MB vs MB: Federal Court of judicial pillars or political stooges?

by Kim Quek
The court decision is expected to define the King-Prime Minister-Parliament nexus although the case is over the Perak constitutional crisis. A decision in favour of Zambry will mean that in future the King is vested with the power to sack a Prime Minister and without the involvement of Parliament.
There was deep disappointment when the Federal Court panel of five sat on Nov 5 to hear the Nizar vs Zambry appeal, immediately after rejecting Nizar Jamaluddin’s request for a full panel to hear the case.
The appearance of the five judges alone was sufficient to impart the sense of foregone conclusion, for these are familiar faces that appeared in the series of hearings of the Federal Court held in respect of the current Perak constitutional crisis, and they all seemed to lean towards the Barisan Nasional.
The first three – Alauddin Sheriff, Arifin Zakaria and Zulkefli Makinudin – are virtually permanent fixtures in the ‘Perak cases’, while the remaining two – Ghazali Yusoff and Hamid Embong – have also been involved. One cannot help but wonder: What happened to the rest of the judges? Why can’t we have fresh faces to also impart their wisdom over such a grave constitutional crisis?
What about the eminent Chief Judge of Sabah and Sarawak, Richard Malanjum, whose seniority is only next to Alauddin (President of the Court of Appeal), and whose judgments often won admiration of the legal fraternity and the general public alike. He has not sat in a single case. Why should the country be deprived of the opportunity of tapping into his rich experience and much valued judgment?
Then, what about our very senior Justice Gopal Sri Ram – an appellate court judge since 1994 – who is distinguished by his deep legal knowledge and sound judgment delivered without fear or favour.
Surely the participation of Malanjum and Sri Ram will restore some credibility to the judicial system. Where public opinion is concerned, this institution is already teetering on total mistrust, thanks to the long string of judicial decisions which have been perceived as blatantly biased and politically partisan since the crisis started in March this year.

Show of arrogance to reject full panel

This is the third time that the Federal Court rejected Nizar’s request for a full panel. And what irked the public is the court’s arrogance in rejecting the earnest, compelling and unassailable plea from the lawyers without bothering to offer its reasons for the rejection.
That the coming court decision will be of paramount importance is underlined by the fact that it is expected to define the power limits and the inter-relationships of the triangle of King-Prime Minister-Parliament, though the case is over the Perak constitutional crisis. This is because state constitution and federal constitution are similar in these aspects of the law.
An affirmative decision in favour of Zambry will mean that in future the King is vested with the power to sack a Prime Minister. More than that, he can do so without the involvement of Parliament. This of course will mean the negation of the fundamental principles of democracy upon which this nation was founded.
Facing such a momentous decision, is it too much to ask for a full panel, or at least as wide a spectrum of judges as possible, to deliberate on an issue which may make or break our democratic system of government?
Since the Federal Court has convened panels of seven judges to hear drug-related cases in the past, why can’t it convene a bigger panel for this current case, since the issues involved are many times more important?
And why make the ‘Perak cases’ the exclusive domain of the few judges who are already looked upon with increasing dismay by the public for their perceived political partisanship? Why meticulously keep these cases out of bound to the well regarded judges?
Doesn’t Chief Justice Zaki Azmi, who only a short while ago was an Umno stalwart, owe the nation answers to these perplexing questions?
Court of Appeal erred
The court completed hearing – in one single day of Nov 5 – the submissions from the lawyers of both the Appellant (Nizar) and the Respondent (Zambry) as well as from Attorney-General Gani Patail. The latter appeared as intervener to help interpret the Perak and federal constitution, though in actual fact, he acted more like an attorney for the Respondent.
The arguments from both sides are largely repetitions of those presented in May in the lower courts, with the exception of the Appellant putting in some fresh arguments.
A new input was that the Sultan should not have taken upon himself to interpret the constitution like what he did in his press statement of Feb 5 that considered the posts of Menteri Besar and his exco vacant if they refused to resign. Interpretation of the constitution should be left to the court.
Another point was that as a constitutional monarch, the Ruler was duty bound to take advice only from his Menteri Besar – not any other including then Deputy Prime Minister Najib Razak.
The bulwark of the Appellant’s case, as submitted in the lower courts, remains that the Sultan is not empowered under the constitution to dismiss a Menteri Besar, and that only the assembly, through a vote of confidence, can dismiss him. The Appellant also hammered home the point that the Court of Appeal’s rejection of Nizar as the rightful MB was flawed in that it had failed to take cognizance of the fundamental findings of High Court judge Aziz Rahim.
And the Respondent continues to maintain his contention that BN had the support of the majority of assemblymen and that the Sultan is entitled to determine which party had the majority support, stressing that nothing in the Perak constitution stipulates that such determination of support must be made on the assembly floor.
AG Gani Patail said the Ruler had taken upon himself to determine who had the majority support. He said: “A press statement issued by the Perak ruler revealed this, where he was satisfied that BN had the majority, and therefore, Nizar’s post – despite his refusal to resign – was deemed vacant”.
Note how Gani avoided using the word “dismiss” on Nizar. In fact, none of Zambry’s lawyers or Appellate Court judges had claimed that the Ruler had the power to dismiss Nizar. They only claimed that Nizar’s post had become vacant.
But without Nizar resigning, how could the post become vacant, and how could the Ruler appoint another Menteri Besar? This is the mother of all questions that the judges must answer before any one can rule that Nizar has lost his post.
Extreme treatment against Nizar unjustified
On reflection of the Respondent’s case, perhaps we should explore a new perspective. Let us ask: What has Nizar done to deserve such extra-ordinary treatment – his support being ascertained by the Ruler personally, ordered to resign immediately, failing which his post was “deemed vacant”? Had Nizar caused our democratic system of government to come to a dead end, which would have been the case if he had lost the majority support and yet clinging on to power by
a) failing to advise the Ruler to dissolve the assembly, and
b) refusing to subject himself to a vote of no confidence?
Did Nizar do any of the above? No! In fact, he did the opposite. He repeatedly advised the Ruler to dissolve the assembly due to a stalemate, but was turned down. He wanted an emergency session of the legislature to resolve the stalemate; that was also turned down.
Since Nizar had committed none of the sins against the principles of democracy as enshrined in our constitution, so to speak, what justification was there to subject him and his cabinet to such extreme treatment as described?
It begs these further questions: Why was the Ruler in such a hurry that he couldn’t wait for a short while to let the assembly meet to resolve the impasse?
And why did he reject his Menteri Besar’s advice to dissolve the assembly when it was apparent that there was a political impasse – a classic case of instability which is always resolved by returning the mandate to the electorate? Granted that the Ruler has the discretionary power to withhold consent to the dissolution of legislature, but should a constitutional monarch exercise that power without accountability?
The time has come for our highest court to put things right. This is a rare opportunity for our judiciary to redeem its tattered image and for the judges to shine with their judicial integrity.
The stakes involved are so high and grave that whatever decisions they make, each and every one of the panel should have the courage and dignity to stand up for their views for which they must write their individual judgments, unlike the recent practice of hiding under a single judgment, claiming it to be a unanimous decision.