XXXVI (1) and (2).

"But the circumstances under which the request can be made are unlimited. The request under Article XVI(6) is specific to a situation where the menteri besar ceases to command the confidence of the majority in the state legislative assembly; whereas under Article XXXVI (1) and (2), [the] situation is unlimited.

"It is up to the menteri besar to choose his time to make the request. However once a request is made under whichever of the two provisions, it is entirely up to His Royal Highness' discretion whether to grant or [not to grant] the consent to dissolve the state legislative assembly."

Then at pp 56-58 the High Court judge comes to this conclusion:

"In my view it is alright if His Highness takes upon himself to determine who commands the confidence of the majority in the state legislative assembly that he can appoint as the menteri besar.

Such determination however is only good for the purpose of appointing a menteri besar pursuant to Article XVI(2)(a) Perak state constitution. This is so because that provision speaks of ‘who in his judgment is likely to command the confidence of the majority'.

The language used therein requires the exercise of a personal judgment on His Royal Highness.

But the same thing cannot be said with regard to Article XVI(6) in deciding whether the menteri besar ceases to command the confidence of the majority of the members of the legislative assembly.

In this case His Royal Highness, through his enquiries has judged that the respondent (Zambry) has the support of the majority. But that finding does not necessarily mean His Royal Highness can form an opinion that the applicant (Nizar) ceases to command the confidence of the majority of the members of the legislative assembly.

One reason for this is that the expression ‘in his judgment' is not used in Article XVI(6). ... I am of the view that just because His Royal Highness had formed a judgment that the respondent (Zambry) is likely to command the confidence of the majority for the purpose of Article XVI(2)(a) to appoint the respondent (Zambry) as menteri besar it does not mean that His Royal Highness' opinion or judgment is applicable in deciding that the applicant (Nizar) ceases to command the confidence of the majority of the members of the legislative assembly.

In another word, one cannot say that because His Royal Highness has judged that the respondent (Zambry) is likely to command the confidence of the majority in the legislative assembly therefore the applicant (Nizar) ceases to command the confidence of the majority of the members of the legislative assembly.

I would say that the personal opinion or judgment of His Royal Highness is irrelevant to the construction of Article XVI(6).

The [other] reason is that Article XVI(5) Perak state constitution states that the executive council shall be collectively responsible to the legislative assembly. Under Article XVI(2)(a) the menteri besar is appointed to preside over the executive council.

Article XVI(6) speaks of "If the menteri besar ceases to command the confidence of the majority of the members of the legislative assembly ...". Reading these three provisions in Article XVI Perak state constitution it is logical and in fact Article XVI(6) requires it to be so, that it is the legislative assembly that determines whether it has confidence in the menteri besar as the head of the executive council. The legislative assembly may make the determination through a vote of no confidence against the menteri besar."

The power is with state assembly

It seems to us ordinary folks that the Court of Appeal has missed the point.

They decided that Zambry was properly appointed menteri besar under Article XVI(6). That is not correct - he could only be appointed under Article XVI(2)(a).

Since there cannot be two menteris besar and Nizar the incumbent MB has not resigned and, further, since the legislative assembly did not decide if he has ceased to command the confidence of the majority of the members of the assembly, Nizar, unquestionably, is still the Perak MB.

Nizar's case was that Article XVI(6) speaks of "If the menteri besar ceases to command the confidence of the majority of the members of the legislative assembly".

The poser is who is to decide "If the menteri besar ceases to command the confidence of the majority of the members of the legislative assembly" under Article XVI(6)?

Certainly not the Ruler because the phrase "in his judgment" - which is used in Article XVI(2)(a) - is not used in Article XVI(6).

If it is not to be the Ruler then who is to decide "If the menteri besar ceases to command the confidence of the majority of the members of the legislative assembly"?

The answer is in Article XVI(6) itself - only the legislative assembly itself could decide if the menteri besar ceases to command the confidence of the majority of the members of the assembly.

Article XVI(6) clearly states that the menteri besar who no longer commands the confidence of the majority of the legislative assembly "shall tender the resignation of the executive council".

This has to be done "unless at his [the menteri besar's] request His Royal Highness dissolves the legislative assembly. But menteri besar Nizar could not admit that he ceases to command the confidence of the majority of the members of the legislative assembly because he would not know until a vote has been taken at the assembly to determine so.

Only the assembly itself would know if a vote is taken to determine whether the menteri besar has lost the confidence of the majority of the members of the assembly.

Salute to the High Court judge


Now that you have understood the five-minute decision of the Court of Appeal as well as the well considered judgment of the trial judge, you should be able to severely bring to book the judges of this Court of Appeal since you are now aware if they have done wrong.

Before I sign off, I wish to say a few nice words to the High Court judge.

Mr Justice Abul Aziz Abdul Rahim is a fantastic judge.

The judgment, especially the piece on the interpretation of Article XVI(6), is so good that it has persuaded me to change my mind on my view of Article XVI(6).

If you remember my first article, I have expressed an opinion on Article XVI(6).

Now I know I was wrong - and I have to thank Abdul Aziz J for showing me the way.

NH CHAN is a former Court of Appeal judge who now lives in Ipoh.