Perak: Another mockery of justice coming up?

earlier Court of Appeal judgment doubtful

Kevin Tan who is Faculty of Law Professor (Adjunct) in the National University of Singapore — and obtained his LLM and JSD from Yale Law School — argues that the burden of judgment is for the Federal Court on the text of Perak Constitution, and three simple provisions contained therein. Hence, the Sultan should have dissolved the assembly upon Nizar’s request.

In a few days, the Federal Court will hear one of the most important constitutional appeals in recent times: Nizar Jamaluddin v Zambry Abd Kadir. While many readers are familiar with the facts leading to this appeal, it is useful to recapitulate the key events.

The resignation of three Pakatan Rakyat (PR) assemblymen in February this year left the ruling PR government with control over 28 seats in the Legislative Assembly (LA), the same number of seats controlled by the opposition Barisan Nasional (BN). This led the incumbent PKR Menteri Besar (MB) of Perak, Nizar to request Sultan Azlan Shah (HRH) on February 4, 2009 to dissolve the LA so that this numeric deadlock could be resolved. HRH took no immediate decision.

The following day, HRH met up with 31 members of the LA (including the three PR members who had earlier resigned), satisfied himself that all 31 of them supported Zambry as MB and proceeded to inform Nizar that he no longer commanded the LA’s confidence. Nizar was then asked to tender the resignation of the executive council. When Nizar did not comply, HRH’s office issued a press statement declaring the office of MB to be vacant and that Zambry had been appointed the new MB of Perak since he commanded the confidence of the majority of LA members. Nizar applied to the High Court for a declaration that he remained Perak’s MB.

On May 11, 2009, the Kuala Lumpur High Court ruled (per Abdul Aziz J) that since there had been no formal vote of confidence on the floor of LA, Nizar remained the rightful MB of Perak. Zambry appealed. The Court of Appeal unanimously reversed the High Court decision but it was some time before the three judgments were released. Two of them, those of Dato’ Raus Sharif and Dato’ Ahmad Maarop JJCA were released towards the end of June while that of Dato’ Zainun Ali JCA was released in early July.

The three lengthy judgments come up to some 240 pages in all and a large number of issues were canvassed and discussed. I had previously commented on the correctness of the High Court decision and having already discussed the contradictions that arose from the judgments of Raus and Maarop JJCA feel it timely to revisit the most salient issues in this case.