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.

Hunger strike in Perak: Report lodged against cops - Star

May 26, 2009

IPOH: Perak DAP chairman Ngeh Koo Ham has lodged a report against the police for alleged abuse of power.

He lodged the report at the Ipoh district police headquarters on Tuesday afternoon, not long after he was denied entry to see the Pakatan Rakyat assemblymen and supporters arrested earlier Tuesday.

The arrested Pakatan reps and supporters, who were taken to the state police headquarters, were also being denied the right to counsel, lawyer A. Sivanesan alleged.

Pakatan Rakyat assemblymen and MPs M. Kulasegaran (second from left), Jalong assemblyman Leong Mee Meng (third from left), Tronoh assemblyman N. Sivakumar (fourth from left) walking from Wisma DAP towards the Ipoh High Court before they were stopped and arrested by the police on Tuesday. - SAIFUL BAHRI/The Star

He said he was not allowed to pass on M. Kulasegaran’s medication to him in the lockup, adding that the Ipoh Barat Member of Parliament was suffering from fever and diarrhea.

The Perak political crisis continued unabated on Tuesday after police arrested an MP, at least eight assemblymen, the former state Speaker and five workers from an events management firm that was hired by Pakatan to organise a three-day hunger strike.

Ipoh Barat MP Kulasegaran, Malim Nawar assemblyman Keshvinder Singh and Tronoh assemblyman V. Sivakumar -- also the former State Assembly Speaker -- and his political secretary were arrested while walking from Wisma DAP here to the Ipoh High Court, where Pakatan-appointed Village Security and Development Committee (JKKK) heads were filing a suit against the Barisan Nasional state government.

At about the same time, Pakatan reps Thomas Su (Pasir Pinji), Chang Lih Kang (Teja), Lim Pek Har (Menglembu), Leong Mee Meng (Jalong), Chan Ming Kai (Simpang Pulai) and several others were arrested outside Wisma DAP for refusing to disperse.

The hunger strike was however allowed to proceed and began at 10:55am, aiming to press for a dissolution of the State Assembly and for fresh polls to be called.

The hunger strike, involving Pakatan assemblymen in Perak and being led by former Perak mentri besar Datuk Seri Nizar Jamaluddin and Sivakumar, will end at 8pm this Thursday.

The five events-management employees -- three of them reportedly Myanmars -- were arrested while setting up outside Wisma DAP here at about 7am on Tuesday.

More than 10 truckloads of police and members of the Federal Reserve Unit had set up camp as early as 6:30am around the DAP headquarters.

They are believed to have also confiscated some of the material, including a canopy, being set up by the events-management firm.

Police quick to end fast - Malaysian Insider

Police in control of fast site, as their personnel sit inside the tent intended for the fasters today. - Picture by Shannon Teoh

By Shannon Teoh

IPOH, May 26 — The police here “stopped” the planned Pakatan Rakyat (PR) hunger strike by arresting five workers and taking over the tent where the fast was to take place.

The light strike officers moved in at 7am arrested two locals and three Burmese workers from an event management company who were putting up the tent and a giant balloon — which was confiscated by the police.

They are now occupying the canopy to block PR from continuing with their fast which was meant to be part of a move to press for fresh state elections.

As at 9.30am, the riot police are still under the tent just outside the DAP headquarters here and having breakfast.

A total of 40 policemen, two jeeps, four police cars, two vans and seven trucks are in attendance but no PR leaders except for Ipoh Barat MP M. Kulasegaran have arrived.

Ousted mentri besar Datuk Seri Nizar Jamaluddin and dumped speaker V. Sivakumar are due to launch the event at 11am.

The balloon has also been confiscated by the authorities.

Sunday, May 24, 2009

Notes of decision in Zambry v Nizar Case (CoA) - The Malaysian Insider

By Edmund Bon

MAY 23 — These are the notes taken of the Court of Appeal’s Decision in the MB v MB matter delivered orally on 22.5.2009 by Raus Sharif JCA on behalf of the His Lordship, Zainun Ali JCA and Ahmad Maarop JCA.

Any mistakes herein are mine.

Firstly, we would like to thank counsel in assisting us to arrive at our decision. The decision is unanimous and these are our views:

1. The granting or withholding of consent to dissolve the State Assembly is a royal prerogative to be exercised by His Royal Highness (HRH).

2. From the facts of this case, the request made by the Respondent (Nizar) to dissolve the State Assembly was made under Article 16(6) of the Perak Constitution, and not under Article 36(2).

3. Under Article 16(6) of the Perak Constitution, upon the exercise of HRH’s royal prerogative to withhold consent for dissolution, the Respondent shall tender his resignation.

4. There is no mandatory, express requirement that provides for a motion of no-confidence to be passed in the State Assembly against the Respondent before he ceases to command the confidence of the majority.

5. The fact that the Respondent has ceased to command the confidence of the majority may be ascertained through extraneous means. We approve the case of Amir Kahar. The case of Stephen Kalong Ningkan, adopted by the learned Judge (High Court), is distinguishable on its facts.

6. HRH was right to make enquiries to satisfy himself whether the Respondent had ceased to command the confidence of the majority before deciding on the Respondent’s request for dissolution.

7. On the facts of the case, it is clear that the Respondent had ceased to command the confidence of the majority thus HRH, in accordance with Article 16(6), was right to appoint the Appellant (Zambry) as Mentri Besar of Perak after being satisfied that the Appellant commanded the confidence of the majority.

8. The learned Judge (High Court) erred in law when interpreting the Perak Constitution. He failed to properly appreciate the evidence rendering his decision clearly wrong.

9. The appeal is allowed. The orders of the High Court are set aside.

… [Exchange between counsel for Nizar and Zambry with the Bench on the issue of costs.]

No order as to cost.

… [Exchange between counsel for Nizar and Zambry with the Bench on ancillary matters:

Haji Sulaiman: My Lords and My Lady, I have been instructed to appeal the decision. Due to the urgency of the matter, I pray that Your Lordships and Ladyship supply us with the grounds of judgment as soon as possible.

Raus Sharif JCA: I have tried to prepare the full grounds last night but could not do so. Will supply in a week's time. What about the application to set aside the stay?

Haji Sulaiman: We leave it to the Court to decide.

Raus Sharif JCA: Isn't it academic already?

Haji Sulaiman: We are of the view that the Court of Appeal was wrong to grant the stay. To say that we concede is not entirely correct but it has served no purpose anymore. We therefore leave it to Your Lordships and Ladyship to decide. Alternatively, for a Court to to fix a hearing date.

Cecil Abraham: We seek that the application be dismissed.

Raus Sharif JCA: Enclosure 9(a) is dismissed.

Haji Sulaiman: My Lord, it should be struck out as it has not been heard on the merits.

Raus Sharif JCA: Yes. Application struck out.] — loyarburok.com

Saturday, May 23, 2009

Nizar to wait for written judgement -Star

May 23, 2009

BUKIT MERTAJAM: Datuk Seri Mohammad Nizar Jamaluddin will wait for the written judgement on the Court of Appeal's decision before filing his petition to the Federal Court.

He told reporters this when he turned up at the Youth Skills Development Institute here to give his support to PKR candidate for Penanti Mansor Othman.

The Court of Appeal has overturned on Friday an earlier High Court decision which had declared Nizar as the rightful Perak Mentri Besar.

It has stated instead that Datuk Seri Dr Zambry Abdul Kadir is the rightful Mentri Besar.

Nizar has vowed to file an appeal against the decision this Monday.

Friday, May 22, 2009

Where's MCA's B certificate? - Malaysiakini

Humayun Kabir | May 22, 09 4:12pm

A DAP state representative has called on the police to act against MCA members for showing the tumultuous May 7 Perak assembly sitting without a 'B' certificate from the Malaysian Film Censorship Board.

The DVD was shown during the MCA 60th anniversary state dinner in Ipoh on Sunday. Among those present were party president Ong Tee Keat.

DAP's Tebing Tinggi assemblyperson Ong Boon Piow said: "I was also told by the police to produce the B certificate for the video clip screening of the 'Assembly sitting under the tree' which was screened at the Chin Woo Hall on March 29."

