Thursday, 28 May 2009

Perak Crisis: BN Lawyer HAFARIZAM Given a Short Lesson 101 on Constitutional Law

Read here for more on ARTiculation Blog

NOT Clever Enough

Barisan Nasional's Lawyer in the
Perak Crisis

The Perak Crisis: Lawyer Art Harun's Rebuttal on Lord Lester's Opinion Quoted by BN Lawyer Hafarizam


Art Harun, Lawyer
NOTE: PM Najib had openly admitted that the BN had been advised by Lord Lester QC


"To adopt a literal approach would vest a certain level of absolute power in the Ruler where such power does not exist in the first place. Can we imagine a situation where the Ruler may decide mid-term to change an MB because he thinks that MB does not command the confidence of the majority anymore?

Lets not allow our emotion to colour our judgement by creating, or allowing to create, a dangerous precedent, a precedent which we all may live to regret later"

-Art Harun, 25 March 2008. Read here for more and here

What I said above (on 25 March 2008) has now become true.

His Royal Highness the Sultan of Perak had decided in mid-term to change the MB because HRH thinks that the previously appointed MB did not command the confidence of the majority anymore.

The above comment was posted on March 25th LAST year, when the whole nation was discussing the crisis in Terengganu and Perlis, where the Rulers in both states had refused to agree to appoint the candidate nominated by the leadership of the winning party as the Menteri Besar.

There was a populist school of thought then that the Rulers were well within their power to do so.I took a different stand.

I had always thought that the notion of "absolute power" rested in the Rulers is MISCONCEIVED.

Hafarizam Harun's Article

My learned friend, Hafarizam, is one of the Counsels for the BN in the Perak crisis. After the decision of the Court of Appeal reversing the High Court's decision on the Nizar v Zambry case, he publishes his takes on the issue on his blog.

As he was one of the lead Counsels in the case, and considering the fact that the PM had openly admitted that the BN had been advised by Lord Lester QC, I would presume that Hafarizam's position on the issue echoes that of Lord Lester's.
  1. Hafarizam's First point - the Practice in "other Commonwealth countries"

    I am reproducing verbatim the relevant part of what was said by Hafarizam:
    "Today's decision by the Court of Appeal is another high-watermark case on Constitutional law in Malaysia. It not only proves the point that I have been trying to make all along, but has placed Malaysian Constitutional jurisprudence at par with other Commonwealth countries, to wit a few, Australia, Canada and England itself, that the constitutional logic of the Constitution of Perak and the democratic imperative upon which the Constitution of Perak is based on the following thesis...

    The powers to grant a dissolution of Dewan Negeri Perak and to appoint the Mentri Besar and State Executive Council members are among the prerogatives of HRH the Sultan of Perak. Consensus amongst parliamentarians and commentators is that there are instances in which the Monarch may refuse to grant a dissolution, especially to a minority government.

    For example, minority Labour Government of Ramsay McDonald requested for a dissolution, Herbert Asquith (Prime Minister between 1908 and 1916) stated in The Times for 19 december 1923, which was quoted with approval in Marshall, Constitutional Conventions (1986), at 38: "The Crown is not bound to take the advice of a particular minister to put its subjects to tumult an dturmoil of a series of general elections so long as it can find other ministers who are prepared to give it a trial. The notion that a Minister - a Minister who cannot command a majority on the House of Commons - is invested with the right to demand a dissolution is as subversive of constitutional usage as it would, in my opinion, be pernicious to the general and paramount interests of the nation at large."

    In Canada, Governor General, Lord Byng, in 1926 refused to grant a dissolution to Prime Minister King after the latter's government had lost the support of members of other parties who provided its majority. There was no vote of confidence, but Prime Minsiter King imemdiately resigned. Mr Meighen, the opposition leader was invited form a government (see Hogg, Constitutional Law of Canada, 5th ed, at 9-30).

    Thus, the lauds and cries for 'Bubar Dewan' by fellow opposition members of 'Pakatan Pembangkang' are not only pernicious but has created deep division amongst the people of Perak.

    In hindsight, if YB Dato' Seri Ir Nizar has conceeded defeat on 4th February 2009, the people of Perak would not have to pay the heavy price of confusion, humilation and frustration the culmination of all was the the 7th May 2009 sitting."
  2. It is ironic that Hafarizam had referred to the (a) Ramsay McDonald affair and (b) the "King-Byng" crisis because these two instances ACTUALLY SUPPORT MY POSTULATION that:
    "The practice in the Commonwealth is that the Ruler had ALWAYS dissolved upon being requested and the Ruler had no absolute power to ask the Premier to resign."
    (Although) in the King-Byng crisis, the Governor General, Lord Byng had refused to dissolve upon King's request, (but) there were extenuating and special circumstances in that case. I will touch on this later in this post.

  3. Hafarizam's Misconception in the Ramsay McDonald Affair

    Hafarizam says (in his blog):
    "....the Monarch may REFUSE to grant a dissolution, especially to a MINORITY government..."
    (But) the Nizar-led Government in Perak is not a "minority Government". It is a COALITION Government.

    There is quite an obvious DIFFERENCE there.

    Difference Between Minority Govt and Coalition Government

    A minority Government is a Government consisting of a party with the single largest number of seats in the Assembly but that party's seats are less than the total seats held collectively by other parties in the Assembly.

    For instance, if DAP has 60 seats, while PKR has 30 seats and the BN has 40 seats, a DAP government would be a minority government because its seats are less than the total seats held by PKR and the BN.

    In Perak, the situation is NOT such.

    There, PAS, DAP and PKR formed a coalition and the total number of seats in their coalition was higher than the seats held by the BN. Thus, it is a coalition government.

    Hafarizam Was Wrong in Quoting Herbert Asquith

    Herbert Asquith could NOT have made the statement on 19th December 1923 in relation to Ramsay McDonald's request for a dissolution as quoted by Hafarizam because at that time, Ramsay McDonald wasn't even the Prime Minister yet!

    The whole affair must be told in sufficient detail if we were to use this affair as a precedent.

    The Facts on the Ramsey McDonald Case

    McDonald became PM in 1924 when he formed a minority (Labour) Government. As the Conservative had more seats, McDonald's Labour Party had to rely on the support of the Liberal Party.

    Motions for censure were initiated (McDonald). McDonald quickly resigned when the motions were amended to be one of no confidence. However, the day after the amendment, he asked for dissolution from the King.

    And what did the King do? The King DISSOLVED the Parliament and called for a fresh election. The Conservative won in the ensuing election and they formed a Government.

    (After) May 1929 election, McDonald again formed a minority Government as Labour only had 288 seats to the Conservatives' 260, with 59 to the Liberals. Again, he had to depend on the Liberals.

    To cut a long story short, his second minority Government did not last as well. During the Great Depression, his Government did not have any answer to the economics problem. His own cabinet was even split on the issue of public expenditure.

    McDonald then submitted his resignation.

    The King however persuaded him to form a "National Government" (something akin to the much talked about "Unity Government" which was being proposed by PAS recently).

    Note however that at this time, McDonald had submitted his resignation. He however did NOT ask for dissolution.

    The King, at his own initiative, persuaded McDonald to form a National Government.

    McDonald accepted that suggestion and formed a National Government, which was actually a coalition between all the parties in the Parliament. This was viewed as a betrayal by his own Labour party. He even sacked some of his senior ministers from the Labour Party.

    Needless to say, in 1931, the Conservative forced him to agree to a general election.

    Ramsey McDonald Case Does NOT Support Hafarizam's Position

    How does the Ramsay McDonald affair support Hafarizam's position?

    If at all, it supports :

    • my position that the Ruler (or in the UK then , the King) would dissolve the Parliament upon being requested.

    • my contention that the Ruler did not have the power to sack the Premier. Never at any time, the King asked for McDonald's resignation although it was crystal clear that McDonald did not command the confidence of the majority on two occasions.

  4. The King-Byng Crisis -Canadian Constitutional Crisis

    This episode involved Prime Minister MacKenzie King and the then Governor General, Lord Byng.

    In September 1925, (Prime Minister) King requested a dissolution. (Governor General) Byng granted it.

    (Following dissolution and after)the general election, Arthur Meighen's Conservative Party won 115 seats to 100 for King's Liberals while the Progressive Party had 22 seats.

    As the incumbent PM, King did NOT resign.

    He went to see (Governor General) Byng and told Byng that he wanted to form a minority Government with the support of the Progressive Party.

    (The next thing which happened is very important and to my mind explained why Byng had later refused to dissolve the Parliament upon being requested.) During that meeting, Byng had actually expressed his thoughts that perhaps King should resign and let Meighen form a government as his party had the majority seats.

    In Byng of Vimy (by Williams, at page 305), Byng was quoted to have said to King that he (King) ought not to ask for dissolution in the future unless Meighen was first given a chance to govern. King apparently tacitly agreed to this. King then went ahead to form a minority Government.

    His Government then was involved in a corruption scandal.

    The Progressive party's support (to King's Government) was dwindling. King's Government then lost 2 motions in the Parliament and was about to face another confidence motion.

