Beware of a serial constitutional killer
The lawyers in Nizar’s legal team have no other choice but to accept the court’s decision. But, frankly, we wonder if the man on the street also shares the same sentiment – accepting and respecting the court’s decision without question.
Mohamed Hanipa Maidin, The Malaysian Insider
It is 2.30 am in January 2010. Najib and Rosmah have just reached their official residence in Putrajaya.
Their arrival is met with a letter by the King declaring that Najib has to vacate the residence simply because the King has appointed a new Prime Minister to replace him.
The letter sets out the reason for this act – the Members of Parliament (MPs) from Pakatan Rakyat (PR), together with a few MPs from Barisan Nasional (BN), have expressed their undivided support for Anwar Ibrahim to become the new Prime Minister.
The letter ends with the following ultimatum: Mr Najib, you are hereby ordered to tender your resignation, failing which your premiership will be terminated forthwith.
The bewildered Najib immediately seeks an audience with the King. The audience is duly granted.
Najib expresses dissatisfaction with the King’s decision. He laments that it is unfair for him to be swiftly removed as Prime Minister in the absence of motion of no confidence against him in the Parliament. He confidently cites Article 44 (4) of the Federal Constitution and, in turn, contends that nowhere in the said Article empowering the King to remove him as the Prime Minister.
The King smiles and softly reminds him with this timely advice: “Mr Najib, don’t you remember that on May 22, 2009 at 3.30pm in the case of Dato Zambry v Dato Nizar, the three judges of the court Appeal unanimously held that:
a. A Chief Minister (in the state level) or a Prime Minister (in the federal level) can be impliedly dismissed if the King unilaterally decides that the CM or PM respectively has ceased the command of confidence by a majority of the state assemblymen or MPs.
b. Article 16 (6) of the Perak Constitution which is equivalent to Article 43 (4) of the Federal Constitution makes no reference as to the mode of determining the CM or PM has lost the confidence.
Be that as it may constitutionally speaking there is no explicit requirement of votes of no confidence to be passed before the CM or PM can be removed from his office.
c. The case of Stephen Kalong Ningkan (1966) is no longer a good precedent. In Ningkan, the Sarawak High Court laid down the universally accepted constitutional convention namely the Governor or the King has no power to dismiss the CM unless a motion of no confidence has been passed by a state legislature.
To add salt to the wound, the King further says:
“Is it not you who badly wanted such a perverse ruling in order to gain a short term political victory? Is it not you who failed to hear the public outcry demanding the dissolution of the Perak Assembly in order to solve the constitutional impasse in Perak? Is it not you who refused to solve the Perak crisis via democratic means, namely, by going back to the voters to decide which party they want to represent them in governing Perak?
“Sorry Mr Najib, the problem you are facing now is of your own making. You are to blame yourself. You are hereby ordered to vacate your residence with an immediate effect.”
The above scenario is, in my view, the appropriate illustration to depict the impact of the court of appeal’s decision overturning the landmark decision of the learned High Court Judge Dato Abdul Aziz Abdul Rahim given on May 11, 2009.
When Dato Abdul Aziz made a decision allowing all the prayers sought by Nizar in his judicial review application, the learned high court judge, to his credit, gave a reasoned judgment. Therein, he discussed in great detail all the points raised by all parties in their respective submissions.
On the other hand, when the court of appeal allowed Zambry’s appeal, only cursory grounds were given. To date, a detailed, reasoned judgment has not been made available.
Despite the profound submissions made by respective parties, and given the fact that the appeal dealt with very crucial constitutional points, the unholy haste in making the ruling makes one wonders whether the judges really read or appreciated the arguments put forward by the opposing parties.
The lawyers in Nizar’s legal team have no other choice but to accept the court’s decision. But, frankly, we wonder if the man on the street also shares the same sentiment – accepting and respecting the court’s decision without question.
Whilst the people’s views of our dented judiciary remains unabated, the latest perverse decision of the court of appeal aggravates the state of affairs. This is what happens when our machinery of justice has lost its legitimacy.
When BN overstays in the political arena, the people start questioning its legitimacy to rule the country.
Unfortunately, the government’s agencies – in particular, those entrusted with the administration of justice such as the judiciary, the police force and the Attorney General’s office – have also been duly affected when BN lost the legitimacy to rule. In other words these administrations unnecessarily carry the BN’s burden of legitimacy, or lack thereof.
The Perak’s legal and political turmoil reinforces what Raja Azlan J. (as he then was) said in Pengarah Tanah dan Galian , Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd (1979) 1 MLJ 135 :-
“Every legal power must have legal limits, otherwise there is dictatorship … Power tends to corrupt and absolute power corrupts absolutely.”
Since Day One, BN has indulged in unlawful acts as far as the Perak crisis is concerned. To cover its unlawful acts it has to resort to other unlawful measures.
Perhaps the following illustration would be the best way to describe what B has done in Perak.
When A, being a Muslim commits a sinful act by drinking liquor , the intoxication leads him to commit an adultery which is another sinful act. In order to hide his sinful act, he subsequently kills the woman, fearing she may become a real threat to him.
The same happens to BN in Perak. Intoxicated with power, BN committed a series of unlawful acts, the most glaring one of which is”sodomising”the Perak constitution.
Using (read “abusing”) the courts to hide its unlawful acts the former was then asked to kill the constitutional doctrines and conventions. To its discredit, the court willingly submitted to BN’s nefarious scheme.
Thus, for the first time the apex court demolished the doctrine of trias politica (the French term for “separation of powers”) when it, without any sense of guilt, nullified the decision of another branch of the government’s arms i.e., the legislative body.
The doctrine of separation of powers recognises that the speaker of legislative body is the final arbiter as far as the internal affairs of the State Legislative Assembly are concerned. There are at least five judgments of the Malaysian courts, given by judges of impeccable integrity, which in unison held that any decision by the speaker or legislative body would not be amenable to judicial intervention. Legally speaking, the decision of the speaker is unjusticiable.
But to keep such a well entrenched doctrine would definitely frustrate BN’s illegal plan to remain in power in Perak illegally. Thus the doctrine needed to be buried once and for all.
Being a “serial constitutional killer” BN craved to kill another constitutional tenet enshrined in our constitution, namely, the doctrine of constitutional monarchy. Again BN was able to accomplish its malicious mission.
Hence on May 22 at 3.30pm the three judges of the court of appeal officially pronounced and declared the demise of constitutional monarchy in Malaysia.
When constitutional monarchy ends, constitutional anarchy definitely begins.
Mohamed Hanipa Maidin sits on the Pas central committee and is the Pas legal adviser. He is also a lawyer who blogs at peguampas.blogspot.com