"I was arrested at 10.30pm and released on police bail only at 1am the next day," he added.

Ong said it is absurd for the police to ask for the B certificate as an application must be submitted to the board stating the film cost, the name of the producer and the director before the certificate is issued.

"So, likewise the police must take similar action against MCA members for not producing the certificate during their screening of the assembly video clip last Sunday.

"Also the police must demand the B certificate for the 50,000 DVDs from (BN-MCA exco) Mah (Heng Soon) before allowing him to distribute the DVDs to the public.

"We cannot have two sets of rules, whereby one rule is applied on us where we are being persecuted and the other rule that allows MCA to go scot free," he added.

More details at: www.malaysiakini.com

Zambry is MB, rules court - The Malaysian Insider


PUTRAJAYA, May 22 — The Court of Appeal today returned a unanimous decision that Barisan Nasional’s Datuk Zambry Abd Kadir is the rightful Perak mentri besar, ruling that his Pakatan Rakyat rival Datuk Seri Mohammad Nizar Jamaluddinn had ceased to command the majority in the Perak state assembly.

The judges also ruled that the Sultan was right in appointing Zambry the MB and that there was no need for a vote of no confidence in the House against Nizar.

The three-member Bench comprising Justices Md Raus Shariff, Zainun Ali and Ahmad Maarop delivered judgment after hearing submissions from both parties yesterday.

However, the Court of Appeal decision is not expected to bring an end to the crisis in Perak as the parties can still appeal to the Federal Court.

This afternoon, security at the Court of Appeal was tight with police taking extra precautions in allowing people into the courtroom.

Nizar's counsel Sulaiman Abdullah said he would be filing an appeal.

Thursday, May 21, 2009

No laws exist to remove MBs, says Nizar's lawyers - The Malaysian Insider

By Neville Spykerman

PUTRAJAYA, May 21- Lawyers acting for Pakatan Rakyat (PR) Mentri Besar Mohammad Nizar Jamaluddin today told the Court of Appeal there were no laws to remove any heads of government in Malaysia.

Sulaiman Abdullah said that even if a mentri besar chooses not to resign after losing the support of fellow lawmakers there was noting that could be done.

He said following arguments by lawyers representing Barisan Nasional (BN) MB Datuk Zambry Abd Kadir and the Attorney General would lead to more absurdity.
He said it would mean the King could tell the prime minister that he should step own because he had lost the confidence of members of parliament.

The grounds against removal, he said, were laid out in the Sarawak case of Stephen Kalong Ningkan v the Government of Malaysia 1968.

"The state constitution confers no power on the Governor to dismiss or by any means to enforce the resignation of a chief minister, even when it has been demonstrated that he has lost the confidence of the majority."

In his argument he described the situation as a serious lacuna or a grey area, adding that the matter had never been addressed.

In that case, Stephen Kalong was reappointed as Chief Minister in Sarawak.

However the federal Government imposed emergency rule and amended the state constitution to remove him.

However the amendments during the emergency rule were allowed to lapse after his removal.

Similarly the Perak Constitution does not confer power to dismiss the mentri besar.

There is also no discretion to appoint two people as mentri besar.

Sulaiman said the issue of whether a mentri besar had the support of his fellow lawmakers is not for either the people or ruler to decide but for the "elected pool" in the legislature.

Sulaiman argued that a mentri besar does not hold office at the pleasure of the ruler although he has absolute discretion to decide who should be mentri besar after an election.

He added a mentri besar could at any time seek the dissolution of a legislature and did not have to wait for the end of a five year term.

Ranjit Singh, who also acted for the PR man, told the court that Nizar's state of mind when he met the Perak Sultan to ask for the assembly to be dissolved was of great importance.

During the meeting on Feb 4 Nizar told the ruler the assembly was "deadlocked" with both BN and PR having 28 assemblymen, following the resignation of three independents.

He said Nizar never told the Sultan that he had lost the majority as claimed by the State Legal Advisor and the dissolution was sought under Article 36(2) of the Perak constitution.

Article 32(2) is a general provision for dissolutions which was also written in a draft proclamation which the ruler refused to sign.

This counters arguments by Zambry's lawyers who say Nizar had sought the dissolution under Article 16(6) which provides that the mentri besar should resign if he has lost the majority in the legislature and if the ruler does not allow for fresh elections.

Nizar pledges fresh polls - The Malaysian Insider

May 21, 2009 By Edward Cheah and Lee Wei Lian

Pix courtesy of The Star

PUTRAJAYA, MAY 21 — Datuk Seri Nizar Jamaluddin says he will continue to push for fresh elections in Perak as the best way to solve the constitutional impasse regardless of tomorrow’s Court of Appeal decision over who should rightly be the mentri besar.

“I’m not going to rely on the court’s decision. It is only a legal process, the solution is to give the people the right to choose a new government,” Nizar told reporters outside the courtroom here today.

Nizar and other Pakatan Rakyat (PR) leaders attended today a Court of Appeal hearing on Datuk Zambry Abd Kadir’s appeal against last week’s high court decision ruling Nizar the rightful MB.

The constitutional crisis has dragged on since BN’s power grab in February.

There is growing support for fresh polls, even among BN leaders, for fresh polls as a way to resolve the conflict.

Prime Minister Datuk Seri Najib Razak has suggested BN were ready for talks with PR leaders to find a solution.

DAP Perak Chief Ngeh Koo Ham echoed Nizar and told The Malaysian Insider that the best way out of the political mess was to dissolve the state assembly.

“The court isn’t the place to solve the Perak crisis and whatever the outcome the crisis in Perak will drag on and whoever loses will appeal,” stressed Ngeh.

Ngeh went on to say that Pakatan Rakyat was more concerned with how to find a solution.

The Court of Appeal will give its decision tomorrow afternoon.

Perak MB crisis: Appeal Court to decide on Friday - Star

May 21, 2009 By LISA GOH and YENG AI CHUN

PUTRAJAYA: The Court of Appeal will deliver its ruling at 3:30pm Friday on Datuk Seri Dr Zambry Abd Kadir’s appeal against the High Court decision declaring Datuk Seri Mohd Mohammad Nizar Jamaluddin the rightful mentri besar of Perak.

The three-man panel - comprising Justices Datuk Ahmad Maarop, Datuk Md Raus Sharif and Zainun Ali - announced this after hearing submissions and rebuttals from both sides earlier Thursday.

Among the issues it will have to consider is whether a mentri besar can be removed from office without a vote of no-confidence in the State Legislative Assembly, and how far the Ruler’s discretionary powers stretch.

Earlier, Nizar’s lawyer Sulaiman Abdullah argued that the question of Nizar resigning as mentri besar of Perak cannot arise because there had not been a vote of no-confidence against his leadership in the Assembly.

“The only way a mentri besar can be removed from office is by such a vote on the floor of the Assembly,” he said.

A key argument on both sides was what transpired between Nizar and the Sultan of Perak, Sultan Azlan Shah, on Feb 4, on which day Nizar had sought -- but was not granted -- the Ruler’s consent to dissolve the Assembly to pave the way for fresh state elections.

Nizar waving to his supporters as he leaves the Court of Appeal after the hearing

Zambry’s lawyers had argued that this was tantamount to a loss of confidence in Nizar’s leadership, and therefore the Sultan had acted correctly in asking Nizar to step down as mentri besar.

“If His Royal Highness has the power to dismiss the mentri besar, it would come under Article 18 (of the State Constitution), but it does not. It does not come under any Article,” said Sulaiman, who began his submission at 2pm.

Article 18 covers the constitutional discretion of the Sultan, including the right to refuse a premature dissolution.

“If what they say is acceptable, then the Prime Minister can be woken up at 2am and be told that the Yang DiPertuan Agong has issued a statement that he has to resign because he has lost the confidence of the majority,” Sulaiman said.

“We are not challenging His Royal Highness’ prerogative, but it’s impossible to jump from there to say he has lost the confidence of the majority and has to resign,” he said, in urging the Appellate Court to no “disturb” the High Court’s ruling.

The Court of Appeal adjourned before it had time to hear Nizar’s application to set aside a stay of execution order granted to Zambry on the High Court’s decision on May 12. The order was handed down by Justice Ramly Ali.