    Against what was agreed previously, Prime Minister King asked for a DISSOLUTION. (Governor General Byng) REFUSED it.

    King presented an order-in-Council seeking a dissolution. Byng still refused dissolution.

    King then resigned.

    Byng appointed Meighen as PM and asked him to form a government, which he did.

    Governor General Byng was Criticised for Refusal to Dissolve Parliament

    Whatever was the motivation of Byng, he was heavily criticised for his refusal to dissolve. SA de Smith in his book, Constitutional and Administrative Law at page 106 viewed Byng was as being in an "embarrassing" situation. In fact, Byng's position became even more embarrassing when Meighan's Government only lasted for less than a week. Within a week of its formation, Meighan lost a vote of no confidence by one vote. Meighan quickly asked for a dissolution which Byng duly granted.

    de Smith argued in his book at the same page that the fact that Byng granted dissolution to Meighan while refusing King's request for one would open Byng to allegations of bi-partisanship. That would taint the office of the Governor General, which was supposed to be above politics, especially partisan politics.

    In a speech in 1997, the Governor General of New Zealand, Sir Michael Hardie Boys expressed the opinion that Byng had been in error in not re-appointing King as prime minister on the defeat of Meighen in the vote of confidence.

    Byng and Meighan were humiliated during the ensuing general election. King went to town to critisise Byng's initial refusal to dissolve. The result of all that was a victory with a clear majority for King, who was seen by the voters as a victim of Byng's indiscretion. Meighan was seen by the voters as the villain and he even lost his seat.

    Central to Byng's refusal to dissolve at King's request was also the tacit agreement that both of them had when King had insisted that he should continue to be the PM even though Meighan was clearly the majority holder in the Parliament earlier.
The King-Byng Crisis NOT Relevant to Perak's Case

This, needless for me to point out, was not the case in Perak.

HRH the Sultan had appointed Nizar as the MB of a coalition Government with a majority.

As far as information which are in the public domain is concerned, there was NO understanding between the Sultan and Nizar that:
  • Nizar ought not to ask for a dissolution and

  • in the event Nizar lost the confidence, Zambry ought to have been given a chance like Meighan. (In the Canadian case) King was losing support from the Progresive Party, an integral part of his minority Government.

  • Nizar did NOT lose any support from within his coalition, except for the 3 who had jumped ship.

  • There was also, at the point in time where dissolution was requested by Nizar, uncertainty over the position of the 3 "independent ADUNs" and their case were in Courts waiting for adjudication. Thus, even the loss of confidence was in doubt.
Contrast this to the clear and certain loss of confidence on King's Government when the dissolution was requested by him.

If we superimpose the scenario in the Byng-King affair and the Perak affair now, and considering the underlying disbelief by the people of Perak at what is currently happening, would it be too far fetched for me to conclude that the BN would be defeated badly if an election is called now?

I would even venture to ask whether Zambry would be able to hang on to his seat in that event. Meighan and the Conservative party of course found out the hard way in the ensuing election.

With all due respect, Hafarizam's reliance on the Byng-King crisis appears to be misplaced. It is clear that Byng was driven by a tacit understanding between him and King in not granting dissolution. However, history proved beyond doubt that what he (Byng) did was not in accordance with Constitutional spirit.

History also, I am afraid, will judge HRH's refusal to dissolve the Assembly.

The Discretion of the Sultan

On the power to refuse dissolution, Hafarizam said:
"The powers to grant a dissolution of Dewan Negeri Perak and to appoint the Mentri Besar and State Executive Council members are among the prerogatives of HRH the Sultan of Perak.

Consensus amongst parliamentarians and commentators is that there are instances in which the Monarch may refuse to grant a dissolution, especially to a minority government."
Hafarizam then went on to quote the McDonald and Byng-King affairs as examples.

I have shown above that the two incidences do in fact support my position that refusal of dissolution was uncalled for in the circumstances. I have also explained above that Hafarizam's position that the Perak Government is a minority one is not correct.

Article 18 (2) (b) of the State Constitution provides that HRH may act in his discretion in, among others, withholding of consent to a request for dissolution of the Assembly.

However, it does not necessarily mean that HRH has an absolute power in the matter.

The question is, and has always been, how should HRH exercise that discretion rather than whether HRH has an absolute power or otherwise.

The Role of Constitutional Conventions in Law

I must refer to a creature known as Constitutional Conventions.

A Constitution is the mother of all laws. In jurisprudential term, it is the "grund norm". It is a living and breathing document. It is impossible for any Constitution to provide for each and every probabilities and possibilities. Thus a Constitution may be as brief as the US' Constitution or as long as the Indian one.

It could also be unwritten as the British one. But what maintains the order of the state administration in matters where the Constitution is silence are the conventions, or accepted practices. It is when conventions are thrown out of the window that crisis happened.

de Smith in the same book, at page 55 says that "law and convention are closely interlocked." Foremost of all, Jennings, in The Law and the Constitution, says that constitution conventions "provide the flesh which clothes the dry bones of the law, they make the legal constitution work; they keep in touch with the growth of ideas."

de Smith summed up Dicey's position on adherence to conventions (in Dicey's Introduction to the Study of the Law of Constitution as follows:
"Dicey contended that the sanction which constraints the boldest political adventurer to obey a convention he might feel inclined to break was his fear that breach would almost immediately bring him in to conflict with the Courts and the law of the land."
de Smith then concluded that "obedience to conventions was therefore buttressed by the sanctions of strict law".

He further explains that "the sense of obligation and the fear of disagreeable consequences which tend to induce people to comply with conventions are broadly similar to the corresponding feelings which conduce to observance of the criminal law".

Such is the importance of constitutional conventions that any breaches of or departure from conventions might bring untold consequences. The fear of these consequences drives the compliance with the conventions.

In my humble view, and I say this with the greatest of respect to HRH the Sultan of Perak, the crisis in Perak was not caused by a lack of power. It was driven by a departure from conventions in the exercise of HRH's discretion.

What is the convention or accepted practice in relation to the refusal of dissolution under a Constitution which draws its form and substance from the Common Law and a Westminster styled democracy, you may ask?

HRH the Sultan of Perak himself succinctly put in HRH's book, "Constitutional Monarchy, Rule of Law and Good Governance" that "under normal circumstances, it is taken for granted that the YDP Agong would not withhold his consent to a request for dissolution of Parliament. His role under such situation is purely formal."

It is also clear that the Premier has the power to request a dissolution at any time of his own choosing. Wade and Phillips, in "Constitutional Law" posits that " no sovereign could constitutionally refuse to grant a dissolution of Parliament at the time of his (the PM's)choice".

It is also of considerable interest to note de Smith's observance that "some modern writers have argued that the usage of acceding to request has hardened into a binding convention never to refuse a request, or the power to refuse exists in theory but not in practice, or that the monarch is too remote from political realities or too likely to be swayed by conservative influence or prejudice or too vulnerable to criticism to exercise an independent discretion.

Hence such a refusal would now be highly controversial, unless the request itself was manifestly improper; and this fact alone must make any attempt at definition highly tentative."

The Mess in Perak Caused by Disregard for Constitutional Conventions

Events in Perak in the past few months have elevated the above statement to a prophecy of sorts. Just look at the controversy surrounding the crisis now. Just look at the public ridicule over the entire issue nowadays. None of these would have occurred had conventions been followed.

The Perak crisis has morphed itself into a black hole which is sucking into it the whole administrative system of this country. Affected by the crisis is not only the 3 leaping ADUNs and the respective political personages who are jostling for power but also the various institutions which happen to be connected - by close proximity, usages or entanglement - to the crisis.

The Assembly is in a shamble. Its Speakers are in doubt.

The Royal house has been ridiculed, though I must hasten to add, mostly unwarranted. It has even been used during by-elections as shouts of "derhaka" were provoked and relished by some politicians. The independence of the MACC (in postponing the case against the 2 leaping ADUNs), the police, the AG chambers and even the Courts has been questioned. The whole Malaysia is in fact a laughing stock.

That is the price which we, Malaysians, are paying for this truly unnecessary event.

Perhaps we should read more and ponder on the wise words of learned writers, whose words now have become nothing short of prophetic. Consider what de Smith said:
"...the burden thrust upon the Courts when they are called upon to determine whether prescribed rules have been complied with in a politically sensitive situation is liable to be excessive. Whatever the outcome, the prestige of the Judiciary will probably suffer.

If the rules have been set down, do not require the Courts to decide whether, for example, a Prime Minister has been validly dismissed. This is pre-eminently a question about the reins of power.

If the constitutionality of such an act is disputed, the controversy is unlikely to be resolved by the pronouncement of a court."
The above statement could have been written as a real-life commentary of what has been happening in Perak and in our Courts recently. But that was written a good 36 years ago.

And that is the high price all of us pay when conventions are not followed.

Hafarizam is Wrong in Blaming Nizar for the Perak Crisis

Hafarizam opines:
"What it means, in layman's term is simply this, that YB Dato' Seri Ir Nizar should have resigned the day he met HRH the Sultan of Perak on 4th February 2009.

