Dato' Seri Dr Zambry's appeal - my honest analysis

Salam Sejahtera,

Jika diizinkan, saya memohon untuk menulis di dalam Bahasa Inggeris analisa saya terhadap keputusan Mahkamah Rayuan petang tadi. Saya akan cuba sedaya upaya untuk menerangkan dengan semudah-mudahnya untuk kepentingan pembaca blog saya.

1. Today's decision by the Court of Appeal is another high-watermark case on Constitutional law in Malaysia. It not only proves the point that I have been trying to make all along, but has placed Malaysian Constitutional jurisprudence at par with other Commonwealth countries, to wit a few, Australia, Canada and England itself, that the constitutional logic of the Constitution of Perak and the democratic imperative upon which the Constitution of Perak is based on the following thesis that "If a Mentri Besar ceases to command the confidence of the majority of the Assembly, that officer has lost his democratic justification for remaining in power since he no longer has the confidence of a majority of the representatives of the people". The case of Adegbenro v Akintola [1963] AC 614, at 628, per Viscount Radcliffe succintly states: "It recognises also one other principle that has come to be accepted in the United Kingdom: that, subject to questions as to the right of dissolution adn appeal to the electorate, a Prime Minister ought not to remain in office as such once it has been established that he has ceased to command the support of a majority of the House". What it means, in layman's term is simply this, that YB Dato' Seri Ir Nizar should have resigned the day he met HRH the Sultan of Perak on 4th February 2009. His defiance on that day has dragged the constitutional crisis to where it was until the Court of Appeal decided today!

2. The powers to grant a dissolution of Dewan Negeri Perak and to appoint the Mentri Besar and State Executive Council members are among the prerogatives of HRH the Sultan of Perak. Consensus amongst parliamentarians and commentators is that there are instances in which the Monarch may refuse to grant a dissolution, especially to a minority government. For example, minority Labour Government of Ramsay McDonald requested for a dissolution, Herbert Asquith (Prime Minister between 1908 and 1916) stated in The Times for 19 december 1923, which was quoted with approval in Marshall, Constitutional Conventions (1986), at 38: "The Crown is not bound to take the advice of a particular minister to put its subjects to tumult an dturmoil of a series of general elections so long as it can find other ministers who are prepared to give it a trial. The notion that a Minister - a Minister who cannot command a majority on the House of Commons - is invested with the right to demand a dissolution is as subversive of constitutional usage as it would, in my opinion, be pernicious to the general and paramount interests of the nation at large." In Canada, Governor General, Lord Byng, in 1926 refused to grant a dissolution to Prime Minister King after the latter's government had lost the support of members of other parties who provided its majority. There was no vote of confidence, but Prime Minsiter King imemdiately resigned. Mr Meighen, the opposition leader was invited form a government (see Hogg, Constitutional Law of Canada, 5th ed, at 9-30). Thus, the lauds and cries for 'Bubar Dewan' by fellow opposition members of 'Pakatan Pembangkang' are not only pernicious but has created deep division amongst the people of Perak. In hindsight, if YB Dato' Seri Ir Nizar has conceeded defeat on 4th February 2009, the people of Perak would not have to pay the heavy price of confusion, humilation and frustration the culmination of all was the the 7th May 2009 sitting.

3. Article 16(6) of the Perak Constitution, in pith and substance, read in its entirety is far from ambiguous. It requires the Mentri Besar to tender his resignation of the Executive Council (which, by defintion, includes Mentri Besar) if he 'ceases to command the confidence of the majority of the members of the Legislative Assembly' otherwise, his position is vacated constitutionally. The case of Datuk (Datu) Amir Kahar bin Tun Datu Haji Mustapha v Tun Mohd Said bin Keruak & 8 ors [1995] 1 CLJ 184, is now given the salutary recognition by the Court of Appeal, thus distinguishing the case of Stephen Kalong Ningkan on facts. It says: "...that if the Chief Minsiter does not tender the resignation of the other members of his cabinet wherein the Cabinet is to be treated as dissolved under the circumstances envisaged by Article 7(1) of the Constitution, their offices are deemed to have been vacated." Precisely the point I have been making throughout my interviews, sessions and talks. In short, when YB Dato' Seri Ir Nizar 'defied' the advise by HRH the Sultan of Perak to tender the resignation of his EXCO, his position as Mentri Besar ipso facto being vacated on 4th February 2009.

4. There is no requirement for a formal vote of no confidence in order to determine whether a Mentri Besar or Premier has lost confidence of the Legislature. The case of Datuk (Datu) Amir Kahar, supra, is the leading authority when it states: "...may be found from other extraneous sources than to be confined to the votes taken in the Legislative Assembly provided that the extraneous sources are properly established...The expression of lost of confidence is not, therefore, confined to a vote taken in the Assembly but depending on the circumstances, which are capable of contributing sufficient evidence to indicate such a lack of confidence." Viscound Radcliffe, in Adegbenro, supra, at 629 stated: "in democratic politics speecehs or writings outside the House, party meetings, speeches or activities inside the House short of actual voting are all capable of contributing evidence to indicate what action this or that member has decided to take when and if he is called upon to vote in the House, and it appears to their Lordships somewhat unreal to try to draw a frim dividing line between votes and other demonstrations where the issue of 'support' is concerned." What it means, in plain English is this, a Mentri Besar may lose his confidence, in appropriate circumstances, outside Dewan and if that happens, it is mandatory (by the use of the word 'shall') upon him to do the gracious exit for the sake of constitutional principle, logic and common sense. Thus, YB Dato' Seri Ir Nizar should have tendered the resignation of his EXCO on 4th February 2009 which he defiantly refused to do so and clamoured, by intention or forced, with the mantras of 'Bubar Dewan'.

Dedication: This piece of literary, albeit, drafted by me in my quite room at my humble abode, is the manifestation of clear conscience, belief, persistence, dedication, unwavering support/teamwork, hardwork and sacrifice of all my BN Perak legal team members listed on my blog who had stood by me, in good and bad times, when all in the world (except our 'political masters', friends and families) are looking at us as the 'robbers of the majority voice of the people' BUT , we remained firm, united and with 1Voice when we entered each and every court rooms, meeting rooms and conference rooms. To this, I salute you all my friends for I am none other that your first among equals and nothing more!

I sincerely hope and pray that there will never be a time again when we have to travel afar, leaving all that we have in our life and practice, either in Malaysia or overseas for something which could have been avoided IF and only IF the non-BN Assemblymen believed and make-believe that the coveted positions as Assemblymen or Parliamentarians is nothing but the trust placed onto you to protect and uphold the Constitution above all.