Earlier, Dr Zambry’s lawyer Datuk Cecil Abraham said the High Court had made an “incomplete and inaccurate” ruling on May 11 when it declared Nizar the rightful mentri besar of Perak.

Abraham argued that High Court (Appellate and Special Powers) judge Justice Abdul Aziz Abdul Rahim had not taken into account “contemporaneous evidence.”

He also said that the Stephen Kalong Ningkan’s case, which was adopted by Justice Abdul Aziz, was wrongly decided upon because there had been no request for a dissolution of the state assembly.

Abraham argued that there was no deadlock in the Perak State Legislative Assembly on Feb 4 when Nizar had an audience with Sultan Azlan Shah.

He noted that on Feb 5, the Ruler met Prime Minister Datuk Seri Najib Tun Razak, Barisan Nasional assemblymen and the three independent reps whose resignation from their Pakatan member parties led to the state’s political impasse.

The three independents on that day pledged their loyalty to Barisan, which led the Sultan to determine the coalition had the majority in the 59-seat Assembly.

Abraham also argued that the Sultan can “extraneously, without a vote of no-confidence, ascertain the loss of majority.”

He reiterated the argument he made at the High Court ealier, that under Article 16(6) of the Perak Constitution, once the ruler refused Nizar’s request for dissolution, it was clear that “he shall tender the resignation of the Executive Council.”

“There is no express provision that a motion of no-confidence in the State Legislative Assembly is the only way to remove a mentri besar,” he said, adding that “there were other means, such as the interview by the Sultan.”

“Article 16(6) is clear and unambiguous that Nizar should tender his resignation, it doesn’t say he needs to go before an Assembly vote.”

In its ruling last Monday, the High Court had referred to Article 16(7) of the Perak Constitution, which “says that the mentri besar does not hold office at the pleasure of His Royal Highness.”

In his submission Attorney-General Tan Sri Abdul Gani Patail, acting as intervener in the case, said that under the law, the Perak State Assembly Speaker was only allowed to cast a vote to avoid equality in the House.

Discounting the Speaker, at that juncture, Pakatan had 27 votes and Barisan had 28 votes. “There was no deadlock and without a majority, there can be no dissolution,” he said.

“Why blame His Royal Highness as though he did something wrong? You came for a dissolution, but he had to do his duty according to the constitutional framework,” Abdul Gani submitted.

Justice Md Rauf Shariff said the court would only decide on whether Justice Abdul Aziz had intepreted the Perak Constitution rightly or wrongly.

“If he intepreted it correctly, we will dismiss the appeal. If not, we’ll accept the appeal,” he said.

Nizar and Zambry have been embroiled in a legal battle since February when Zambry was appointed mentri besar, with both claiming office to the state’s chief executive position.

On Feb 13, Nizar filed for a judicial review against Zambry’s appointment, seeking a declaration that he was the rightful Perak mentri besar “at all material times”, and an injunction to bar Zambry from carrying out the duties of the MB.

On May 11, the High Court ruled in favour of Nizar, declaring that his office had not been vacated, rendering Zambry’s appointment as null and void.

Justice Abdul Aziz said the Sultan could remove members of the Perak Executive Council from their office but not the mentri besar.

“Article 16(7) of the Perak Constitution says that the mentri besar does not hold office at the pleasure of His Royal Highness,” the judge said in his 78-page judgment that was made available to the press earlier this week.

Once a mentri besar is appointed, he is only answerable to the state legislative assembly, he said.

“I hold the view that a vote of no-confidence on the floor of the assembly is required to remove the mentri besar,” Justice Abdul Aziz said.

Following an application by Zambry, the Court of Appeal ruled on Tuesday that he remained the Perak mentri besar until his appeal against the High Court ruling was disposed of.

Ipoh rejects application to erect ‘democracy plaque’ - Star

May 21, 2009 By IVAN LOH

IPOH: The city council here has rejected an application by Perak DAP to erect a “democracy plaque” under the raintree in Taman Istana which hosted the so-called “under the tree” March 3 sitting of the Perak State Assembly.

Ipoh Mayor Datuk Roshidi Hashim said the place has had a string of “controversial incidents” that had jeopardised the peacefulness of the city.

He said he had received complaints from residents about disturbances in the area.

“This place has been used for unhealthy activities, like people using the tree to get four-digit lottery numbers,” Roshidi said after convening a special council meeting here Thursday.

“There have also been people who tried to exploit the tree for religious purposes,” he claimed.

He said upon considering all the factors concerned, it was best to snub the application to build the plaque.

Perak DAP had applied to erect a “democracy plaque” under the tree late last month when the old one was removed by the city council.

The plaque was built to commemorate the emergency meeting that was held under the tree on March 3.

Roshidi said there would always be certain quarters who wanted the plaque, while others would want to destroy it.

“Tension will arise when there are always two parties fighting over it,” he said, adding that disorder would reign if there were no stop to it.

“As Datuk Bandar (Mayor), I feel very sad over the matter and I only want peace in the city,” he said, adding that the tree was not the source of the problem, but the state’s political impasse was.

Barisan Nasional took over the state government after three assemblymen from Pakatan Rakyat quit their respective parties and pledged their support to the ruling coalition earlier this year.

The validity of the take-over is still being challenged in the courts in a series of suits and countersuits.

DAP protests ‘doctored’ BN DVDs - Malaysian Insider

By Melissa Loovi

KUALA LUMPUR, May 21 – Slamming Barisan Nasional (BN) for its attempt to “hoodwink” the people, Perak DAP chairman Datuk Ngeh Koo Ham said double standards are obviously being practised.

“When we showed the recording of the May 7 incident at a DAP dinner in Sitiawan, it was abruptly stopped by the police,” the Beruas MP said in a press statement.

“But MCA was free to show its distorted version of the incident at their dinner last Sunday in Ipoh.”

As another example, Ngeh cited the arrest of Tebing Tinggi assemblyman Ong Boon Piaw over the DVD of the infamous “tree assembly” produced by the DAP.

“When BN/MCA produced 50,000 DVDs with distorted versions of the May 7 incident, they are free to do so. Is there any more law in this land? Why the double standards?”

Ngeh, a senior lawyer, went on to chide the police and Home Minister Datuk Seri Hishammuddin Hussein for “clearly practising double standards to prevent the people from learning the truth.”

The former Perak exco leader is especially upset that all footage of Pakatan Rakyat (PR) Speaker V. Sivakumar being dragged out of the assembly was conveniently omitted from the 25-minute DVD.

Yesterday, BN-appointed Mentri Besar Datuk Zambry Abdul Kadir denied that his state government is backing the distribution of the 50,000 DVDs.

He added that Dr Mah Hang Soon, Perak MCA Youth chief, may have released the DVDs in his personal capacity.

This contradicts what Mah had said a day before that the Perak BN government has embarked on a DVD battle with PR. He even said that copies of the discs would be placed in BN component party offices or in the offices of state executive councillors.

NGOs want royal inquiry into impasse - Star

May 21, 2009

IPOH: Fifty-seven non-govern-men­tal organisations (NGOs) in Perak are calling for a royal inquiry into the political impasse in the state.

Group spokesman Dr Khairud­din Abd Malik said yesterday an inquiry would ensure once and for all that such an unfortunate in­­ci­­dent would not be repeated.

”The same thing happened in Te­­rengganu in the 1950s and Kelantan in the 1960s.

”Forty years on and it is still hap­pening, which goes to show that we have not learnt from the past,” he told a press conference.

Dr Khairuddin claimed that the political impasse started from a corruption and sex scandal involving PKR-turned independent as­­sembly­­men Mohd Osman Jailu (Changkat Jering) and Jamaluddin Mohd Radzi (Behrang).

He also alleged that former Prime Minister Tun Abdullah Ah­­mad Badawi had full knowledge that the two had switched allegiance at the time when they went “missing.”

“Anyone involved in crime must be judged, regardless of their status.

“The law must be executed fairly,” Dr Khairuddin said, adding that there were witnesses willing to testify in the inquiry should one be set up.

