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.