His defiance on that day has dragged the constitutional crisis to where it was until the Court of Appeal decided today!"
I beg to differ.

As shown above, authorities, Constitutional precedents and Conventions have shown that, when faced with a no confidence vote, a Premier is entitled to seek dissolution. When sought, conventions dictate that the Ruler should not refuse dissolution. In the Perak case however, dissolution was inexplicably refused. The MB was asked to resign instead. And a new MB was appointed.

Nizar was just exercising his right as the incumbent MB in asking for dissolution. That was his constitutional right. He did not cause the crisis.

The crisis was caused by events taking place after he exercised his right as such.

I have touched on this issue in my article The Perak Crisis - an unsolicited legal opinion and I would not repeat it here.

Suffice to say that the notion that the Ruler has the power to dismiss the MB under circumstances where the MB has lost the confidence of the Assembly, without more, is MISCONCEIVED

Conventions dictate that firstly, dissolution MUST be granted when requested.

This is in line with the fact that under the Perak Constitution, by article 16 (7), the MB does NOT hold office at the pleasure at HRH the Sultan.

L A Sheridan, in his book "The British Commonwealth - the development of its laws and constitutions" noted that
"in the temporal sphere of politics the Ruler has been since 1957 a constitutional Ruler....a Ruler with limited powers....and that the MB or Executive Council should not hold office at the pleasure of the Ruler or be ultimately responsible to him but should be responsible to a parliamentary assembly and should cease to hold office on ceasing to have confidence of that assembly."
However, when the Constitution was framed, it makes the Executive Council to hold office at the pleasure of the Sultan but not the MB. And of course, when faced with a no confidence vote, the MB may request dissolution first.

de Smith agrees with this when he says:
"If a Government, having lost its majority...were to insist on remaining in office instead of offering its resignation or advising a dissolution, the Queen would be justified, after the lapse of a reasonable period of time, in requesting the Prime Minister to advise her to dissolve Parliament and, if he were to refuse, in dismissing him and his Ministers."

What Should Have Happened to Avoid the Perak Crisis

So, the exact methodology is this:

The FIRST scenario:
1.the Premier loses majority
2.the Premier offers resignation - if this happens, the Queen appoints a new Premier and the matter ends there.
The SECOND scenario:
1.the Premier loses majority
2.the Premier requests dissolution
3.the Queen dissolves Parliament
4.a general election is called
The THIRD scenario:
1.the Premier loses majority
2.the Premier refuses to resign
3.the Premier refuses to advise dissolution
4.the Queen waits
5.after a reasonable period of time, the Queen invites the Premier to advise her to dissolve
6.the Premier refuses
7.the Queen sacks the Premier
The Perak situation falls under the SECOND scenario. Unfortunately, dissolution was NOT granted.

(In any event, it has to be pointed out that the loss of majority was, at the time of the request for dissolution, not established clearly in the Perak crisis).

From the above, it is clear that the power to dismiss is just a residual power.

It is a power which is necessitated by events rather than a power which is naturally imbued in the Ruler's armoury of discretions or prerogatives. It would be wise to take heed of what de Smith later said:
"A change of Prime Minister may be necessary because of the resignation, death or dismissal of the incumbent. The last possibility, dismissal, would arise only in highly exceptional circumstances and, one would suppose, in a near revolutionary situation."
The Power of the Sultan in the Removal of the Mentri Besar

It is therefore clear that this residual power cannot be exercised by HRH without having explored the possibility of executing any other Constitutional power.

It is a power, which, in my humble opinion, is to be exercised as a definite last resort and after having explored all other possible avenues. Since Victoria came to the throne, all vacancies in the PM office have arisen through either death or resignation and never dismissal. de Smith pointed out that the last unambiguous dismissal of the Government took place in 1783!

Even if the Queen were to dismiss the PM, de Smith posits that the new PM must be prepared to advise dissolution of the Parliament at the "earliest practicable moment."

It is therefore clear that the new PM (or in the Perak case, MB), appointed upon the dismissal of the previous one under this residual power, is not appointed to rule but to advise the Ruler to dissolve the Parliament (or in the Perak case, the Assembly) so that power can be returned to the people through an election process.

That is the true spirit of the Constitution. The true spirit which has been forgotten or put aside due to political expediency and possibly, greed.

That being the case, even on the assumption that Nizar had lost the majority support and that HRH the Sultan was right in dismissing Nizar, Zambry's function is not to rule but to advise HRH the Sultan to dissolve at the "Earliest practicable moment".

It is interesting to note that Mahathir Mohammad himself had thought that the Perak coup was wrongly done and handled. He then admitted that if an election is called in Perak, the BN would lose. It is therefore clear that the BN leadership is uncomfortably possessed of the knowledge that they would lose in an election, if it is called. Hence the refusal to advise dissolution of the Assembly.

Startlingly, de Smith had foreseen this situation when 36 years ago, he wrote:

"She (the Queen) would also, it is submitted, be justified in dismissing her Ministers if they were purporting to subvert the democratic basis of the Constitution - for example, by prolonging the life of a Parliament in order to avoid defeat at a General Election..."
In the circumstances, where the BN Government know full well that they are going to lose in an election, if it is called, it is my humble view that the BN Government lacks the moral, and even legal, ground and standing to rule Perak. That is, with respect, an attempt to subvert the democratic basis of the Constitution by prolonging the life of the Assembly in order to avoid defeat in an election.

It is therefore submitted with respect that the HRH the Sultan of Perak is now possessed with the residual power to invite Zambry to advise HRH to dissolve the Assembly. In the event he refuses, Constitutional Conventions would equip HRH with the power to dismiss the Government and appoint a new one just for the purpose of advising HRH the Sultan to dissolve the Assembly.

The real power could then be returned to the people through the ballot boxes.

I rest my case.
- Art Harun

Friday, 22 May 2009

UPDATED: UMNO-Controlled Court of Appeal's Incompetent and Spineless Judges

Read here and here and here

"We have extraordinary judges with extraordinary ability."
- Sulaiman Abdullah, Lawyer

“The RIGHT to CHOOSE the Mentri Besar and Prime Minister is the ULTIMATE RIGHT of the SULTAN. (ie NOT the People)
- Hafarizam Harun , Lawyer for Barisan Nasional

A three-member Bench in the Court of Appeal today returned a unanimous decision that Barisan Nasional’s Datuk Zambry Abd Kadir is the rightful Perak mentri besar.

The Court of Appeal ruled :
  • Pakatan Rakyat Datuk Seri Mohammad Nizar Jamaluddin had ceased to command the majority in the Perak state assembly.

  • The Sultan was right in appointing Zambry the MB

  • There was no need for a vote of no confidence in the House against Nizar.
The three judges who made the decision are:
  1. Md Raus Shariff,

  2. Ahmad Maarop

  3. Zainun Ali
When Nizar's counsel Sulaiman asks for written judgment for such an urgent and nationally important issue, Justice Raus says he could ONLY give in A WEEK'S time.

The Court of Appeal's decision was POLITICAL and widely anticipated given the political pressure piled by Prime Minister Najib Razak on the courts.

When the verdict was announced, there was complete silence in the courtroom as those present struggled to contain their anger at the bold-faced injustice unfolding before their eye.

Some 200 Pakatan Rakyat supporters have gathered outside the Palace of Justice in Putrajaya to vent their frustration. The crowd is chanting 'Hidup Nizar' and 'Reformasi' among other slogans under the watchful eyes of several policemen.

In an immediate reaction, DAP stalwart Lim Kit Siang warned that the court's decision would only serve to fuel the anger of the people towards Prime Minister Najib Abdul Razak.

"The best solution (to end the crisis in Perak) is to hold a fresh elections," he told reporters.

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.

Nizar's counsel Sulaiman Abdullah said he would be filing an appeal. When asked if he was shocked with the judgment, Sulaiman said: "We have extraordinary judges with extraordinary ability."

On May 11, High Court judge Abdul Aziz Abdul Rahim had declared Nizar was the lawful chief minister at all material times and that Zambry, who was sworn in by the Perak Sultan on Feb 6, was never the legal menteri besar.

However, on May 12, Court of Appeal judge Ramly Mohd Ali shocked the nation by granting in super-quick time a stay of the High Court’s ruling, sparking widespread public discontent about the quality of justice in Malaysia’s legal system.

The Perak Sultan, Azlan Shah SUPPORTED Najib to get Zambry appointed as MB and had Nizar sacked, despite the removal was unsanctioned by the legislative assembly via a follow-through no-confidence vote.

But despite the uproar by Perakians and Malaysians across the country, the Perak Sultan, who was once the President of the Federal Court, has turned a deaf ear on the clamouring, disallowing his subjects from choosing the leaders that they want to lead their state and not the line-up foisted on them by Najib.

Three months have passed and by now it is obvious that not just Perakians, but Malaysians nationwide, want fresh election to resolve the crisis. However, a power-crazed Najib has chosen to hang on in Perak and has resorted to all ways and means - including the underhanded and the foul.

