Monday 10 May 2010

The tussle between the Sultan of Perak and the Menteri Besar

Constitutional Crisis in Perak

-The tussle between the Sultan of Perak and the Menteri Besar

(Editor Note: A Senior lawyer PK Yang, upon the request from the forum organizing committee, has provide this summary of an article of the retired Court of Appeal Judge NH Chan. A compilation of this article as well as papers of the panelists will be made available at the Forum.)

(Note: The retired Court of Appeal Judge NH Chan wrote an analytical article entitled “The pretended power of dispensing with the law by regal authority – as perceived in the tussle between the Sultan of Perak and the Menteri Besar”. This is a summary of the article in a form that any ordinary person can read and understand -- Yang Pei Keng 15-5-2010.)

What has happened in Perak?

The well-respected former Judge NH Chan expressed his opinion openly that the Sultan of Perak as a constitutional monarch has no executive power. He has only discretion in the performance of his duty as a constitutional monarch.

The Sultan acted unconstitutionally when he exercised the executive power when solving the constitutional issues in the state of Perak, thereby creating a constitutional crisis in Perak.

The constitutional crisis came about as a result of the fight initiated by the Barisan Nasional for wresting political power from Pakatan Rakyat, the ruling coalition in the State of Perak after the March 8 General Election in 2008.

On 4 February 2009, the Pakatan Menteri Besar of Perak Mohamad Nizar, sought an audience with the Sultan of Perak, seeking the consent to dissolve the Perak State Assembly because three of their legislative members became turncoats.

On the following day, the Deputy Prime Minister Najib Razak, requested for an audience with the Sultan. He informed the Ruler that Barisan now had the majority in the state assembly. The Sultan then summoned all the 31 assemblymen to verify the information. Based on such information, the Sultan decided not to dissolve the state government as requested by the Pakatan Menteri Besar Mohamad Nizar .

“… the Sultan ordered … Nizar …to resign from his post as Perak Menteri Besar together with the members of the state executive council with immediate effect. If …Nizar… does not resign … then the posts of Menteri Besar and state executive council are regarded as vacant.”
(The Star 6-2-2009)


What is wrong with that?

It is wrong for the Sultan to see Najib alone without Nizar being present. In law, it is improper to see an interested party alone without the other side being present.
It was only after Najib had seen the Sultan that the Sultan informed Nizar that he had decided not to dissolve the state legislative assembly.

This was a fatal error that would affect the Sultan’s reputation and integrity. The general public might think that he was biased.

Nizar (as Menteri Besar of Perak) had requested the Sultan to dissolve the state legislative assembly. He has thereby admitted that he no longer commands the confidence of the majority in the assembly. The Ruler has a discretion not to grant it: Article XVIII (2)(b).

But the personal discretion (to grant or not to grant the request) should be exercised without any suggestion from any outsider. Otherwise, it would create an impression that he was partial to one political party. As the saying goes, justice should not only be done, but should be seen to be done.

“It is … of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” (Chief Justice Hewitt)

“Justice must be rooted in confidence: and confidence is destroyed when right minded people go away thinking: ‘The judge was biased’.” [Lord Denning (1969)]

That is why the people of Malaysia have been saying harsh words of the Sultan. They go away thinking that he has been influenced by Najib, or that he has favoured Barisan Nasional. It does not matter whether he did in fact favour one side unfairly.

The Ruler has acted unconstitutionally

The Sultan is a constitutional monarch. He has no power to rule, but he has a couple of discretionary powers mentioned in the Perak State Constitution (that is, the discretionary power to appoint Mentri Besar, and to withhold consent to a request to dissolve the legislative assembly: Article XVIII (2) .

The Sultan has no power to order Nizar “to resign …together with the state executive council with immediate effect”. Nor has he the power to declare that “the posts of Mentri Besar and state executive council are regarded as vacant.”

In former times, the executive government was the King. In present day Perak, the executive power is in the hands of the Executive Council of the legislative assembly.