”A number of them are civil ser­vants who have full knowledge of what went on and we are not willing to jeopardise their safety un­­less there is an inquiry,” he added.

Wednesday, May 20, 2009

Nizar asks for dissolution - Star

May 20, 2009

IPOH: Datuk Seri Mohammad Nizar Jamaluddin has verbally conveyed his wish for a dissolution of the state assembly to the Perak royal family.

The former mentri besar said the Raja Muda of Perak, Raja Dr Nazrin Shah, had granted him an audience yesterday during an investiture ceremony held at Istana Iskandariah in Kuala Kangsar, about 45km from here.

“He said that as far as he was concerned, the royal institution was above politics and would not get involved in the squabble between Barisan (Nasional) and Pakatan (Rakyat),” said Nizar.

When the Kuala Lumpur High Court ruled last Monday that he was the rightful Mentri Besar, Nizar had immediately sent a letter to the palace, seeking for an audience with the Sultan for the purpose of dissolving the state assembly.

Nizar’s letter was however overtaken by events when his successor, Datuk Seri Dr Zambry Abd Kadir, managed to obtain a stay on the ruling.

The appeal against the High Court ruling and Nizar’s application to set aside the stay order will be heard tomorrow.

Tuesday, May 19, 2009

HJ NIZAR BERPELUANG MENGADAP TUANKU

May 19, 2009 By Misbahul Munir

YAB Dato' Seri Hj Nizar berpeluang mengadap Tuanku Raja Nazrin tengahari tadi di Istana Iskandariyyah selepas selesai Majlis Anugerah Pingat & Bintang. Demikian dinyatakan oleh Hj Nizar dalam taklimat ringkasnya di Mesyuarat Perhubungan PAS Perak tadi.

Dalam kesempatan yang singkat itu, digunakan oleh Hj Nizar bagi memohon maaf bagi pihak PR dan rakyat Perak sepanjang tiga bulan sebelum ini sekiranya apa sahaja insiden yang berlaku mengguris hati Tuanku.

Beliau juga bagi pihak PR mengucapkan takziah di atas kemangkatan Kekanda Tuanku Sultan Azlan Shah yang juga bapa saudara Raja Nazrin.

Kesempatan itu juga digunakan oleh Dato' Seri secara berterus terang dengan penuh berhimah memberi pandangan-pandangan terhadap senario dan kemelut politik di Perak. Dato' Seri merayu supaya Tuanku memberi penghormatan kepada rakyat untuk memilih semula kerajaan di negeri Perak, kerana melalui pembubaran DUN sahajalah kemelut ini akan berakhir.

Pakatan Rakyat akan menghormati pendirian dan keputusan rakyat yang samada memilih Pakatan Rakyat ataupun Barisan Nasional. Dato' Seri juga memberi pandangan supaya tidak ada sidang DUN diadakan dalam tempoh terdekat selagi kemelut politik ini belum berakhir, beliau memberi gambaran insiden sidang DUN 7 Mei yang lalu dibimbangi akan berulang semula sekiranya sidang DUN diadakan juga, dan ianya akan hanya memalukan imej Tuanku dan negeri Perak.

Sebelum ini beliau juga memberi pandangan kepada Sahibus Samahah Dato' Seri Mufti Perak tentang kemelut politik di Perak, beliau merayu supaya Dato' Mufti turut memainkan peranan dengan membantu agar penyelesaian kemelut politik melalui pembubaran DUN.

Pertemuan singkat antara YAB Dato' Seri Hj Nizar dengan DYTM Raja Nazrin merupakan pertemuan yang cukup berharga walaupun pertemuan tidak rasmi. Mesej rakyat yang mahukan DUN dibubarkan telah disampaikan oleh Hj Nizar. Kini, semuanya terserah kepada Tuanku, mesej rakyat telahpun disampaikan oleh Dato' Seri Hj Nizar. Diharap rakyat terus solat Hajat dan bermunajat mudah-mudahan dilembutkan hati Tuanku bagi memperkenan DUN Perak dibubarkan.

BN cenderung bubar DUN Perak? - Harakah

Abdul Aziz Mustafa
Tue | May 19, 09 | 12:09:19 pm MYT

KUALA LUMPUR, 19 Mei (Hrkh) Kata sepakat dalam Barisan Nasional (BN) memutuskan bahawa walaupun keputusan mahkamah rayuan Khamis ini memihak kepada parti itu, Sultan Perak akan tetap dipohon membubarkan Dewan Undangan Negeri (DUN) itu supaya pilihan raya semula dapat diadakan, laporkan Malaysian Insider semalam.

Jika laporan itu benar, Ketua Penerangan PAS, Haji Mahfuz Omar menyifatkan keputusan itu lebih baik dari tindakan melepaskan beban kepada Sultan Perak.

Sebelum ini, Perdana Menteri Datuk Seri Najib Tun Razak berkata, terserah kepada Sultan Perak Sultan Azlan Shah untuk memutuskan sama ada DUN Perak harus dibubarkan atau tidak.

"Jangan bebankan Sultan untuk menanggung kesan politik gangster yang menakut-nakut serta memperalatkan orang yang menghadapi tuduhan rasuah, menyekat Ahli Dewan Undangan Negeri (Adun) di tengah jalan kononnya kerana Raja Muda hendak berjumpa dan mengumpan rasuah.

"Jika benar Najib dan BN bersedia berhadapan dengan rakyat dan akan memohon Sultan membubarkan DUN, ia sepatutnya dilakukan lama dahulu dan bukan bertindak memburukkan lagi krisis politik di Perak," katanya.

Menurut Malaysian Insider, krisis Perak adalah agenda utama yang dibincangkan dalam mesyuarat BN semalam.

Parti itu takut menghadapi semakin meluasnya persepsi rakyat yang melihat BN sebagai pihak yang bertindak jahat dalam krisis itu.

Jika meluasnya persepsi itu tidak ditangani, BN akan kehilangan lebih banyak kredibiliti.

Beberapa pemimpin BN memberitahu Malaysian Insider tentang betapa berkesannya tindakan Pakatan Rakyat (PR) menggambarkan BN sebagai perampas kuasa.

Kesediaan BN untuk membubarkan DUN Perak itu dilihat bertujuan mengurangkan bencana yang bakal dihadapinya di mana besar kemungkinan parti itu akan ditolak terus oleh rakyat.

Bekas Perdana Menteri, Tun Dr Mahathir Mohamad menyarankan supaya BN mengemukakan undi tidak percaya terhadap Datuk Seri Mohammad Nizar Jamaluddin jika mempunyai suara majoriti dalam DUN Perak.

Beliau berpendapat, BN akan kalah jika DUN dibubarkan untuk memberi laluan bagi pilihan raya baru.

"Kalau nak buat pilihan raya, kita sudah tahu apa kesudahannya.

"Pakatan akan menang jadi mengapa kita nak adakan pilihan raya, tapi itu hanya pandangan saya. Saya tak buat apa-apa survey, undian. Ia hanya pandangan saya selepas melihat perkembangan di Bukit Gantang dan juga cakap-cakap dengan orang," katanya

Barisan to release videos of May 7 sitting - Star

By CLARA CHOOI

IPOH: The Perak Barisan Nasional government will soon release 50,000 DVDs of the tumultuous May 7 state assembly sitting to the public.

State executive councillor Datuk Dr Mah Hang Soon said that there were three versions of the edited videos -- one with a Mandarin voice-over, another in Bahasa Malaysia and a final, shorter clip called the “MTV” version, which comes complete with music.

“In the videos, the people will get to see who started the fight, who climbed on the table to shout, who threw the Standing Orders booklet, who banged on the tables with their fists, who started pushing others and even who was the one who broke several microphones in the hall,” he claimed.

On whether the video would include scenes of how former Speaker V. Sivakumar had been forcibly removed from his seat, Dr Mah said, “Well, actually we do not mind putting in that clip too. We want the public to see everything.”

He said the videos were merely condensed versions of the full seven-hour sitting, which was one of the nation’s most notorious assembly sessions to date.

“Within the next two or three days, we will get the copies printed and they will be made available to the public.

“The DVDs will probably be placed in our Barisan component party offices or in the offices of our state executive councillors in the State Secretariat,” he said at a press conference here Tuesday.