On May 7, Umno-BN assemblymen led by Zambry used brute physical force to eject V Sivakumar, the Speaker of the state assembly, from the legislative hall which was captured for posterity on You-tube video footage sparked a nationwide outcry.

( Read here for more)

The Court of Appeal was told there were NO LAWS to remove any heads of government in Malaysia.

Nizar's counsel, Sulaiman Abdullah, said that even if a mentri besar chooses not to resign after losing the support of fellow lawmakers there was nothing that could be done. 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 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.

The issue of whether a mentri besar had the support of HIS FELLOW LAWMAKERS is for the "elected pool" in the legislature to decide.

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.

The courtwas also told 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.

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.

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.

Related Article:

Read here for more

It is a rare day anywhere when a LOSING party walks out of court with a pearly smile and magnanimity.

In Malaysia, it is almost never heard of, no thanks to the cloud of suspicion which has hung over the judiciary since the sacking of the judges in 1988.

Judge-fixing, elevation of less competent judges, suspect judgments and the tawdry V. K. Lingam video clip affair have all combined to strip this important institution of the one ingredient it needs so badly to function – credibility.

So even BEFORE Justices Ab Rauf Shariff, Zainun Ali and Ahmad Maarop delivered their judgment today, the cynics already wrote off Nizar’s chances of getting a good hearing.

The cynics argued that High Court Abdul Aziz Abdul Rahim’s decision in favour of Nizar was a one-off, an aberration.

How did we get to this point where public trust in institutions has reached abysmal levels? How did we get to the point where even the man on the street thinks nothing of mocking the “Hakim”?

The Court of Appeal today decided that:
  1. when Nizar was granted an audience by the Sultan of Perak, he had lost the confidence of the majority of the assembly, and the Malay Ruler was spot on in asking him to step down.

  2. There was no express provision for a vote of confidence to be taken in the state assembly. The Justices appeared to rely on a statement made by Justice Abdul Kadir Sulaiman in the Amir Kahar case (1995).
    “The evidence that a chief minister ceases to command the confidence of the majority members of the Assembly … is not only available from the votes taken in the Assembly. There is nothing in the Constitution which can be construed as requiring that the test of confidence must be by a vote taken in the Assembly itself. That fact can be evidenced by other extraneous sources….”
    This paragraph was relied on by the Justices to support their decision that there was no necessity to go to the assembly to test whether Nizar commanded the confidence of the majority of the assembly. In this instance, the Sultan acting on evidence by other extraneous sources, was right to reach the conclusion that Nizar had lost the confidence of the assembly.

    The big problem with relying on this statement by Abdul Kadir Sulaiman is that it was a comment made in passing. It formed the obiter dicta in the case, or a remark by the judge which does not form part of the court’s decision. The obiter dicta are not the subject of the judicial decision.

    Perhaps that is the reason why Sulaiman Abdullah noted that Malaysia has “extraordinary judges with extraordinary ability.”
Pakatan Rakyat defector Jamaluddin Mohd Radzi said that his decision to back Barisan Nasional (BN) was justified. He and his fellow defector Osman Jailu know a thing or two about the inside of a courtroom, having been charged with corruption last year. Jamaluddin has always tried to paint himself as the wronged party, the lawmaker who had little choice but to defect because he was on the verge of being kicked out.

But his disappearance for several days prior to the defection, his sheepish demeanour after resurfacing in Putrajaya and absence of remorse for deceiving his constituents exposed him for what he is – a politician driven by self-interest and little else.

His comment after the Court of Appeal decision (saying that he was vindicated by the ruling) only confirms that self-preservation was his only motivation for defecting.

BN’s lawyer Datuk Hafarizam Harun was jubilant after the Court of Appeal decision, declaring: “the right to choose the mentri besar and prime minister is the ultimate right of the sultan.”

That is a powerful statement with serious consequences for a parliamentary democracy.

So does the Yang Di-Pertuan Agong have the power to choose who should lead Malaysia?

Can the Agong after learning that several BN lawmakers have crossed over to the Pakatan Rakyat ask Prime Minister Datuk Seri Najib Razak to stand down?

Surely not.

Is Malaysia a constitutional monarchy or an absolute monarchy? The Court of Appeal’s decision today tilts Malaysia towards the latter, towards a return to more feudalistic days.

The decision vests the Malay Rulers more power than what is outlined in the Federal Constitution.

Several weeks ago, Tun Dr Mahathir Mohamad said: “I don’t think anyone wants a return to feudalism. Going back to feudalism will be a big mistake. The system we have has worked very well for us until the present case in Perak.”


Pakatan Rakyat will organise a three-day hunger strike starting on Tuesday that will be led by the ousted Nizar and dumped state speaker V. Sivakumar.

It will take place in front of the DAP headquarters here, which sits not 50 metres from the gates of the state secretariat, the seat of power that has swung between Nizar and Zambry.

At the press conference, Ipoh Barat MP M. Kulasegaran slammed the judiciary for being incapable of dealing with constitutional matters.

Read here for more

Anwar Ibrahim is not surprised with the appellate court ruling that Barisan Nasional's Zambry Abd Kadir was the legitimate Perak menteri besar. Anwar said Nizar did not deserve to be booted out because he was a “capable, clean and caring” leader.

According to the opposition leader, Nizar had safeguarded the interests of the poor and needy in his one-year stint as Perak menteri besar.

He did not misappropriate or spend lavish public funds on mega-projects. He did not steal logging revenue and solicit shares for himself. Maybe those were his wrongdoings,” quipped Anwar in his typical reverse psychology one-liner to the 3,000-strong crowd in the remote village.

The Permatang Pauh parliamentarian went on to lambast BN for not heeding popular demand to dissolve the Perak assembly and pave the way for a fresh state election. BN and its media, he claimed, were now trying hard to convince the public that Pakatan was the cause of the Perak political deadlock when the truth was otherwise.


Read here for more in Malaysiakini
  • "... The perversity of the Court of Appeal decision is not lost on the people.If we follow their logic that there is no need to pass a vote to determine who has the confidence of the majority, why not apply it to by-elections to save time and money?

    Each candidate's chances of winning can be statistically calculated with some sample interviews and the seat awarded to the candidate whom the EC believes commands the support of the majority.

    The real court which matters is not Umno's court but the court of public opinion. Instead of legitimising BN's power grab, the usurper's reputation has fallen even further in the public eye.

    A government which dares not face the people but uses a compliant judiciary to enforce its power grab has no right to call itself legitimate...."

  • "... The Court of Appeal decision in favour of Zambry over Nizar will not be well-accepted by the Malaysian public and will always be frowned upon. Especially when the Salleh Abas saga and the Lingam Tape controversy remain unresolved and persons corrupting the judiciary not brought to book.

    The judiciary will always be looked upon as servants to the BN administration if no serious effort is made to restore its independence. Because the judiciary is still tainted, yesterday’s Court of Appeal decision will not be seen as victory for Zambry but a defeat of the Malaysian people..."

  • "... With the integrity of the judiciary sunk low in the court of public opinion, Malaysians will deride this politically motivated verdict which tears at the heart of constitutional monarchy.

    Who decides whether Nizar has ceased to command the majority of confidence of the state assembly? Surely this must be the state assembly itself and not the sultan undertaking his own investigations.

    Somehow, the Court of Appeals has squirmed and slithered to reach a ludicrous conclusion. An appeal to the Federal Court is unlikely to bring joy to Nizar.

    Judges are promoted not on merit but on their degree of compliance to BN which uses the judiciary as a tool of oppression and to make up for the loss of their two-thirds parliamentary majority.

    Not even under Mahathir has the Malaysian judiciary sunk to such depravity and moral turpitude. ..."

  • ".. Bringing the issue to the High Court/Court of Appeal/Federal Court/kangaroo courts is all wrong.

    The real court is the people's court. Let the people of Perak be the judge and decide for themselves who they want to rule the state..."

  • ".. BN may have won Perak with the Court of Appeal judgment, but they definitely have lost Malaysia in the People's Court. .."

Sunday, 17 May 2009

ROSDI MUSTAFA aka Pasquale aka Barking Magpie - YOU are the PIG in PM Najib's Office.

Read here in Sakmongkol AK47 Blog

ROSDI MUSTAFA aka Blogger "Pasquale" aka Blogger "Barking Magpie"

Excerpts:Read here for more


"Sakmongkol AK47"

This chap blogs using the name Pasquale aka barking magpie. When you click pasquale on Sopo Sentral, the blog Barking Magpie appears. You put two and two together, the owner of the blog Barking Magpie is also Pasquale. The actual identity of the blogger was made known when his article was reproduced in Malaysia Today.

His real name is Rosdi Mustafa.
He works in PM Najib's outfit and one of the media handlers.

When he wants to denounce others he uses Pasquale. When he wants to write something resembling an intellectual discourse, he assumes the identity of the barking bird.

These were what he said in his comments at Rocky Bru:

I also know this Sakmongkol he is an ardent anti-Najib just because Najib does not entertained or approve his greedy, corrupt and self-centered attitude!

