Live updates: MB v MB

9 February, 2010

By Edmund Bon Tai Soon

(note this post may contain mistakes as it is paraphrased. Full judgment will be posted soon and this post will be removed by the end of the day)

1109 no order as to costs by consent. Question 1 answered in affirmative, question 2 answered that extraneous means possible, question 3 if mb doesn’t resign, post can be deemed vacant. However all is not lost, nizar still able to move a no confidence motion in housev zambry or make rep to sultan that zambry no longer commands majority.

1105: word “shall” is mandatory so if nizar’s request to dissolve was refused, nizar must resign. If nizar doesn’t resign, nizar went v 16(6) and sultan can remove. Appeal dismissed

1100: Court rules affirmative to question 1 n no need house vote to question 2 meaning sultans action to deem nizar’s post vacant is valid. For question 3, court agrees that sultan may remove MB n appoint new MB who commands confidence of majority of members.

1054: Goes in depth of Amir Kahar, n says Ningkan is distinguishable. Quotes Raja Azlan Shah in Loh Kooi Choon to say that our constitution must be read without reference to other constitutions. See also KWK. Agree with Raus that it will lead to absurdity if under 16(6) one may only establish loss of confidence after votein house. Extraneous evidence is accepted following kadir Sulaiman in Amir Kahar eg concession by MB, resignation etc

1047: J deals with question whether vote in house required n effect of case of ningkan. AG says that factors in ningkan are distinguishable ie assembly in ningkan was in session. Also ref to Amir Kahar and Akintola. Goes into facts of those cases.

1043: J discusses 16(6) & 36(2). There was no vote of no confidence. But request for dissolution, following court of appeal, was made under 16(6). Court of appeal was justified to say so.

1039: J speaks about state of affairs as of 4feb. Court of appeal was correct. Nizar knew as of 4 feb that he lost support of majority. It was a request under 16(6).

1035: J now goes to the questions. Interpreting 16(6) Perak constitution. MB if ceases to command confidence can ask under 16(6) for dissolution but if sultan refuses to dissolve then MB must resign. No dispute that MB asked for dissolution. But was it under 16(6) or 36(2). HCT did not believe state legal adviser but court of appeal reversed HCT per Raus Sharif.

1031: J goes thru constitution n principles in interpreting the same. See hinds, teh, nordin salleh.

1026: Najib presented sultan letter showing majority aligned to bn, brought 31 ADUNs to meet HRH who pledged support to BN. HRH spoke to 4 ADUNs incl Bota. 1pm 5th feb nizar had meeting with sutan, sultan later issues press statement saying sultan refused to dissolve n that MB post vacant.

1024: J going thru Hee’s actions. Sultan receives 3 ltrs on the jumpers’ positions saying they lost confidence in nizar

1019: J narrates the 3 jumpers fr pr to bn, purportedly resigning, but all 3 refute resignations

1014: arifin zakaria delivers judgment of court – appears to be unanimous, judge now reads grounds, going thru chronology

1011: court convenes, Philip introducing parties

1006: fyi, Hj Sulaiman is in shah alam court for trial n can’t get away. Team nizar rep by Philip Koh, Chan Kok Keong, Nga Hock Cheh, Ranjit Singh, Razlan Hadri, Amer Hamzah, Leong Cheok Keng, Hanipa Maidin, Zulqarnian Lukman, Joanne Leong, Cheang Lek Choy, myself

1004: people getting edgy, crt staff ready, appearance by judges imminent

959: still waiting for court to appear

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Kempen PerlembagaanKu/MyConstitution Campaign comes to Perak!

The MyConstitution Campaign was first launched on 13 November 2009 at the Bar Council, Kuala Lumpur. It then launched the 2^nd phase of the Campaign on 15 January 2010 at Sunway University College, Petaling Jaya. Now, it’s travelling outside of the Selangor and Wilayah Persekutuan regions for the first time. It’s first destination? Perak!