Dr Mah said that the idea to produce the DVDs was mooted after Pakatan Rakyat released “one-sided” clips of the sitting that “were not reflective of what had truly occurred” on May 7.

“They failed to show how it had been them (Pakatan) who had first crossed the hall to attack the Barisan.

“This is not fair to us because what the people need to see is exactly what had transpired on that day,” he said.

It is learnt that for the production of the DVD, the Barisan government had obtained footage from all TV stations that had covered the sitting, including the state-owned Perak News Online.

Crossovers motivated by personal gains - The Malaysian Insider

By Sudheesh Basi

MAY 19 — I refer to your letter “In defence of the rules of the game in Perak”. First of all let me congratulate you on a nicely written rebuttal to an article in the new media, an initiative which I hope more BN politicians would emulate. This well-thought out response is a welcome change from the ranting and raving of the mainstream media that many of us are used to, which does not add any substance to the debate at hand. So at the outset, well done.

However, I think an important matter was left out in your assessment. Why would three assembly men/woman crossover and support BN at the risk of intense ridicule from their constituencies and the media and possibly the death of their political careers apart from some kind of personal gain (whether monetary or assurance of safety from the corruption charges hanging over their head)?

Is it an ideological incompatibility as in the case of a shift from being Republican to a Democrat which led to the legislative crossovers? If so, there were no such indications given by the three individuals involved; instead a particular individual pointed out that she wasn’t treated well-enough and did not get a “Toyota Camry” like some of her colleagues. Which makes you wonder what exactly was offered to make her feel “well-treated”!

And one also wonders whether the receiving party ever question the kind of people they would want to be associated with the party. When a prime minister of a nation proudly stands and welcomes the support of two assemblymen who are facing corruption charges, it just hits you how badly stuck we are in a quagmire of corruption that it is deemed “ok” to form an association with two possibly corrupt individuals.

I think it will be tough for any one of us to put our hand to the chest and the other hand on the holy book and say that I believe fully and without any doubt that there was no money offered or personal deals struck in these crossovers which brought the Perak government down to its knees. And if that is the case, the issue is a much larger one. Of corruption and criminal behaviour, something which have become so endemic to our nation that it cannot and should not be endorsed any longer, whatever guise it might take.

As head of the Umno Youth wing, you have a moral obligation to stand up within the party and denounce all corruption and corrupt practices from the inside, so that change can happen from within. It is through a substantial change in the outlook of our younger generation of politicians that Malaysia can chart a new pathway towards a collective future.

“It was all Ganesan’s fault’

By: P Ramakrishnan
President
Aliran

19 May 2009

The claim by self-proclaimed Speaker of the Perak State Assembly, R Ganesan, that he had no choice but to summon the police into the House at the height of the ruckus during the May 7 sitting, is dubious and deceiving (Sunday Star 17 May 2009). There is no merit in his claim.

In the first instance, his entry into and his very presence in the Assembly is questionable. How on earth did Ganesan get into the Assembly? The Assembly building was out of bounds to all except the elected members of the Assembly.

There was a police cordon to prevent all the others from entering the Assembly. A 500 metre no-access zone was declared and anyone found anywhere near this perimeter were either chased away or were arrested when they resisted the police orders.

Even Perak Members of Parliament were denied access to the Assembly. Veteran MP Lim Kit Siang was refused entry into the building in spite of the fact that he had come with the invitation letter from the Speaker to attend the Assembly sitting.

Likewise, Kulasegaran and Dr Jeyakumar, both elected MPs from Perak were turned away. That’s how strict the police were. They stringently enforced this ruling of refusing permission to all and sundry.

Smuggled in?

So the natural question is: How did Ganesan gain entry into the building. Who authorized his presence in the Perak State Assembly? How did he by-pass the police security arrangement? How did he hood-wink the police? How come the police did not detect him? Was he smuggled in? Was he planted in the building the previous day?

Is it possible that the police were working hand in glove with illegitimate MB Zambry and BN Assemblymen and facilitated Ganesan’s presence in the building?

Ganesan had no business to be inside the Assembly. One can safely conclude that his appearance and continued presence in the Assembly prompted and provoked a situation which went beyond control.

Secondly, contrary to his claim that he had no choice but to call in the police, if indeed he was the Speaker of the Assembly as he claims, he could have adjourned the Assembly sitting, following which he and his cohorts could have left the Assembly.

This simple action would have prevented the Assembly from becoming chaotic and unruly. Since he did not do this, it can be rightly construed that he had contributed to the topsy-turvy situation.

The illegitimate MB and the Barisan Nasional Assemblypersons by smuggling in Ganesan had incited the unruly behaviour.

Illegally Elected?

Thirdly, the way Ganeson was ‘elected’ Speaker was also questionable. According to Speaker V Sivakumar, the Assembly had not been convened. In other words, the Assembly was not in session.

Sivakumar had stated that he would not convene the Assembly as long as those ordered out of the House were still inside. That was his stated position. That being the case, how was Ganesan elected when the Assembly was not in session?

Can a group of BN Assemblymen get together privately in one corner of the Assembly building when the Speaker was still occupying his chair and elect someone else? We have a situation when an outsider appears mysteriously in the building and he was elected Speaker when the Assembly had not officially convened.

This was not the only absurd situation we had on 7 May. On that day, we also seemed to have had two Speakers and two Menteris Besar at the same time in the same building!

The Standing Orders of the Assembly were thrown to the winds and the proper procedures that had to be followed were totally ignored. And that was the reason why things turned ugly, unruly and chaotic on May 7.

A BN-Police conspiracy?

Ganesan further contributed to the chaos by ordering the police to forcibly evict Sivakumar from the Assembly. What were the police doing inside the Assembly? Ganesan did not send someone to invite the police to do his bidding. They were already there waiting for his orders. Isn’t that very strange!

By calling on the police to drag out the duly elected Speaker from the Assembly, Ganesan had defiled and desecrated the sanctity of the Assembly. It is an unforgivable sin that he had committed that must be roundly condemned. We should never introduce thuggish behaviour into the legislative assembly where the rule of law should have been paramount and should have prevailed at all times.

What transpired as a result of Ganesan’s conduct raises many serious questions. Why did the police obey him? How did they know he was the new speaker? Was there an announcement that Sivakumar was ousted?

Or was this part of a pre-prepared and pre-rehearsed script? The way things fell into place would indicate that there was a scheme to capture the Perak state government, if necessary, by force. The plot was hatched studiously and implemented without a care for the rule of law.

This is a dangerous precedent and it should not be tolerated. It must be condemned in the strongest terms. There must be retribution for this outrageous behaviour.

Perakians will remember this shameful episode in their proud history and they will punish all those who frustrated the democratic will of the people.

Saturday, May 16, 2009

Najib improperly intefering with Court of Appeal hearing on Nizar vs Zambry case

May 16, 2009 By Lim Kit Siang

In his statement yesterday to reporters at the Coral Triangle Initiative Summit in Manado, Indonesia, Najib defended the power grab in Perak in early February, declaring that the Sultan of Perak had acted lawfully in appointing Datuk Zambry Abdul Kadir as the Perak Mentri Besar.

How could Najib as Prime Minister acted so improperly and irresponsibly when he should know that this is precisely the constitutional issue which is before the Court of Appeal on Thursday, as Kuala Lumpur High Court Justice Datuk Abdul Aziz Abdul Rahim had handed down a landmark constitutional judgment that the Sultan of Perak has the prerogative to appoint the Mentri Besar and but no constitutional power to dismiss the Mentri Besar?

The Kuala Lumpur High Court declared that Datuk Seri Mohamad Nizar Jamaluddin is the lawful and legal Perak Mentri Besar as he could only be removed by a no confidence motion in the Perak State Assembly, which was never done.

Why did Najib act in so improper and ill-advised a manner as his statement, though made outside the country, would be seen as an undisguised arm-twisting of the judiciary, when public confidence in the judiciary is already at such a low ebb?

Najib seems to be very desperate in having to act in such a manner, which is clearly improper, ill-advised and downright wrong.

