Revisiting the Perak crisisYang Pei Keng
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 general election in 2008.
On 4 February 2009, the Pakatan Rakyat 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 then 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, February 6, 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 (left), 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 MB, 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 Menteri 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 MB Nizar to request for the dissolution of the state legislative assembly. But the Ruler turned down his request.
Under the law, the MB has no choice but “to tender the resignation of the Executive Council”: Article XVIII (6). It was for the MB to “tender the resignation of the Executive Council”. But the Sultan chose to ignore these provisions of the Constitution of Perak. He ordered the MB to resign from his post, when he has no power to do so.
If the MB 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 MB 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.
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.
‘The Independence of the Judges’
Here is a summary of a speech by N H Chan (right, pic courtesy: Loyarburok), the retired judge of the Court of Appeal during MyConstitution campaign conducted in Perak recently:
Many judges do not seem to know the term ‘the independence of the judges’.
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.” (‘The Family Story’, 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 assembly cannot be questioned in 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 MB 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 five 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 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….”
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.
The writer is a senior lawyer. This paper, a summary of an article by well-known retired judge, N H Chan, was presented at a forum entitled "The Case of the Two Perak MBs: The Crisis of Malaysian Consitutional System", held on May 15, 2010, Johor Baharu.