It was lawful for Mentri Besar Nizar to request for the dissolution of the state legislative assembly. But the Ruler turned down his request.

Under the law, the Mentri Besar has no choice but “to tender the resignation of the Executive Council”: Article XVIII (6). It was for the Mentri Besar to “tender the resignation of the Executive Council”. But the Sultan chose to ignore these provisions of the Constitution of Perak. He ordered the Mentri Besar to resign from his post, when he has no power to do so.

If the Mentri Besar ceased “to command the confidence of the majority of the members of the Legislative Assembly” the Ruler has the power to appoint another “who, in his judgment, is likely to command the confidence of the majority of the members of the Assembly”: Article XVI(2)(a). This is a personal discretion of the Ruler.


No need to order Nizar to resign


Since the Ruler has the power to appoint another person as Mentri Besar to replace Nizar, there is no need for the Sultan to order Nizar to resign at all. This is a pretended show of power when in fact there is no such power.

The Mentri Besar Nizar should be allowed to tender the resignation of the Executive Council, without being hurried by the regal authority exercising a pretended power. The laws of the Constitution of Perak should be administered even handedly. But they were administered unequally, giving the impression that preferential treatment was shown to some persons.

The executive branch of the government cannot ignore the people’s call for justice and fair play. It can ignore the public opinion at its own peril. Unwillingness to heed the demands of public opinion can result in the loss of the mandate of the populace in the next election.




ANNEXURE 1

‘The Independence of the Judges’

(The keynote speech by Dato’ N H Chan, the retired judge of the Court of Appeal during MyConstitution campaign conducted in Perak recently. This is a summary of the speech made easy for any ordinary person to understand.)
Yang Pei Keng - 15 May 2010

Many judges do not seem to know

What does the term ‘the independence of the judges’ mean?

It appears that there are many of our judges today who do not seem to know the true meaning of “separation of powers” in constitutional law. This is most apparent especially among those judges in the higher echelon of the judicial hierarchy.

The bad judges seem to think that independence means that they can do what they like. The recalcitrant judges think that words can mean whatever they want them to mean. They think they could ignore the federal and the Perak constitutions, even the statutes enacted by Parliament, so long as they side with the government in power.

By so doing, these judges have exposed themselves because they have refused to perform their duty, which is to do justice according to law. It is their duty to do the right thing. The right thing to do is to deal out impartial justice and to apply the law of the land as it stands.

The notion of separation of powers, or the independence of the judges, seems to be beyond the comprehension of these judges.

When it comes to explaining the law so that it could be easily understood, the late Lord Denning had no equal. He explains the concept The independence of the judges in the following words:

“The keystone of the rule of law in England (and elsewhere) has been the independence of the judges. It is the only respect in which we make any real separation of powers. There is here no rigid separation between the legislative and the executive powers, because the ministers, who exercise the executive power, also direct a great deal of the legislative power of Parliament. But the judicial power is truly separate.

No member of the government, no member of Parliament, and no official of any government department, has any right whatever to direct or to influence or to interfere with the decisions of any of the judges. It is this knowledge that gives the people their confidence in the judges … The critical test which they must pass if they are to receive the confidence of the people is that, they must be independent of the executive.” [See ‘The Family Story’, at pp.191,192]

Rigid separation of powers


Shortly stated, the independence of the judges means that there is a rigid separation of powers between executive power and judicial power. The critical test which every judge must pass is that he must be independent of the executive. If a judge does not appear to be independent of the executive then he will lose the confidence of the people.

Haven’t you heard the often repeated remark, ‘I don’t respect our judges any more’ among the people of this country, ever since the Perak debacle exploded onto the local scene? Why do the people feel so strongly about this? It is because the keystone of the rule of law has been the independence of the judges.

Anyone can be a judge. All that you need is to be fair-minded yourself. Justice must not only be done, it must be seen to be done.

The other attribute of a judge is to administer justice according to law. Justice means that the judge’s duty is to do the right thing. The right thing to do is to deal out impartial justice. The right thing to do is also to apply the law as it stands.