Are the Court of Appeal judges who are going to hear Zambry’s appeal against the Abdul Aziz judgment in favour of Nizar prepared to publicly declare that they would not be influenced even one iota by Najib’s Manado statement – not only just professing it but to judge without any regard to the Prime Minister’s wishes and intentions?

Friday, May 15, 2009

Perak MB case: Zambry's appeal on May 21 - Malaysiakini

May 15, 09 5:17pm

The Court of Appeal will be hearing on May 21 Zambry Abd Kadir's appeal against the High Court decision in declaring his rival Mohammad Nizar Jamaluddin as the rightful Perak menteri besar.

Lawyers for Nizar told malaysiakini today that the appeal date has been informed to both parties.

However the panel of judges that will be hearing the case is still unknown.

Also on the same day, the Court of Appeal will be hearing an application by Nizar to set aside a stay order obtained by Zambry against the High Court ruling.

The Nizar application was originally slated to be heard next Monday but it will now be heard jointly with the Zambry appeal in Thursday.

More news at: www.malaysiakini.com

Now it’s Speaker vs Speaker - The Malaysian Insider

By Shannon Teoh

IPOH, May 15 — V. Sivakumar, the Pakatan Rakyat (PR) appointed speaker of the Perak state assembly, will file a suit at the Ipoh High Court at 11.30am today against Datuk R. Ganesan, who is Barisan Nasional’s (BN) choice for speaker, which could determine who legitimately holds office as head of the state’s legislature.

The latest legal challenge will add to the state of confusion which has crippled the administration of Perak since BN’s power grab in February, and places more pressure on all parties to agree to fresh polls as a way out of the quagmire.

The speaker’s position is crucial as he controls assembly proceedings and for BN, it could mean convening an assembly to pass a vote of no-confidence in Datuk Seri Nizar Jamaluddin, rendering the current court case over who is the legitimate mentri besar academic.

Perak DAP chief and Pakatan Rakyat’s (PR) legal coordinator for the Perak crisis, Datuk Ngeh Koo Ham, told The Malaysian Insider that Sivakumar will file a personal suit against Ganesan for bringing unauthorised persons into the May 7 assembly.

Sivakumar, in his suit, further alleges that these unauthorised persons manhandled him.

“It is a personal suit seeking damages for injury and embarrassment, as we do not recognise at all any claims by Ganesan that he is the speaker,” Ngeh said.

But while PR may argue that there is no doubt Sivakumar is still the speaker, Ganesan’s claim that he invited police officers into the assembly in his capacity as speaker ensures that this issue must be dealt with if the court allows it to be heard.

Ganesan had told reporters that he had already been properly appointed as assembly speaker when he asked Sivakumar to vacate the speaker’s chair and relocate to his Tronoh assembly seat.

According to Ganesan, when Sivakumar had ignored repeated warnings and then an order to leave the assembly, he ordered the sergeant-at-arms to execute his order but PR assemblymen blocked the way.

As such, Ganesan asked police officers whom he had invited as speaker, to aid in the removal of Sivakumar, which they did with physical force as Sivakumar refused to recognise Ganesan as the new speaker.

Judge Ramli's stay order puzzling, disturbing - Malaysiakini

Kim Quek | May 14, 09 5:31pm

An intriguing question arises as Court of Appeal judge Ramli Ali ordered (on May 12) a stay of execution on high court's declaratory judgment that Nizar Jamaluddin - not Zambry Abdul Kadir - is the lawful menteri besar of Perak.

In his judgment the day before (May 11), High Court Judge Aziz Rahim declares that Nizar had never ceased to be the menteri besar while Zambry Kadir had never been one.

So what does Ramli mean when he orders a stay of execution? Does he not mean to ask Nizar to cease to be menteri besar from now onwards until the case is finally settled at the higher courts? But that would mean stripping Nizar of a status that he has always enjoyed. Would that be fair to Nizar when the high court judgment has not been overturned by a higher court?

The litigation ahead is a long and tortuous road and may take years to reach its final conclusion at the highest court. Is it not a gross injustice to Nizar that he - a declared lawful menteri besar - has to stand aside so that Zambry - a declared pretender - can occupy the menteri besar's seat?

It is recognised that while the legal tussle is still ongoing, we need some one to act as menteri besar. Who is more qualified to act in that position - Nizar or Zambry? That depends on who enjoys a higher legal and moral standing for that purpose. After the Aziz judgment, it has to be Nizar.

This is the reason why Aziz had rejected Zambry's request for a stay of execution immediately after he delivered the judgment - to avoid aborting justice at this stage.

And what is the ground put up by Zambry for wanting the stay order? According to his lawyer Cecil Abraham, it is to stop Nizar from approaching the sultan for a dissolution of the state assembly for state-wide elections. His rationale is that, once an election is held, Zambry's appeal is rendered academic.

Now, let us examine this rationale. Assuming there is no order to stay execution, and as a result, Nizar succeeds in dissolving the assembly and an election is held, how would that do injustice to Zambry? Is Zambry saying that in an election, his party would be unfairly treated by our electoral system?

But that would be a ridiculous suggestion as our Election Commission has been overtly pro- Barisan Nasional and all the government institutions and the public media have always been heavily abused to favour BN in every election. Or is Zambry saying that he has a much stronger case in court?

But that would be a farfetched exertion as it is the considered legal opinion that the balance tips in Nizar's favour in fact and in law. This opinion is supported by Aziz's detailed and meticulous judgment that took him more than one hour to read out.

In fact, a fresh election for Perak is not only a fair solution where none would suffer injustice, but the only practical way out of the present state of near anarchy in the state, with both parties fighting tooth and nail (physically at times) to claim authority to rule, while a host of suits and counter-suits are pending in the higher courts, all which arose from the illegal power grab engineered by Prime Minister Najib Abdul Razak in early February.

That BN has been doggedly determined to avoid an election despite such compelling circumstances only reveals that it is a party working for only its self-interests. Its policy is anti- rakyat in that it is not only depriving the people of their right to choose their own government, but dooming them to suffer political and economic turmoil in the years ahead.

And the rash action by Ramli to grant Zambry the stay order in circumstances that draws consternation only worsens the image of the judiciary while further eroding confidence in the government.

Apart from wanting in rationale, the lightning speed with which Ramly had granted the order must have caught many people by surprise - receiving the application at 0930 hours, convening the hearing at 1130 hours and passing the judgment at 1300 hours, thus reversing Aziz's rejection of a stay order in only 21 hours.

What a superb performance by our courts known for their snail's pace (I recall that following Anwar Ibrahim's sodomy conviction in 2000, it took the court of appeal three years before it began hearing Anwar's appeal). But is it not a bit too hasty to reach a decision on an issue so important that it could have changed the course of history?

And on such an important issue, why did Ramli sit alone, bereft of the usual panel of judges of at least three in a court of appeal hearing? Such breaking of its own rules can only be justified in an emergency situation where the slightest delay in granting an order may result in irreparable injury to a party.

Has such a situation developed for Zambry? What injury could Zambry suffer if it takes several days instead of several hours for the court to reach a decision? Or did Ramly feel the same sense of urgency as expressed by lawyer Abraham that any delay in granting the order may precipitate a catastrophe for BN in the form of a state-wide election for Perak? But should the judiciary's conduct be dictated by such political maneuvering?

Thursday, May 14, 2009

Stay order does not make an MB - Malaysiakini

Syahredzan Johan | May 14, 09 5:32pm

We all know that after the decision on May 11 by the High Court that Mohd Nizar Jamaluddin is the legitimate menteri besar of Perak, Zambry Abdul Kadir on May 12 succeeded in obtaining a stay of execution order from the court of appeal pending the appeal proper.

I admit that the stay of execution order raises a lot questions and it can be confusing to a layperson. I will try my best to provide my opinions on the whole matter. The first question we must ask is this: what is an order for a stay of execution? An order for stay of execution is an order that the appealing party applies for to stop the successful party from executing or enforcing an order/judgement.

In normal circumstances, an order for stay of execution works thus:

Example 1:

A obtains judgement against B for RM1,000. B appeals against the judgement to a higher court.
While waiting for the appeal to be heard, B applies for a 'stay of execution' order. If the court grants the order, A cannot make B pay the RM1,000 until the appeal is disposed of.