His life serve only himself, he wants" project to enrich himnself but when Najib said no he went against him! Ini Melayu babi ni!
What do you make of someone who works in the PM Najib's office saying the above? I can only say, this is someone who shamelessly exploits his official status to excoriate others just for the fun of it. He mistakes vile and abusive remarks for forthrightness. I am afraid that reflects his deficiency in moral and intellectual fibre.

This bloke ( Rosdi Mustafa) does not know me. I don't know him. We have never talked.

I see him loitering around Dato Najib's office engaging in whispers with other officers prompting us to believe he is privy to some top state secret.It is just his way of urinating to mark territory. I am here, you are out there kind of thing.

I can never claim to know him, have never talked to him and I am glad, do not need to know him. I have seen him loitering around Dato Najib's office possibly pretending the weight of the world is on him.

The truth is, people avoid him like the plague.

Accordingly, I need to ask YAB Prime Minister (Najib) this question.
Has he got a flying pig in his office?

Or in Bahasa Melayu:
Ada seekor babi yang berkepak kah di dalam pejabat YAB Dato Seri?
In my years with the PM as a Pekan politician, I have never heard Dato Najib encouraging or condoning his subordinates to debase others by calling them babi.

Nor have I heard him encouraging his people to engage in vile name callings.

When Tengku Razaleigh Hamzah was in Semangat 46 and came down to Pekan to campaign, DS Najib clearly instructed all UMNO office bearers not to disparage TRH.

We have a problem here.

Dato Najib harbours one official who is incompatible to his personal philosophy. He has someone who is congenitally vile. This person has the habit of babi-ying everyone.

To Muslims, babi is an unclean animal. To be called a babi is to equate those being called as najis of the highest degree. It is haram. Parents do not teach their children to call other people babi.

Here, among the PM's band of media handlers is this loathsome individual whose reddened face is probably brought about by indiscriminate consumption of intoxicating liquids.

His personal background is well known among media people. He has a fondness for calling other people babi.

Hence Anwar Ibrahim is termed as YB BABI. When he came over to Rocky Bru's blog to comment on the issue of anonymity in which I was involved- he mentioned me in very scornful terms. I was also called a Melayu babi.

Since he is an authority on 'memBABIkan' orang lain, he must be a flying pig himself- a special one but a pig nonetheless. Dato Najib has an unclean animal in his office.

This pig-headed buffoon recently wrote an article imploring Dato Najib to appoint a prominent blogger to head the NST.

From what we read, Johan Jaafar and Ahmad Talib are going to head the government's Media Machine. We have not heard definitive statements from the PM's office on this matter.He wrote an article beseeching the PM to not appoint those two people.

Since he works in the PM's office in the media handlers outfit, his views can be portentous. If not checked, his protests can develop into tidal waves which could easily beach Johan Jaafar and A.Talib.

Beyond the bounds of decency, he was willing to call another fellow human being, a Muslim and a Malay, a Melayu babi.

Rosdi Mustafa aka Pasquale aka Barking Magpie- YOU are the pig in PM's office.

Thursday, 14 May 2009

Justice Datuk Abdul Aziz Abdul Rahim - A Most Courageous Judge : A High Court Judge Succeeded Where The Federal Court Failed


A reader wrote about who is JUSTICE RAMLY MOHD ALI, the one month-old novice in Court of Appeal and former High Court Judge in COMMERCIAL DIVISION, who within 19 hours gave a stay of executive to the landmark decision of the KL High Court which had ruled that Datuk Seri Nizar is, and was at all materal time, the MB of Perak.

Who is judge Ramli Ali, the judge that gave Zambry an stay within 3 hours?

Well, he is a Lingam appointed judge. A former Chief Registrar of the courts. When Lingam was talking to the disgraced Fairuz on how they were to manipulate the judiciary and appoint their cronies into the bench, Lingam said that Ramli was among the three preferred to be appointed by him. The other two were Datuk Heliliah Mohd Yusuf, a former Solicitor-General and Datuk Ahmad Maarop, a former commissioner of Law Revision. They were appointed as directed by Lingam and agreed upon by Vincent Tan and Mahathir on February 1. 2002.
Dear Malaysians, that's the man who gave a ridiculous stay to Zambry within 3 hours. Oh, by the way, Mohd Nizar needs to wait for about 6 days for his appeal to be heard. 1BlackMalaysia. Performance for Umno now. Malaysia later.

P.s Refer to the Lingam tape for verification. (Also read Jeffooi's blog)

----------- END OF UPDATE ----------


Matthias Chang

Matthias Chang is a Barrister of 31 years standing and once served as the Political Secretary to the former Prime Minister of Malaysia, Tun Dr. Mahathir Mohamad. He is the author of three bestsellers, “Future FastForward”, “Brainwashed for War, Programmed to Kill”, and “The Shadow Money-Lenders and the Global Financial Tsunami”, published in the US and in Malaysia.

Read here for more on Fast Forward Blog

The pressure on the High Court Judge to do what is “politically correct” must have been intense.

There is a culture prevalent among some members of the judiciary that it is better to make “politically correct” decisions so as to secure one’s career than to do justice on the spurious ground that there are appellate courts which should bear the weight and responsibility of such controversial decisions.

It is the passing-the-buck syndrome.

These judges would surmise that if they handed down a judgment which is not politically correct and on appeal, the judgment is overruled, it is as good as ending their career – cold storaged till retirement age.

Better that the Federal Court (the Apex Court) being the final authority, bear the brunt of the Executive’s wrath as they have the advantage of strength in numbers, as the corum of the Apex Court can be enlarged to nine.

There is safety in numbers.

Therefore, credit must be given to the Honourable Justice Datuk Abdul Aziz Abdul Rahim for handing down this historic judgment.

Lawyers are officers of the court and like judges, must likewise be courageous in the discharge of their duties. They must not pander to the whims and fancies of their client, no matter how powerful.

If a case is crystal clear and the client is wrong, it behoves the lawyer to advice the client accordingly so as not to pervert the course of justice.

A courageous lawyer in such circumstances will also lend assistance to a Judge to arrive at a just decision and not succumb to the temptation to do what is deemed “politically correct”.

The observation of the Judge as to the conduct of the State Legal Adviser, Datuk Ahmad Kamal illustrates the above principle.

It was reported in the Sun newspaper and I quote:
“On the issue of the affidavit by Perak State Legal Adviser Datuk Ahmad Kamal Md Shahid, Abdul Aziz ruled that he was not a neutral and impartial witness. ‘It was his own admission that he was instructed by the respondent’s counsel to affirm the affidavit. The word instructed is a very strong word. To me, he is not a neutral or impartial witness; his testimony was coloured by the instruction that he received,’ said Abdul Aziz.

“Kamal is the State Legal Adviser and his duty is to advise on all legal matters referred to him, including advising Nizar on the draft proclamation…”
Given the above observations by the said Judge, it seems to me not right for the Counsel for the respondents to “instruct” the State Legal Adviser to affirm an affidavit in the manner in which it was done.

It has been indicated by the Prime Minister that Barisan Nasional would be appealing to the Court of Appeal against the judgment handed down by the High Court.

If, the Prime Minister is sincere in his comments that politicians must be humble and gain the trust of the rakyat, then he must practice what he had preached.

And if he has the confidence and trust of the rakyat, he should have no qualms in agreeing to the dissolution of the Perak State Assembly, have a snap election and let the rakyat be the ultimate judge as to which government they want to rule over them in the state of Perak.

If the Prime Minister insist that might is right, he will be the first one-term prime minister in Malaysia.

While Badawi has the ignominious distinction of having wrecked the Barisan Nasional, it would be Najib who will be vilified for burying UMNO under the rubbish heap of history.

Members of UMNO, you better ensure that Najib makes the right decision or your “gravy train” will be derailed for good.

He is THE Man!

Read here for more


" Umno is still using the May 13 incident as a tool to scare Malaysians.

Umno tells people: ‘Our closest enemies are the Chinese.

The 13th May incident was sparked deliberately by Umno."

-Datuk Seri Nizar Jamaluddin

Datuk Seri Mohammad Nizar Jamaluddin had a rousing reception at a public forum here last night in remembrance of the tragic MY 13 race riots that became a bloodbath 40 years ago. There is no doubt as to his popularity with the public.

The cheers, catcalls, whistles and applause sounded far louder and longer when he walked up to the podium than for Datuk Seri Anwar Ibrahim earlier when the Opposition Leader was opening the event.

Thousands turned up to hear Nizar speak at the city council civic centre, squeezing their rear ends onto narrow chairs in the packed hall, which normally seats about 1,000 people. Those who arrived late had to suffer the ignominy of sitting on the scruffy concrete floor or stand squished to the walls. They did not appear to mind at all; not even the ones dressed to the nines in formal jackets and bling.

Nizar launched into a scathing attack on the Barisan Nasional (BN) government, singling out Umno for the most blistering criticism.

He accused the dominant Malay party of creating a bogeyman out of the May 13 1969 incident.

Umno is still using the May 13 incident as a tool to scare Malaysians,” he thundered.