The so-called Perak crisis has brought out a host of cases that showed that the judges gave the impression that they were one-sided. The perception of the people is that the judges sided with the BN government.

Proceedings in legislative assembly cannot be questioned in any court

‘The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court’: Article 72(1).

A classic example is the shocking case of Zambry v Sivakumar in the Federal Court. We all remember the infamous five (judges) [They were Alauddin Mohd Sheriff , Arifin Zakaria, Nik Hashim Ab Rahman, Augustine Paul and Ahmad Makinnuddin].

They decided in favour of the BN-appointed Mentri Besar Zambry. They held that the speaker of the Perak legislative assembly (V Sivakumar) has no power to suspend Zambry and six executive council members from attending the assembly.

This is a perverse decision of the Federal Court. It is perverse because it is a decision that was made in blatant defiance of the Federal Constitution.

The words in Article 72(1) mean exactly what they say. Even a child can understand them. Yet the infamous five chose to ignore the plain meaning of the words. They gave their own meaning to them. They said, under the pretext of interpretation, that the constitutional provision did not allow the speaker to suspend the seven applicants.

The 5 Federal Court judges have failed the people when they chose to ignore the law of the constitution of Malaysia. The judges have refused to do justice according to law.

Who are they to say that the speaker was not allowed to suspend the MB and the turncoats, when the supreme law of the land says ‘the validity of any proceedings in the legislative assembly of any state shall not be questioned in any court’?’

Privileges of Parliament

They have ignored “the privileges of Parliament”. ‘The Houses of Parliament enjoy certain privileges. ... Erskine May says: ‘What is said or done within the walls of Parliament cannot be enquired into in a court of law ’[See Lord Denning: The Family Story’, p.192]

Even ‘The Bill of Rights 1688, says that the freedom of speech and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.’: art. 9, s 1.

Those judges who had made all those decisions on the Perak crisis have created the confusion by refusing to apply the law of the land as it stands.

But to the good judges and the dedicated lawyers and to all right thinking people of this country, I urge all of you not to give up the struggle. Keep on commenting on their conduct in court. Keep on writing articles about their decisions that do not apply the law of the land as it stands.


NH CHAN was admitted to the Bar in 1961 and was a lawyer for almost two decades before becoming a High Court judge. He was then elevated to the Court of Appeal before retiring in 2000. He is the author of two books, ‘Judging the Judges’ (2007) and ‘How to Judge the Judges’.

NH Chan has this to say about ISA and Sedition Act

“I don’t approve of the death penalty because it is a barbaric practice and not worthy of civilized behaviour, the ISA and the Sedition Act, because they are draconian laws, more in step with a dictatorship or a totalitarian form of government – such laws have no place in a democracy of a civlised nation.

However, during times of conflict of war, such laws are necessary to contain enemy aliens but only on an ad hoc basis. They should never be used against the citizens of a country. Only a tyrant in a dictatorship or a despotic king would inflict such laws on its own people. Civilized people do not do so….”

[From Loyarburok Interview: NH Chan (Part 2) – 25 Feb 2010]

NH Chan’s view on: power of the vote

Seething over the events that transpired in Perak and decisions of the apex court, he says that if Malaysians are upset with the state of the judiciary and think that the present crop of judges are not up to the mark, they should exercise the power of their vote to change the state of affairs in the country.


[From Loyarburok interview - “N H Chan: an inconvenient judge”
- 30 April 2010 ]

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工委会议决:将徐袖珉除名

人民之友工委会2020年9月27日常月会议针对徐袖珉(英文名: See Siew Min)半年多以来胡闹的问题,议决如下:

鉴于徐袖珉长期以来顽固推行她的“颜色革命”理念和“舔美仇华”思想,蓄意扰乱人民之友一贯以来的“反对霸权主义,反对种族主义”政治立场,阴谋分化甚至瓦解人民之友推动真正民主改革的思想阵地,人民之友工委会经过长时间的考察和验证,在2020年9月27日会议议决;为了明确人民之友创立以来的政治立场以及贯彻人民之友现阶段以及今后的政治主张,必须将徐袖珉从工委会名单上除名,并在人民之友部落格发出通告,以绝后患。