Example 2:

C obtains order against D to seize his car. D appeals to a higher court, applies for a stay. If the court grants the order, C cannot seize D's car until appeal is heard.

However, a stay of execution does not overturn the lower court's decision. So using the examples above, the judgement A obtains against B and the order C obtains against D still stand. What the stay does is that it stops A and C from executing/enforcing the court's decision.

The decisions can only be overturned by the appeal proper. So what about the situation in Perak, now that Zambry has obtained a court order for stay of execution? One thing is for sure, the high court's decision still stands. It has not been overturned by the court of appeal, as the appeal proper has not been heard.

It is the ‘execution/enforcement' of that decision that is 'stayed'.

There is an old reported English case, Clifton Securities, Ltd. v Huntley and Others [1948] 2 All ER 283. The case concerned a piece of land which the plaintiff had leased to the defendants. The lease had expired but the defendants refused to move out of the premises. The case went to court and the plaintiff succeeded in obtaining judgement against the defendants for vacant possession and compensation.

The defendants appealed on the judgement and obtained a stay of execution pending the appeal. The plaintiff, however, cut off the gas, electricity and water to the premises in order to force the defendants out of the premises. The defendants claimed that the actions of the plaintiff were unlawful as they were entitled by the stay of execution to ‘remain in undisturbed possession of the premises'.

Justice Denning (as he then was) held that the defendants' claim was a ‘complete misconception to the effect of a stay'. According to him:

‘A stay of execution only prevents the plaintiff from putting forth the machinery of law - the legal processes of warrants of execution and so forth - in order to regain possession. It does not take away any other rights they have. It does not prevent their exercising any right or remedy which they have apart from the process of the court.'

Thus, a stay of execution only prevents the execution/enforcement of judgement or order and does not take away any other rights the successful party may have. It does not change the legal position as decided by the court previously.

Here's the difficult part; how do you stay the ‘execution/enforcement' of the Kuala Lumpur High Court's decision in the Perak case? It's not like in the examples I gave above.

The high court's order contained a ‘prayer' (legal lingo to refer to the things asked for by a party in the court pleadings) of an injunction to prevent Zambry from exercising any function purportedly as mentri besar.

With the stay order, it is clear that Nizar cannot enforce that injunction ie, he cannot stop Zambry from acting like the menteri besar.

As for the prayers for declaratory orders, especially the declaration that Nizar is the rightful menteri besar at all times, the effect of the stay is less clear, although some have argued that declaratory orders cannot be stayed.

It could mean that while Nizar is still the legitimate menteri besar (as the high court decision still stands), he may not be able to exercise his functions as a menteri besar. It could also mean that Nizar cannot assume the office of menteri besar for now.

But what I am very certain of is that the stay of execution order does not make Zambry the menteri besar. Remember, the high court's decision still stands.

This is not a situation whereby Zambry was a menteri besar for 3-4 months before Nizar was reinstated as menteri besar. The high court's decision basically meant that Zambry's ‘appointment' was illegal from the start.

So the question of Zambry ‘resuming' as menteri besar for now does not arise, regardless of how the mainstream media will try to spin it. I would say that in the eyes of the law, Zambry never assumed the post of menteri besar.

In the case of Clifton Securities Ltd. which I referred to earlier, the defendants' argument that they are entitled by the stay of execution to ‘remain in undisturbed possession of the premises' was rejected by Justice Denning (again, as he then was).

The defendants, who were trespassers onto the plaintiff's land did not all of a sudden have rights of undisturbed possession of the premises merely by obtaining the stay order. The defendants remained as trespassers until the appellate court ruled otherwise.

Similarly, just because Zambry had obtained a court order for a stay of execution, he does not suddenly become the menteri besar. He remains an illegal menteri besar until and unless the court of appeal rules otherwise.

So the most we can go with in interpreting the order for stay is that Perak does not have a menteri besar until the appeal is heard.

However, notwithstanding that Nizar may not be able to exercise his functions as menteri besar or he cannot assume the post of menteri besar for now, it is clear that Zambry has no legal basis to claim he is menteri besar.

He cannot simply waltz into the state secretariat and act like the mentri besar merely by virtue of having a court order.

Najib: Decision on the polls is up to the Sultan of Perak Sultan Azlan Shah

By Khoo Kay Peng

Pakatan wanted a dissolution of the state assembly and fresh polls be called. The civil society is encouraging it. UMNO's coalition partners are calling for the same. The people are desperate to end the current political crisis and get on with life.

Now, Najib said Barisan Nasional does not fear fresh elections in Perak and will face the people when the time comes but any decision on whether to hold the polls is up to the Sultan of Perak Sultan Azlan Shah.

So what is the honourable Sultan waiting for?

All parties are willing and ready. Just do it!

Dr M: Pakatan will win Perak snap polls - Malaysiakini

Andrew Ong | May 14, 09 12:54pm

Exhibiting his trademark wit, former premier Dr Mahathir Mohamad today proved that he is a true-blue Barisan Nasional leader as well as statesman who is in touch with the sentiments on the ground.

First, the 83-year-old former BN chieftain said there was no need to hold a fresh election in Perak in order to resolve the political impasse in the state.

But he quickly added that it was a ‘forgone conclusion' that Pakatan Rakyat would win if an election is held.

Instead of fresh polls, Mahathir said the right process now is for the state assembly to sit and move a motion of no-confidence against Nizar.

Mahathir also refused to share his opinions on whether Pakatan's V Sivakumar was legally removed as the state assembly speaker and replaced with BN's R Ganesan.

"I withhold my opinion, in deference to the courts," he said, despite this segment of the Perak dispute is not being brought to the courts.

More news at: www.malaysiakini.com

BREAKING NEWS: UMNO's Giving In. Will Call for By-Election in Perak - Malaysia Waves

May 14, 2009

This is an info i received from my source within UMNO. It seems that UMNO has decided to give in to mounting pressure calling them to dissolve the Perak Assembly and call for fresh elections. Announcement will be made within this week or next week, according to my source.

Apparently, UMNO realizes that the more that delay this issue, the bigger the negative effect it will have on UMNO and BN. The longer this crisis continues, the worst it gets for UMNO's national profile and intra-BN relations, according to my soruce.

My source elaborates that UMNO is reeling from internal pressure within Barisan Nasional in which component parties are calling for UMNO's head. This scandal will result in them losing more of what little left of their credibility with their electorate.

The Palace is also under tremendous amount of pressure and they too are losing credibility day by day. They too would like to see this issue resolved amicably. If this persists, they will not be respected by anyone in the state or outside. And all this because of UMNO's refusal to go back to the people.

International pressure is also slowly rising. Malaysia's good name is being smeared due to the 7th May incident. Openly, the government is seen as being disrespectful to rule of law, democracy and separation of powers. It's will effect us economically in the long run as investors do not want to invest in countries whose governments are not interested in rule of law.

UMNO also wants to stop the court process from continuing. As long as the battle continues in the courts, the credibility of our courts will also suffer.

So in order to save itself from being abandoned by their allies and prevent economic catastrophy in Malaysia and not to mention a total wipe-out in the next General Election, UMNO has decided to bite the bullet and call for by elections.

My source also say that UMNO is not confident of recapturing the state should the by-election be called. The most they say they can hold on to is 15 Malay seats. But it's better than losing the entire country to Pakatan Rakyat.

I hope my source is right as so far all of the Perak Revelations that Malaysiawaves have proven to be correct i.e. Malaysiawaves was the only blog that predicted the crossing over of a DAP rep when all attentions were concentrated on the 2 PKR reps.

Let's pray that Najib Tun Razak does the right thing.

TQ

Tulang Besi

Source: http://www.malaysiawaves.com/2009/05/breaking-news-umnos-giving-in-will-call.html

Wednesday, May 13, 2009

It’s contempt of court, says Ngeh - Star

May 13, 2009 By CLARA CHOOI

IPOH: Pakatan Rakyat has accused Datuk Seri Dr Zambry Abd Kadir of acting in contempt of court by resuming the duties of the Perak Mentri Besar.