Nizar claimed that the residual fear from the May 13 incident was based on fiction, created by the ruling parties to continue the colonial tactic of divide-and-conquer to exert control over the populace.

Umno tells people: ‘Our closest enemies are the Chinese’,” he said, to demonstrate what he claimed was the party’s tactics in inciting hatred among the different races.

He alleged the other race-based components of the BN coalition adopted similar measures.

He acknowledged that even he had been duped by the colonialist scare tactics in the past, “but no more”.

The 13th May incident was sparked deliberately by Umno,” he said, pointing out that there was no such racial disturbances in PAS-dominated areas.

Fast-forwarding it to the present day, Nizar emphasised that the Islamist party’s administration is based on universal values such as justice for all and trust.

He further highlighted how peaceful Perak was during its brief 10-month tenure in governing the state, compared to the BN state administration in Terengganu, claiming there existed a deep-seated quarrel inside the party that continued to the present day as the BN politicians squabble over trivial pursuits.

Nizar called on the audience to shake off the metaphorical yoke keeping their heads constantly bowed.

Are we going to let this continue?” he questioned.

“No!” the crowd thundered in reply.

Smiling broadly, he echoed Anwar’s calls for statewide elections in Perak to solve the current crisis.

This, he said, would bring about a promising new political landscape in Malaysia.

Wednesday, 13 May 2009

So, Who IS the REAL Perak MB After the Single-Judge Court of Appeal's Decision?

Read here 'Who Wears the Pants' e on The Aisehman Blog


Technically, Nizar IS STILL the Menteri Besar, as the High Court ruling declared that he was and is the rightful Menteri Besar.

In other words,
  1. Nizar was the Menteri Besar when he sought a dissolution of the state assembly from the Sultan,

  2. Nizar was the Menteri Besar when the Sultan refused,

  3. Nizar was the Menteri Besar when Pangkor Pele was sworn in to take his place, and

  4. Nizar was the Menteri Besar during the sitting under the tree (which makes the sitting valid as the rightful Menteri Besar had called for it).

    That is what the High Court declared.
The stay of execution granted by the Court of Appeal neither invalidates the declaration nor confers the post of Menteri Besar on Pangkor Pele (Zambry) .

If the status quo is to be maintained, then rightfully, Nizar should be the one in the Menteri Besar’s chair today, not Pangkor (Zambry). This is because the status quo that is applicable here is the status quo before the dispute over the rightful Menteri Besar arose.

The High Court ruling refers to the period between Nizar requesting for a dissolution and the Sultan rejecting the request, asking Nizar to tender his resignation, and concluding that should he refuse resignation, he would be deemed to have resigned:

The High Court ruled the Menteri Besar can only be removed via a vote of no confidence in the assembly, after which he shall tender his resignation. Since there had been no vote to show that Nizar had lost the majority of the confidence of the assembly and no resignation from office, he was still menteri besar, according to the High Court.

In other words, while the Sultan has the power to withold consent for dissolution and the authority to select as Menteri Besar a member of the assembly who commands the confidence of the majority of the assembly, he does not have the authority to determine if a Menteri Besar has lost that confidence.

Therefore, the status quo that is to be maintained today is one where Nizar is Menteri Besar.

UMNO's Full Control of the Malaysian Judiciary Through Its Long Time Stalwart, Tan Sir Zaki Azmi, Chief Justice of Malaya

Read here for more

Chief Justice Zaki Azmi was an UMNO member and served as a Legal Advisor to UMNO. His previous position in UMNO was as the Chairman of UMNO's Disciplinary Committee. Chief Justice Zaki Azmi was an UMNO member and served as a Legal Advisor to UMNO. He had also served as Umno Selection Committee Secretary and a Deputy Chairperson of Umno’s Disciplinary Board Appeal Panel.

His ties to UMNO is too deep for him to ensure the independence of the judiciary especially in cases involving the interest of UMNO or UMNO cronies. He has only served the judiciary for less than 5 years in total before becoming the Chief Justice, an unprecedented leap-frogging to the top post in the Judiciary with help of the UMNO-led Government.

He became the FIRST person to be appointed straight to the Federal Court, bypassing the convention of first serving in the High Court and the Court of Appeal.

Zaki married Nor Hayati Yahaya, 32, in May 2005 in a ceremony presided by a kadi from THAILAND and the marriage had fallen apart after three months. Both had agreed to burn the original marriage certificate to hide the matter from his first wife. Read here for more

As UMNO’s legal man, Tan Sri Zaki Azmi was involved with the UMNO's myriad scandalous financial misadventures that were bailed out by the government in the heydays of former Prime Minister Mahathir’s crony-capitalism during the last Asian financial crisis." (Asia Sentinel - 7 December 2007)

Can Malaysians expect justice in cases involving top Umno leaders when there is an Umno Chief Justice, Tan Sri Zaki Azmi?


Lim Kit Siang
Member of Parliament

The question bugging Malaysians in the past 20 months have finally come to the very fore – whether Malaysians can expect justice in cases involving top Umno leaders when the Chief Justice, Tan Sri Zaki Azmi had been a long-time Umno lawyer and stalwart?

When Zaki was appointed directly as Federal Court judge in September 2007, it is open secret that he was headed for what turned out to be a quintuple jump as Chief Justice in a matter of 13 months.

(Read here for more on Tan Sri Zaki's illustrious career in UMNO, and here )

Both inside and outside Parliament, the propriety of Zaki’s appointment as Chief Justice and how it could help in restoring national and international confidence in the independence, impartiality and integrity of the judiciary was raised – with no attempt by the Prime Minister of-the-day to give proper and acceptable answers.

This question has again come to the very fore because of the super-fast-tracking by the Court of Appeal of the application by the usurper Perak Mentri Besar Datuk Zambry Abdul Kadir to “stay” the declaration of the Justice Datuk Abdul Aziz Abdul Rahim in the Nizar vs Zambry case that Datuk Seri Mohd Nizar Jamaluddin is the lawful Mentri Besar of Perak.

The Outright Bias by One Month-Old Novice in Court of Appeal and former High Court Judge in COMMERCIAL DIVISION, Ramly Mohd Ali

Many questions cry out for answer as to:
How could a single-judge Court of Appeal (Ramly Mohd Ali) in a short hearing, in a few hours after the filing of the application, grant a “stay” of the declaration by the Kuala Lumpur High Court judge made in an one-hour reasoned judgment after three days of arguments.
Yesterday, Nizar’s solicitors were informed by fax of Zambry’s appeal:

* 10.07 am – letter to Court of Appeal requesting early date;
* 10.43 am – informed that application for stay fixed on the same day, no time of hearing stated.
* 10.52 am – notice of appeal.

Nizar’s lawyers were NOT given proper notice of the hearing by single-judge Court of Appeal at 11.30 am on the application by Zambry’s lawyers for “stay” of declaration, although Zambry’s application was filed at 9 am and application for stay at 9.30 am.

These time-lines for the “super-fast” Court of Appeal proceedings are pertinent.

(Note: It took almost 2 years for the Court of Appeal to finally reject Canny Ong murder appeal after the High court convicted Ahmad Najib Aris for raping and murdering the IT analyst. On Feb 23, 2005, the Shah Alam High Court sentenced Ahmad Najib to death for raping and murdering Canny Ong, 29, at the 11th kilometre of Jalan Klang Lama between 1am and 5am on June 14, 2003. Read here for more

Nizar’s solicitors have filed his application to discharge Zamry’s “stay” order at the Court of Appeal, Palace of Justice, Putrajaya after lunch.

Is the Court of Appeal prepared to equally fast-track today to have a three-judge bench to convene in special session for the discharge of Zambry’s “stay” order?

MUST READ! Single-Judge Court of Appeal and "The Case of Muthu's Sex Change"

From the ARTiculation Blog

What are you staying?


Art Harun

There was a man. His name was Muthu. He married Meenachi.

All those time he was feeling uneasy. He was not attracted to Meenachi. But he had to marry her because it was arranged. In fact, he wasn't attracted to any woman. Muthu felt that he was actually a woman trapped in a man's body.

So, he finally summoned enough courage and underwent a sex change. He took whatever hormones pills to make his skin smooth. Removed his penis. Implanted silicon into his chest and grow them up to a pair of C cuppers.

Then he went to Court.

And asked for a declaration that he was and is a woman. He also asked for a divorce. Meenachi objected. Some NGO, claiming to represent some rights group intervened and objected too. Some family members also objected.

After a lengthy hearing and hearing submissions from eminent and not so eminent Counsel, the Court granted a declaration that Muthu is and was at all material times a woman. Muthu was very happy. He celebrated. At last, he was free from the constraint of being labelled a man when he is in fact a woman.

Or so he thought.

His wife appealed. The NGO also joined in. His family members as well. While waiting for the appeal, his wife asked the Court of Appeal for an order staying the declaration which Muthu had earlier obtained in the High Court.

Despite the fact that there were two other sittings of the Court of Appeal that day, where a full coram of 3 Court of Appeal Judges were sitting in each of the two sittings, Meenachi's application for a stay order was heard by a SINGLE Judge. But Muthu did not say anything. Because under the law, a single Judge could hear such application.

