The Federal Court in Nizar v Zambry: A critique

The Federal Court in Nizar v Zambry: A critique
19 February, 2010
By NH Chan – loyarburok.com

On 9 February 2010 the Federal Court (Alauddin Mohd Sheriff PCA, Arifin Zakaria CJ (Malaya), Zulkefli Ahmad Makinudin, Mohd Ghazali Mohd Yusoff and Abdul Hamid Embong FCJJ) handed down a unanimous decision on Nizar v Zambry. The judgment of the court was read by Chief Judge, Malaya Arifin *Zakaria.

The judgment is 40 pages long on A4 size paper and if you have the stamina to persevere to the end of the judgment you would have realized that these judges of the highest court in the land have, under the pretext of interpretation, decided that the Sultan of Perak has the power to dismiss the incumbent Menteri Besar Nizar when the Laws of the Constitution of Perak does not confer any executive power on the Sultan for so doing.

If the Sultan has no power to dismiss Nizar then, we should ask, how could the Federal Court commit suck a devastating error to their reputation as judges of the highest court in the land?

The inability of these judges to pick out the one real point that matters

That is why the ability to pick out the one real point that matters is so important. That is why young advocates learnt how to spot it very early in their career if they are not to bore the judge, whom they are addressing, to tears. This is what Sir Patrick Hastings – he was one of the great advocates of his day before and after World War II – had to say about the ability to seize upon the one vital point that is to be found in any case; see his book Cases in Court, p 333:

“The ability to pick out the one real point of a case is not by itself enough; it is the courage required to seize upon that point to the exclusion of all others that is of real importance.”

The late Lord Justice Salmon in his article, Some Thoughts on the Traditions of the English Bar, was also of the same view. He said:

But remember this, in few cases, however complex, is there usually more than one point that matters. Very seldom are there more than two and never, well hardly ever, more than three. Discover the points that really matter. Stick to them and discard the rest. Nothing is more irritating to a tribunal than the advocate who takes every point possible and impossible. To do so is a very poor form of advocacy because the good points are apt to be swept away with the bad ones. Stick to what matters.

In the case of Nizar v Zambry, the only point that matters in the appeal is whether the Sultan of Perak has any executive power to remove a Menteri Besar who had been appointed by him under Article 16(2)(a).

Any astute lawyer or judge can see at once that there is only one point that matters in the appeal, and that point is whether the Sultan of Perak has any executive power to sack his Menteri Besar and to appoint another to take his place. Yet these five myopic Federal Court judges were unable to see that this is the only point that matters in the appeal when every budding young lawyer knows about it instinctively.

These five myopic judges were lost in a quagmire of confused thinking caused by their own incompetence. They found themselves deep in the forest unable to see the wood for the trees. Does this mean that we have a bunch of incompetent judges who sit in the highest court in the land?

What now for Perak?

What now for Perak?
Feb 17, 2010 – Sun

PETALING JAYA (Feb 17, 2010) : The court may have decided that the Barisan Nasional (BN) can continue to rule in Perak after a year of legal battles following Pakatan Rakyat (PR)’s ouster but the war between them is far from over and it is unlikely to be until the next general election.

On Feb 9, the Federal Court ruled that BN’s Datuk Seri Dr Zambry Abdul Kadir is the Perak Mentri Besar and by so doing rejected the claim of PR’s Datuk Seri Mohammad Nizar Jamaluddin that he is still the state’s chief executive.

Zambry came to power in February last year on claims that Nizar had lost his majority in the 59-seat state assembly after three PR — two from Parti Keadilan Rakyat and one from DAP — representatives quit their parties and declared themselves BN- friendly independents.

For exactly one year Perak was hardly off the national radar as all kinds of events were played out by those who were elected to serve the rakyat. There were sensational court cases, state assembly sitting under a tree, and capping it all was when former speaker Sivakumar was dragged out of his chair in the “august” chamber of the representatives of the rakyat.

Amidst all the drama and grandstanding voices demanding that the rakyat be the final arbiter were heard. But their angry voices went unheeded. And now the PR and Nizar are rekindling that anger while the BN and Zambry are hoping to win support with their benevolence.

When contacted to comment about the future of the state, political analyst Khoo Kay Peng told theSun that generally, the court ruling cannot help to solve the political impasse in the state.

“We need a solution which is acceptable to both coalitions. The only solution is to call for a fresh mandate. Hence, the state assembly will remain a war zone for both coalitions.

Politically legitimacy also means that the ‘victory’ is accepted and respected by the opposition,” he said.

Khoo speculated that BN will continue to spend its way into Perakians’ heart as it will continue to focus on providing grants and subsidies for a variety of social and community organisations and schools.

However, he said there is only so much the coalition can achieve through its developmental politics because what the people wanted is a respect of their democratic choice.

“This has been proven in a poll by Merdeka Centre where 70% of respondents wanted a fresh state election. Hence, the best way for BN to survive the next general election is to prove to the voters that it is pro-democracy.

“It should promise to respect the people’s mandate and ensure that it will not engineer another power grab in the future,” he said.

Did the Federal Court contradict itself in Perak MB ruling?

Did the Federal Court contradict itself in Perak MB ruling?
By Debra Chong
Feb 9 2010 – Malaysian Insider

KUALA LUMPUR, Feb 9 — The Federal Court today may have denied Datuk Seri Nizar Jamaluddin his Perak mentri besar’s post but its just-released collective written judgment is apparently riddled with contradictions, a retired judge said.

Nizar, 53, who had previously been declared the rightful mentri besar, lost the job when a three-man panel of Court of Appeal judges reversed the High Court’s decision last May 22.

The Pasir Panjang assemblyman then took it to the Federal Court and asked the Bench to address three issues based on the Perak Constitution, which, in plain English, translates to:

1. Whether the MB’s post is vacant when he did not resign; none of his peers had passed a vote of no confidence against him; he had asked the Sultan to dissolve the state assembly and start the process for fresh elections and was rejected.

2. Who decides that he has lost the confidence of the state assembly?

3. Who has the right to sack him if he refuses to resign?

The five apex court judges who replied were Tan Sri Alauddin Mohd Sheriff, Tan Sri Arifin Zakaria, Datuk Zulkefli Ahmad Makinuddin, Datuk Wira Ghazali Mohd Yusoff and Datuk Abdull Hamid Embong.

In declaring Datuk Seri Zambry Abd Kadir the rightful Perak MB, the coram summarised their reply, found at the end of 40-pages, as follows:

• Yes. (To quote: “The answer to the first question will be in the affirmative;)

• Yes. (“As for the second question, our answer is that under Article XVI(6) the question of confidence in the MB may be determined by means other than a vote of no-confidence in the LA;”)

• Yes. (“As for the third question our answer is that if the MB refuses to tender the resignation of the Executive Council under Article XVI(6) the MB and the Executive Council members are deemed to have vacated their respective offices.”)

But a closer look at the full judgment, made available to reporters a few hours after the decision was pronounced in Putrajaya, showed several seemingly contradicting statements, prompting a former judge to question the soundness of the top court’s reasoning in one of the most critical cases to affect the highest law of the land — the constitution.