Pix courtesy of Anil Netto

State DAP chief Datuk Ngeh Koo Ham said that until the Court of Appeal made its decision, neither Dr Zambry nor Datuk Seri Mohammad Nizar Jamaluddin could legally carry out any mentri besar duty.

The former senior executive council member added that by resuming his duties Tuesday, Dr Zambry had caused the nation to think that he had already won his appeal against Monday’s High Court ruling.

The Court of Appeal had on Tuesday granted Dr Zambry a stay of execution pending his appeal on the High Court’s ruling that Nizar was the rightful mentri besar “at all material times.”

Since then, Dr Zambry and his team of exco members had entered their offices at the State Secretariat, met for an exco meeting and held a press conference.

“This cannot be done because the stay of execution granted to Dr Zambry does not reverse the High Court ruling.

“The stay only asks Nizar not to exercise his right in order to give Dr Zambry a chance to let his case be heard at a higher court.

“Hence as it stands now, Nizar is the legal mentri besar and Dr Zambry is the illegal one but neither can exercise their mentri besar duties,” said Ngeh told The Star in a phone interview.

Ngeh also wondered at the Court of Appeal’s decision to grant the stay, saying that Section 54 of the Special Relief Act disallowed any injunction to be granted when it interfered with the public duties of a government.

Section 54(d) states: “An injunction cannot be granted to interfere with the public duties of any department of any Government in Malaysia, or with the sovereign acts of a foreign Government.”

“The stay is tantamount to a form of injunction,” argued Ngeh.

Ngeh said that since Dr Zambry could not carry out mentri besar duties, he did not have the right to lift the suspension of State Secretary Datuk Dr Abdul Rahman Hashim and State Legal Adviser Datuk Ahmad Kamal Md Shahid.

He also refuted Chief Secretary to the Government Tan Sri Mohd Sidek Hassan’s statement that the state government could not suspend the duo.

“The State Secretary and the State Legal Adviser are Federal Officers appointed by the Public Service Commission and the Judicial and Legal Service Commission respectively.

“However, when they are seconded to and employed by the state government, the state government has the authority over them as their employer.

“Therefore, they can be suspended from their duties pending formal complaints lodged against them with both the commissions,” he said.

Stay Order = No Decision Yet - Malaysiakini

By Lim Kit Siang

To prevent confusion among people as some of the newspapers have misleading headings and information, the fact of the case is that the Court of Appeal (CoA) is just a stay order. Actual decision has not been made.

The CoA decision is a temporary remedy to the KL High Court decision two days ago, which declared Nizar as the rightful menteri besar. It is not a reversal of that decision. The stay of execution merely delays the effect of that decision.

The truth remains that Nizar is the rightful menteri besar as decided by Justice Abdul Aziz, which deliberated in detail all the submissions from both sides. The CoA judge Ramly did not do that. Not yet. He only considered the special circumstances as submitted by Zambry lawyer for a stay order. An actual appeal process, which can take much longer, will deliberate in detail later.

In other words, as long as Zambry does not get a reversal of that High Court decision from any of the superior courts, i.e. CoA and Federal Court, he is found to be illegimate. But because he got the stay order, he will continue to go into the menteri besar office. In the mean time, Nizar, who was declared the rightful menteri besar, is still the rightful menteri besar of Perak, as long as that decision is not reversed.

Who is the legitimate MB of Perak now?

Is it Nizar?
Pix courtesy of The Star

Or is it Zambry?
Pix courtesy of The Malaysian Insider

Come on Najib, we Perakian do not need your 1Malaysia. We need 1Perak, Perakian First and Election now. Got it? Let Perakian decide what is best for them NOT the court.

Zambry resumes duty, but as what? - The Malaysian Insider

By Syed Jaymal Zahiid

IPOH, May 13 — Datuk Seri Zambry Abdul Kadir today refused to give a clear answer to the question of whether he is actually Perak's mentri besar, leaving confused Perakians stranded with more unanswered questions as the state comes nowhere close to solving its political crisis.

Zambry arrived at the state government building here at 9.16am in a black Toyota Harrier. He was greeted by sweaty reporters who had waited at the building's entrance under the blazing sun since 7am.

Just as he stated yesterday, the stay of execution granted by the Court of Appeal yesterday puts on hold the Kuala Lumpur High Court ruling that Datuk Seri Nizar Jamaluddin is the rightful MB and grants Zambry the right to resume duty.

But the question is, Zambry is to resume duty as what? The Bar Council yesterday interpreted the stay of execution as Zambry being merely the caretaker while his opposition counterparts claim Nizar is still the MB regardless of the stay of execution.

"You should not ask me that question. You should ask that question to the court," said Zambry, who seemed visibly annoyed by reporters' queries on the matter.

Zambry at the time had stepped out of his car to allow photographers to snap pictures of him entering the state government building.

It is learned that Zambry will be chairing “his” executive council meeting and will hold a press conference at noon.

Meanwhile, also seen entering the building earlier today was state legal advisor Datuk Ahmad Kamal Mohamad Shahid, who was among the two officials suspended by Nizar on the night he was declared the rightful MB again.

The state legal advisor and the state secretary Datuk Dr Abdul Rahman Hashim were key players in the events of the past three months, beginning with the Feb 5 putsch by Barisan Nasional (BN) which led to the current political imbroglio.

Zambry yesterday claimed the suspension on the two has been rendered invalid by the ruling made by the Court of Appeal.

Believe it or not. Footage of Sivakumar being dragged out of Perak Assembly - banned from Prima Media

Read the following posting in Malaysiakini today:

View the video clip captured by Malaysiakini here:


Footage of 'speaker dragged out' banned
May 13, 09 6:54am

The one enduring image of the controversial May 7 Perak assembly sitting was that of speaker V Sivakumar being physically removed from his chair and dragged out of the chamber to allow his rival, R Ganesan, to take over the proceedings.

A TV station has video footage of the dramatic moment but Malaysians did not get to see it on the orders of its owner, Media Prima.

Media Prima, which is believed to be linked to ruling party Umno, controls the country’s four free-to-air private TV stations - TV3, NTV7, TV8 and TV9.

According to a source who requested anonymity, the staff were given ‘directives’ from senior managers on the evening of May 7 not to screen the controversial footage despite one of its stations had captured the whole incident on tape.

More news at www.malaysiakini.com

Tuesday, May 12, 2009

Pakatan MB, excos vacate office - Malaysiakini

May 12, 09 2:47pm

Pix courtesy of Malaysian Insider

Pakatan Rakyat Menteri Besar Mohammad Nizar Jamaluddin and his executive councillors vacated their office this afternoon.

Saying they respect the Court of Appeal's decision, the MB and his excos left the state secretariat building in Ipoh at about 2.30pm, some seven hours after taking over the reins of administration again.

Pakatan lawyer Chan Kok Keong said they are waiting for the sultan's reply to Nizar’s request for dissolution of the state assembly.

He pointed out that the request was made before the Court of Appeal delivered the stay order this afternoon.

"It (the request) was delivered early this morning and we are still hopeful that we will not be a disappointed for a second time.

"Regardless of whether any menteri besar has requested for a dissolution, the state constitution provides that the sultan has the discretion to dissolve the assembly without advice," he said in a statement.

"Therefore, by comparison, (Barisan Nasional's) Zambry's (Abd Kadir) claim to be the lawful MB is weaker than Nizar. At best, there are two menteris besar.

"At worst, Zambry is an imposter whose claim to hold on to power has neither legal basis nor authority," he added.

According to Chan, Nizar's position is morally and legally better than Zambry's.

Although a stay order was granted, he said, at least Nizar has a court declaration whereas Zambry has none.

"The judgment has only been stayed, not set aside. The moral victory is still ours although the legal victory has been paralysed by the stay order.

"What took weeks to prepare and after painstaking efforts of arguing the finer points, the (Kuala Lumpur High Court) judge delivered his judgment. In less than half a morning, the legal effect of that judgment was suspended by a single judge of the Court of Appeal," he said.

"We believe that the weight of authority of (high court judge) Abdul Aziz Abdul Rahim’s judgment must be greater than the order of the Court of Appeal," he added.

More news at: www.malaysiakini.com