The single Judge Court of Appeal, after hearing submissions, granted an order staying the declaration which Muthu had earlier obtained.

Muthu now has a problem.

She has been declared a woman. She behaves like a woman. Dress like one. She's got C-cup boobs. And she has no dick. When she wants to go to the loo, she would want to go to the ladies loo. In fact that is the primary reason for obtaining the declaration. She wants to be able to go to the ladies toilet without committing an offence under some municipal regulations.

But now the declaration is stayed. What does that mean?

Does it mean that Muthu is not a woman? But the Court has declared so. In law she is a woman. How? Does it mean now that Muthu cannot go to the ladies toilet? She doesn't want to go to men's toilet. What would the men say? Or do? She has boobs. Wears skirt. No dick. Some men might just smile. Some might take it the wrong way. Some might molest her in the men's toilet. How?

And does it mean now Muthu also cannot behave like a woman? Must she now wear pants and scratch the area where her balls used to be, like other men? And drink beer from the mug in one gulp? And burp loudly after that? Must she also pee while standing? When she is in Kelantan, which supermarket lane is she supposed to be in? Male or female? Muthu is confused. She really doesn't know what to do.

How is she supposed to behave now?

Muthu consults her lawyers. Her lawyers say a declaration cannot be stayed. How can a declaration be stayed? You can stay the execution of a judgement or order. Meaning, if the Court gives an order saying Meenachi owes 1 million to Muthu, the Court can stay the execution of that order. When that kind of stay is given, it means that Muthu cannot do anything to recover that 1 million until Meenachi's appeal is heard and decided upon.

But in that case, it is still an accepted fact that Muthu is a holder of an order requiring Meenachi to pay 1 million to Muthu. That order is not reversed. It is valid. The only thing is that Muthu cannot recover that 1 million just yet. Until Meenachi's appeal is heard and decided upon, that is.

But Muthu did not get that kind of order. Muthu obtained a declaration that she was and is a woman. How do you stay that kind of order. Stay what? To stay that kind of declaration would tantamount to the Court of Appeal reversing the declaration which the High Court had granted after full adjudication. That couldn't be. How can the Court of Appeal do that without hearing the appeal on the merit?

To do such thing would tantamount to the CoA not recognising the High Court order. The CoA surely cannot do that. In the hypothetical case of the 1 million order above, the Court does not invalidate that order. The Court just suspends Muthu's right to recover the 1 million. The Court recognises the validity of the order but the Court says Muthu should not recover the 1 million for the time being.

But to stay a declaration is a different game. That is like saying that declaration does not exist for now.

So, Muthu is, for the time being, a man. Muthu is thinking of wearing BLACK all the time.

PS Just as a digression. On Nizar v Zambry declaration, I was thinking. Under section 54 (d) of the Specific Relief Act 1950, no injunction shall be granted to, among others, interfere with the public duties of any department of any Government in Malaysia. Nizar has been declared the Menteri Besar of Perak. Now, the stay which was given operates or at least is intended to stop him from carrying out his duties as the MB of Perak. It operates as an injunction of sort.

Wouldn't section 54 apply? Just a thought.




Hanipa Maidin

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Ramai ingin mengetahui sama ada keputusan Hakim Mahkamah Rayuan , Dato Ramly Ali menggantung pelaksanaan keputusan Mahkamah Tinggi bermakna Zambry adalah Menteri Besar Perak yang sah ?

Sebelum saya menjawab soalan tersebut, elok rasanya saya berkongsi dengan pembaca tentang perintah-perintah yang diberikan oleh Mahkamah Tinggi pada 11 hb Mei yang lalu. Mahkamah Tinggi ketika mana membenarkan permohonan Dato Seri Nizar Jamaluddin memerintahkan seperti berikut :-
a. Berkenaan tafsiran Fasal 16 ( 6 ) Undang-Undang Tubuh Kerajaan Negeri Perak bahawa dalam keadaan di mana :

(i) Menteri Besar Negeri Perak Darul Ridzuan ingin, dan telah member nasihat, untuk pembubaran Dewan Perhimpunan Undangan Negeri Perak;

(ii) tidak terdapat pembubaran Dewan Perhimpunan Undangan Negeri Perak;

(iii) tidak terdapat usul tidak percaya yang diambil dan diterimapakai dalam dan oleh Dewan Perhimpunan Undangan Negeri Perak terhadap Mentri Besar Negeri Perak Darul Ridzuan; dan

(iv) tidak terdapat perletakan jawatan mentri besar Negeri Perak Darul Ridzuan;
Mahkamah mengisytiharkan jawatan Mentri Besar Negeri Perak Darul Ridzuan ( yang dipegang secara sah oleh Nizar ) tidak boleh dan/atau tidak dikosongkan.

b. Perintah “quo warranto” dikeluarkan kepada Zambry ( Responden ) memerintahkan beliau untuk tunjuk sebab dan memberi maklumat bagaimana dan di bawah dasar atau kuasa atau authoriti mana beliau berhak kononnya memegang jawatan Mentri Besar Negeri Perak Darul Ridzuan dan kononnya bertindak dan/atau menjalankan dan/atau melaksanakan tanggungjawab-tanggungjawab, fungsi-fungsi dan tugas-tugas Mentri Besar Negeri Perak Darul Ridzuan.

c. Perintah deklarasi bahawa Zambry TIDAK BERHAK untuk dan/atau TIDAK MENJAWAT jawatan Mentri Besar Negeri Perak Darul Ridzuan dan BUKANNYA Menteri Besar Negeri Perak Darul Ridzuan pada bila-bila masa yang material.

d. Perintah injunksi untuk menghalang Zambry dan/atau agen-agen beliau dan/atau pengkhidmat-pengkhidmat beliau ( seperti Setiausaha Kerajaan Negeri ( SUK ) dari bertindak dan/atau menjalankan dan/atau melaksanakan tanggungjawab-tanggungjawab, fungsi-fungsi dan tugas-tugas Mentri Besar Negeri Perak Darul Ridzuan.
Itulah perintah-perintah yang Mahkamah Tinggi keluarkan pada 11 hb Mei yang lalu yang sekaligus menunjukkan secara jelas dan terang bahawa Dato Nizar ( bukannya Zambry ) adalah Menteri Besar Negeri Perak yang sah.

Pada asalnya selain daripada perintah-perintah tersebut , Nizar juga memohon perintah gantirugi . Namun di atas kesedaran bahawa wang bukanlah matlamat tindakan Mahkamah ini, maka Nizar telah menarik balik tuntutan gantirugi . Jika tidak ditarik terdapat kemungkinan besar Mahkamah Tinggi juga akan menganugerahkan gantirugi kepada Nizar yang mungkin jika ditaksirkan akan mencecah jumlah yang agak tinggi.

Nizar juga tidak memohon agar Zambry perlu membayar kos kepada beliau meskipun menjadi satu prinsip undang-undang pihak yang kalah seperti Zambry perlu membayar kos kepada pihak yang menang ( iaitu Nizar ). Jika Nizar tidak menarik balik perintah kos tersebut saya boleh bayangkan ratusan ribu ringgit yang mungkin Zambry perlu membayar kepada Nizar. Sekali lagi matlamat kewangan bukan faktor yang mendorong Nizar mencabar Zambry di Mahkamah.

Sekarang saya akan menjawab persoalan yang timbul di awal artikel ini. Permohonan untuk penggantungan pelaksanaan penghakiman ( stay of execution of judgment ) selalunya dipohon oleh pihak yang kalah dalam mana-mana prosiding Mahkamah. Permohonan tersebut selalunya dibuat bagi mengekalkan status quo iaitu supaya pihak yang menang tidak boleh menikmati perintah yang diberikan oleh Mahkamah.

Dalam kes ini sebenarnya peguam Zambry telah pada 11 hb Mei memohon secara lisan perintah penggantungan pelaksaanaan tersebut di Mahkamah Tinggi tetapi Mahkamah telah menolak permohonan Zambry tersebut.

Maka Zambry telah pada hari ini ( 12 Mei ) memohon perintah tersebut di Mahkamah Rayuan dan peguam Nizar telah membantah permohonan tersebut. Dari segi undang-undang prinsip yang terpakai bagi permohonan penggantungan pelaksanaan adalah pihak yang memohon tersebut perlu menunjukkan dan meyakinkan Mahkamah bahawa terdapat keadaan yang istimewa atau unik ( special circumstances ) yang menwajarkan perintah yang diberikan oleh Mahkamah Tinggi tidak boleh dinikmati oleh Nizar.

Dalam kes ini nampaknya Mahkamah Rayuan berpendapat wujudnya keadaan istimewa tersebut tetapi kita masih kabur apakah yang keadaan istimewa tersebut kerana saya difahamkan Mahkamah masih belum mengeluarkan alasan penghakiman ( dan mungkin tidak akan mengeluarkan alasan ).

