The Judgments

Justice Abdul Rahim Abdul Aziz on His Honour's Judgment for Nizar (words in square brackets added by me):



"... There is no ambiguity in the language of clause 7 [of Article 16 of the Perak constitution]. The clause simply provides that, except for the menteri besar, other members of the exco hold office at the pleasure of His Royal Highness (the sultan of Perak). This means the exco members except the menteri besar can be removed by the sultan on advice of the menteri besar ..."



"... In my view, no matter how mandatory is the word 'shall' in Article 16(6) it cannnot be read to mean that the office of menteri besar becomes or is deemed to be vacant if the chief executive refuses to resign ... It is obvious that there is a lacuna (gap) in the said Article. But that lacuna cannot be filled up by reading into the Article a deeming provision. The lacuna must be filled up by [an] amendment to the said Article ..."



"... It is true the request [to dissolve the state legislative assembly] may be made only under two provisions of the Perak constitution, [which] is Article 16(6) and Article 36(1) and (2). But the circumstances under which the request can be made is unlimited ... It is up to the menteri besar to choose his time to make the request. However, once a request is made under whichever of the two provisions, it is entirely up to the sultan's discretion to [grant the dissolution of the legislative assembly of otherwise] ..."



"... In this case, His Royal Highness, through His enquiries, has judged that the respondent (Zambry) has the support of the majority. But that finding does not necessarily mean His Royal Highness can form an opinion [that] the applicant (Nizar) ceases to command the confidence of the majority ... I would say [that] the personal judgment or opinion of His Royal Highness is irrelevant to the construction of Article 16(6). It is the legislative assembly that determines whether it has confidence in the menteri besar as the head of the executive council ..."



"... It is my opinion that the dismissal of the menteri besar by His Royal Highness or by anyone else is never contemplated under Article 16(6) of the Perak constitution ..."



"... [To summon the Perak assembly for a special sitting so that a motion of no confidence could be tabled and passed against the applicant (Nizar)] would be more in accord with the democratic principles and practices. For the above reasons and circumstances, I am of the view that the office of menteri besar of Perak has not become vacant and vacated ..."



Read the full judgment here (courtesy of Malaysiakini)



This is what I would call intelligent argument with the support of facts and logic. It is very difficult to rebutt arguments of such intellectual level. Unless, of course, one does not subsribe to the idea of civilised intelligence and the refined manner of arguing one's case. Let us now take a look at how this arguably convincing judgment was overturned, and the 'intelligence' (or the lack of) it employs.



Justice Md Raus Sharif, leading a three-member bench:



"... The learned High Court judge had failed to properly and adequately appreciate the entire evidence before him, and that rendered the decision as wrong ..."



"... We hold the view that the granting or the witholding of the request for the dissolution of the state legislative assembly is the royal prerogative ... On the facts of this case, the request for the dissolution of the state legislative assembly was made under Article 16(6) of the Perak constitution and not under Article 36 of the constitution ..."



"... There is no mandatory or expressed requirement of the Perak constitution that provides that there must be a motion of no-confidence to be tabled against the respondent (Nizar) before deciding that he had ceased to command the majority confidence of the state legislative assembly ..."



And that's about all that could be derived from the five-minute oral judgment. In fact, from what I see, the learned judge himself is so unconvinced by his own judgment, he needed another week to convince himself to write down what took him just five minutes to utter.



For starters, I was down with dengue for a week and a further four with catching-up in work, hence the back-dated topic of this. Anyway, Nizar has filed a final appeal with the apex court, still without the written judgment from Justice Md Raus Sharif. Either His Honour is too busy with work or he's still struggling to overcome taunts of his own moral-conscience to come up with the written judgment. And judging from the way Anwar's Sodomee II case is currently being played out, Nizar might have to wait until after the next GE, when I think more than half of the peninsular states will fall into the hands of Pakatan Rakyat, before he could get his written judgment. Or, possibly, Nizar might have to remind the courts again then that a certain Justice Md Raus Sharif still owes him a written judgment, due a good few years back, when the BN engineers another or two of Pakatan Rakyat's legitimately won states.

Ada paavi...