2020年9月27日发布



[ 漫画新解 ]
新冠病毒疫情下的马来西亚
舔美精神患者的状态

年轻一辈人民之友有感而作


注:这“漫画新解”是反映一名自诩“智慧高人一等”而且“精于民主理论”的老姐又再突发奇想地运用她所学会的一丁点“颜色革命”理论和伎俩来征服人民之友队伍里的学弟学妹们的心理状态——她在10多年前曾在队伍里因时时表现自己是超群精英,事事都要别人服从她的意愿而人人“惊而远之”,她因此而被挤出队伍近10年之久。

她在三年前被一名年长工委推介,重新加入人民之友队伍。可是,就在今年年初她又再故态复萌,尤其是在3月以来,不断利用部落格的贴文,任意扭曲而胡说八道。起初,还以“不同意见者”的姿态出现,以博取一些不明就里的队友对她的同情和支持,后来,她发现了她的欺骗伎俩无法得逞之后,索性撤下了假面具,对人民之友一贯的“反对霸权主义、反对种族主义”的政治立场,发出歇斯底里的叫嚣,而暴露她设想人民之友“改旗易帜”的真面目!

尤其是在新冠病毒疫情(COVID-19)课题上,她公然猖狂跟人民之友的政治立场对着干,指责人民之友服务于中国文宣或大中华,是 “中国海外统治部”、“中华小红卫兵”等等等等。她甚至通过强硬粗暴手段擅自把我们的WhatsApp群组名称“Sahabat Rakyat Malaysia”改为“吐槽美国样衰俱乐部”这样的无耻行动也做得出来。她的这种种露骨的表现足以说明了她是一名赤裸裸的“反中仇华”份子。

其实,在我们年轻队友看来,这名嘲讽我们“浪费了20年青春”[人民之友成立至今近20年(2001-9-9迄今)]并想要“拯救我们年轻工委”的这位“徐大姐”,她的思想依然停留在20年前的上个世纪。她初始或许是不自觉接受了“西方民主”和“颜色革命”思想的培养,而如今却是自觉地为维护美国的全球霸权统治而与反对美国霸权支配全球的中国人民和全世界各国(包括马来西亚)人民为敌。她是那么狂妄自大,却是多么幼稚可笑啊!

她所说的“你们浪费了20年青春”正好送回给她和她的跟班,让他们把她的这句话吞到自己的肚子里去!


[ 漫画新解 ]
新冠病毒疫情下的马来西亚
"公知"及其跟班的精神面貌

注:这“漫画新解”是与<人民之友>4月24日转贴的美国政客叫嚣“围剿中国”煽动颠覆各国民间和组织 >(原标题为<当心!爱国队伍里混进了这些奸细……>)这篇文章有关联的。这篇文章作者沈逸所说的“已被欧美政治认同洗脑的‘精神欧美人’”正是马来西亚“公知”及其跟班的精神面貌的另一种写照!




[ 漫画新解 ]
新冠病毒疫情下的马来西亚
"舔美"狗狗的角色

编辑 / 来源:人民之友 / 网络图库

注:这“漫画新解”是与《察网》4月22日刊林爱玥专栏文章<公知与鲁迅之间 隔着整整一个中国 >这篇文章有关联的,这是由于这篇文章所述说的中国公知,很明显是跟这组漫画所描绘的马来西亚的“舔美”狗狗,有着孪生兄弟姐妹的亲密关系。

欲知其中详情,敬请点击、阅读上述文章内容,再理解、品味以下漫画的含义。这篇文章和漫画贴出后,引起激烈反响,有人竟然对号入座,暴跳如雷且发出恐吓,众多读者纷纷叫好且鼓励加油。编辑部特此接受一名网友建议:在显著的布告栏内贴出,方便网友搜索、浏览,以扩大宣传教育效果。谢谢关注!谢谢鼓励!












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