Selalunya jika pun Mahkamah membenarkan perintah penggantungan pelaksanaan Mahkamah akan juga dalam masa yang sama mengenakan syarat-syarat tertentu. Peguam Nizar meminta Mahkamah mengenakan beberapa syarat kepada Zambry namun meskipun peguam Zambry iaitu Dato’ Cecil Abraham pada dasarnya bersetuju syarat dikenakan ke atas Zambry, Peguam Negara pula menentang syarat dikenakan ke atas Zambry.

Adalah jelas dan nyata sejak dari awal Peguam Negara iaitu Ghani Patail tidak pernah menunjukkan sikap neutral di dalam kes ini. Beliau sejak awal menunjukan sikap memihak kepada Zambry meskipun berselindung di sebalik topeng penjaga kepentingan awam. Sikap beliau dari awal menunjukkan beliau adalah penjaga kepentingan Umno.

Peguam Negara sejak awal bersungguh ingin mematikan kes Nizar. Beliaulah yang memohon merujuk kes ini ke Mahkamah Persekutuan di bawah seksyen 84 Akta Mahkamah Keadilan. Di Mahkamah Persekutuan beliau kalah dan kes Nizar masih hidup. Selepas itu beliau sekali lagi menentang bermati-matian agar Mahkamah tidak membenarkan Nizar meneruskan permohonan semakan kehakiman dengan alasan kononnya Nizar mencabar kuasa Sultan Perak. Sekali lagi , Mahkamah tolak hujah beliau dan kes Nizar diteruskan.

Semasa kes Nizar berjalan, beliau sekali lagi berhujah dan memohon Mahkamah menolak permohonan semakan kehakiman ( judicial review ) Nizar. Sekali lagi Mahkamah Tinggi menolak bulat-bulat keseluruhan hujah beliau. Tiada satu pun hujah Peguam Negara yang diterima oleh Yang Arif Hakim Mahkamah Tinggi.

Akhirnya saya ingin jelaskan di sini perintah penggantungan pelaksanaan BUKAN perintah membatalkan keputusan Mahkamah Tinggi . Keputusan Mahkamah Tinggi masih sah dan mengesahkan bahawa Nizar adalah Menteri Besar yang sah dan Nazri adalah Menteri besar yang haram.

Oleh kerana menteri besar haram merayu mungkin Mahkamah rayuan berpendapat bagilah peluang menteri besar haram tersebut pegang jawatan tersebut sehingga rayuan beliau diputuskan sebab bukankah sejak dari awal beliau telah ketagih dan mabuk dengan kuasa sehingga sanggup membenarkan partinya merompak Kerajaan sah yang diterajui oleh Menteri Besar yang sah dan dipilih secara sah oleh rakyat Perak.

PERAK CRISIS: How Perakians and Malaysians Are Being Screwed by the Federal Court and the Court of Appeal

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Chief Justice Zaki Azmi was an UMNO member and served as a Legal Advisor to UMNO. His previous position in UMNO was as the Chairman of UMNO's Disciplinary Committee. Chief Justice Zaki Azmi was an UMNO member and served as a Legal Advisor to UMNO. His previous position in UMNO was as the Chairman of UMNO's Disciplinary Committee. His ties to UMNO is too deep for him to ensure the independence of the judiciary especially in cases involving the interest of UMNO or UMNO cronies. He has only served the judiciary for less than 5 years in total before becoming the Chief Justice, an unprecedented leap-frogging to the top post in the Judiciary with help of the UMNO-led Government. As UMNO’s legal man, Tan Sri Zaki Azmi was involved with the UMNO's myriad scandalous financial misadventures that were bailed out by the government in the heydays of former Prime Minister Mahathir’s crony-capitalism during the last Asian financial crisis." (Asia Sentinel - 7 December 2007)

On late Monday afternoon, the court ruled that Nizar is still the Menteri Besar of Perak.

On early Tuesday morning, the Appeal Court allowed a stay of execution. This means Nizar was back as Menteri Besar for a mere couple of hours yesterday and then had to hand the state back to Zambry.

What was astonishing was the SPEED in which the Appeal Court sat to make its decision when there are still so many older cases pending -- sometimes up to ten years while the convicted persons awaiting the outcome of their appeal languish in jail without bail during all that time.

And the beauty about this is, even if they lose their appeal, their jail sentence is shorter than the time they have thus far spent in prison under remand. Some have withdrawn their appeal just so that they can go home. It is better to plead guilty or not contest the verdict since the sentence is shorter than the time they would have to spend in prison under remand.

The second thing that has astonished most people; lawyers especially, is the one-man quorum that sat to hear Zambry’s application for a stay of execution. They would have expected a minimum quorum of three judges since this case is of great public interest.

But only one man sat to hear Zambry’s application and it certainly does not give an impression that Nizar saw justice done yesterday in the Appeal Court.

Nizar’s lawyers appeared unhappy that there was insufficient notice given for on May 12’s hearing by the Court of Appeal as there is usually a one-day notice under normal circumstances from the time of filing. It is learnt that Nizar's counsel, Sulaiman only knew of the hearing by coincidence when he was at the Palace of Justice to attend another case, as Zambry’s lawyers had filed the application at about 9.30am on May 12.

That happened to Raja Petra Kamarudin in the appeal that the government filed against his release from ISA detention in November last year. Raja Petra asked for a quorum of seven judges. If not, Raja Petra' s lawyers would settle for five judges.

But the court refused Raja Petra both seven and five and agreed on only three. Question was: Why only three and whose decision was that? It was an administrative decision, meaning a court clerk somewhere decided that it should be three.

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There is disbelief within the legal profession that one of the most controversial cases to pass through the court system this year did not go before a full panel of appeal judges.

It is very rare for a single-judge Court of Appeal to grant a permanent stay of execution, say veteran lawyers. But it is not unprecedented for a single-judge Court of Appeal to hear an application for a stay of execution. It has happened before in Malaysia when time was of the essence and there was a shortage of appeal court judges on duty.

What normally happens is that if a lone appeal court judge finds some merit in an argument by the appellants, he will grant an interim stay of execution, leaving the question of a permanent stay to a three-judge Court of Appeal.

This issue of a single-judge Court of Appeal arose today after newly-minted Court of Appeal judge Datuk Ramly Ali granted Datuk Zambry Abdul Kadir a stay of execution against a High Court declaration that Datuk Nizar Jamaluddin was the rightful Mentri Besar of Perak.

What surprised lawyers was the decision to appoint a single-judge Court of Appeal to hear the application for a stay of execution instead of putting the case before the three three-judge appeal panels which were presiding over cases at the Palace of Justice today.

They also noted that Ramly should have ONLY granted an INTERIM stay and not a permanent one.

Given the gravity of the case and political ramifications, several lawyers noted that the court registrar should have ensured that Zambry’s stay application was heard by a three-judge panel, and not one of the most junior appeal court judges.

Lim Kit Siang said that “the stay given by a single judge of the Court of Appeal did not overturn the High Court decision and could not be taken to mean that Zambry can continue to be illegal and illegitimate Perak MB. It only 'STAYED' Nizar from taking back his lawful and legitimate office as Perak Mentri Besar.

The lawyers I spoke to in the past few hours are shocked at the Court of Appeal single-judge ’stay’ decision.’’

Krisis di Perak Sudah Jadi Politik Kartun

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Petang semalam Dato' Seri Nizar Jamaluddin disahkan Menteri Besar Perak. Tiba-tiba petang ini pula Dato' Dr Zambry Abdul Kadir diberi semula jawatan itu.

Tidakkah situasi ini memeningkan. Rakyat di bawah lebih bercelaru lagi apabila mengikuti perkembangan kes di Perak sekarang.

Apakah babak-babak kartun sudah mulai meresap ke dalam politik Malaysia.

Anggota parlimen Pasir Puteh, Mohamad Hussin berkata, krisis politik di Perak tidak akan selesai selagi mandat tidak dikembalikan kepada rakyat.

Katanya ketika ditemui di sini:
"Mahkamah bukan jalan terbaik bagi menyelesaikan konflik politik yang berlaku di Perak sekarang. Tengoklah apa yang berlaku hari ini.

Semalam Mahkamah Tinggi Kuala Lumpur mengesahkan kedudukan Nizar sebagai Menteri Besar.

Tetapi hari ini Mahkamah Rayuan membenarkan permohonan Zambry untuk menangguhkan keputusan Mahkamah Tinggi.

Tidakkah ini seperti kartun yang ditertawakan orang luar."
Peguam Zambry berhujah penangguhan keputusan mahkamah semalam penting untuk menghalang Nizar daripada mendapatkan perkenan Sultan Perak bagi membubarkan Dewan Undangan Negeri.

Semalam Hakim Mahkamah Tinggi, Dato' Abdul Aziz Abdul Rahim mengisytiharkan Nizar sebagai Menteri Besar Perak yang sah.

Mohamad berkata, mahkamah bukan lagi jalan terbaik bagi menyelesaikan isu yang berbangkit di Perak sekarang.

"Ini kerana dari awal lagi krisis di Perak berpunca daripada sikap rakus pemimpin Umno selepas hilang kuasa pada pilihan raya umum lalu," katanya.