Please come and join us as we sow the seeds of constitutionalism across the nation. Admission is free!

“Separation of Powers: A Constitutional Reality or a Political Myth?”

Jointly organised by the Royal Ipoh Club and Perak Bar Committee

5th February 2010

Royal Ipoh Club, Ballroom

3.00 – 3.10 pm Arrival of guests

3.10 – 3.20 pm Welcome Speech by Shan Theivanthiran, Chairperson, Perak Bar Committee

3.20 – 3.35 pm Why should I support the MyConstitution Campaign Movement? A briefing by the Constitutional Law Committee, Bar Council

3.35 – 3.45 pm Public airing of the Rakyat Service Advertisements 1 & 2

3.45 – 4.30 pm Keynote Speech by Dato’ NH Chan, retired Judge of the Court of Appeal

4.30 – 4.50 pm Media Conference

4:30 – 5:30pm Panel discussion and Q&A with Dato’ NH Chan, Amer Hamzah Arshad and other panelists


For further information, please contact the Perak Bar Secretariat at 05-2537950.

Forum "Natijah dari Krisis Perak" Anjuran MerdekaReview

Butiran:

Tema: Whither the Constitution? Lessons to be learnt from the Perak Crisis (English)
Tarikh: 9 Disember 2009 (Rabu)
Masa: 8 pm
Tempat: MBPJ Civic Centre Auditorium, Jalan Yong Shook Lin, Petaling Jaya.

Kedatangan dialu-alukan. Kemasukan adalah percuma.

Antara ahli panelnya termasuklah Professor Kevin Tan, Professor Shad Faruqi dan Mohd Nizar Jamaluddin.

Kevin Tan, graduan dari Yale University, seorang pensyarah di Singapura, dan juga Monash University di kampus Kuala Lumpur. Selain itu, beliau juga banyak menulis mengenai perlembagaan Malaysia dan Singapura.

Professor Shad Faruqi, pakar perlembagaan, dan juga penulis buku Document of Destiny. Selain mengajar di universiti tempatan, juga seorang kolumnis dalam akhbar Star.

Nizar Jamaluddin, Menteri Besar Pakatan Rakyat negeri Perak, merangkap ahli parlimen Bukit Gantang, Perak.

Sekali imbas, krisis Perak yang berlanjutan sehingga kini merupakan antara peristiwa yang paling penting dalam tahun 2009. Pergelutan kuasa antara Barisan Nasional dengan Pakatan Rakyat ini telah memberi impak yang besar kepada sistem politik Malaysia dari semua dimensi, termasuk kehakiman, pasukan keselamatan, perundangan, institusi Raja dan sebagainya.

Put Interest Of The Nation First

REFLECTING ON THE LAW

By SHAD SALEEM FARIQI

The Star, 20 May 2009

There are no winner-take-all solutions to the Perak political crisis, a hydra-headed monster that cannot be eliminated by ding-dong judicial decisions.

THE Perak political crisis can be likened to a malignant cancer that is voraciously spreading to the lymph nodes of our other institutions – the Sultanate, the judiciary, the federal executive, the civil service, the police, the law officers of the Crown, the court registry, the Anti-Corruption Commission and the Election Commission.

The longer we wait, the farther the affliction will spread. It is time, therefore, to stop this madness, this divisiveness, this polarisation.

There are no black and white, open and shut, or simple solutions.

The issues are so complex and so interconnected that arguments from both sides of the divide have depth and richness.

In sych a politically-charged situation, the courts cannot supply any satisfactory solutions. The judiciary is suited to resolving legal issues, not political ones.

The courts usually provide piecemeal solutions to simple, succinct questions.

But when there is a bottomless cesspool of polarising and contentious issues, no court, here or anywhere, can wipe away the discord and restore harmony and sanity.

Thus, even if after an agonizingly slow course of interim proceedings, ap peals and cross appeals there is an authoritative judicial determination of who the legitimate Mentri Besar is, a plethora of other connected is sues — each capable of toppling the apple cart — will still be left unaddressed.

Among the issues are the validity of the resignation letters by the three who opted out of Pakatan Rakat to be Independents friendly to Barisan Nasional; the unilateral power of the Speaker to declare Assembly seats vacant; and the power of the Election Commission to make a ruling on the same issue.

If there are calls for a vote of confidence on the floor of the House, the Speaker may frustrate it by disqualifying and barring 10 out of 59 members of the Assembly from attending the proceedings.

Is the Speaker subject to a restraining order from the court, or are proceedings in the Assembly immune from judicial interference?

If the result of a vote of confidence is influenced by exclusion of a large number of members, is the Sultan bound by it?

Or does he have any other way of determining the question of “confidence of the members of the Assembly”?

There are disagreements about the legal validity of the “assembly un der the tree” and the resolutions it passed.

The removal of V. Sivakumar as Perak Assembly Speaker and the installation of Datuk R. Ganesan as the new Speaker aroused deep revulsion and raised many legal issues.

The repeated dismissal and rein state ment of the Secretary of the Perak Assembly, the State Secretary and the State Legal Advisor pose ma ny queries.

Scores of local authority personnel have lost their jobs in the musical-chair manner in which governments are rising and falling in Pe rak.

Till a judicial decision is made on the validity of the removal and the rein­statement, there will be doubts about the legality of any decisions they may have made.

Partisan tactics by the police within the premises of the State Assembly raise constitutional issues of the sanctity and privileges of state as semblies.

The officers involved may one day have to appear before the Privileges Committee to answer charges of contempt.

In sum, the political crisis in Perak is like a hydra-headed monster that cannot be eliminated so easily by ding-dong judicial decisions.

Let us stop this insane and naked show of unprincipled politics.

Let us accept that in this stalemate, there are no winner-take-all solutions.

For this reason, recourse to the courts is pointless. The warring factions should negotiate and accommodate.

There are four more years to the next general election.

Barisan and Pakatan can agree to share two years each at the helm.

Alternatively, there is the political possibility of appointment of a neutral, caretaker government advising dissolution and state elections within 60 days from the date of dissolution.

There is the legal sledgehammer of federal intervention through an emergency proclamation under Arti cle 150 of the Federal Constitu tion, as happened in Sarawak in 1966 and Kelantan in 1977.

This may restore order out of chaos to pave the way for a state poll in due course of time.

The country as a whole is more important than the fate of Barisan or Pakatan in Perak.

In Rome, Nero played the fiddle while the city burned. We should not allow that to happen to us.

Perak politicians have no right to paralyse the rest of the country or to distract us from the many urgent and daunting tasks staring us in the face.

Among them are an economy reeling under the effects of the world financial turmoil, racial polarisation, the conflict between civil and syariah courts, and the deeply divisive is sue of religious conversion of minors upon one parent changing his or her religion.

The liberalisation of the economy requires deft handling. The review of such controversial laws as the ISA requires thorough con sultation and deep soul-searching. The education system is ripe for review.

Because of the shenanigans in Perak, the country is on the verge of a political precipice.

We are afraid both to climb or to fall. But the ground is slipping be neath us.

Quick action is needed.

The public is fed up with political intrigues and wishes a closure to this Perak temasya.

Perhaps the Conference of Rulers can exercise its powers under Article 38 (3) to discuss issues of national importance and to propose some via­ble solutions to the Perak crisis.

Perhaps the Yang di-Pertuan Agong can draw on his vast prerogative power to advise, caution and warn about the long-term effects of Perak to the integrity of our legal and political system.

Perhaps politically disinterested, towering personalities like Tun Musa Hitam or Tan Sri Razali Ismail could be roped in to broker peace and to stop this haemorrhaging of public trust.

We have had enough of political mudslinging and acrimony. We need to move on to the real problems and challenges of living.

Prof Dr Shad Saleem Faruqi is a Professor of Law at Universiti Teknologi Mara