60 per cent funding ‘diverted’

By Jacob Achoi

MACC exposes abuse, flaw in spending of allocations for certain projects in Sarawak

KUCHING: The Malaysian Anti-Corruption Commission (MACC) Sarawak has uncovered government projects in the state where up to 60 per cent of their funding were diverted elsewhere.This startling finding was revealed by MACC deputy chief commissioner (prevention) Datuk Zakaria Jaffar here yesterday, but he did not divulge the extent of such abuses.

“Based on the investigations the Sarawak MACC carried out on specific and real cases (projects), only about 40 per cent of the allocations were spent while the remaining 60 per cent is ‘bocor’ (leaked out),” he said.

He said this at a press conference after closing a corruption prevention seminar at a hotel here.

State MACC director Samsiah Abu Bakar and Chief Minister’s Department Human Resource Management Unit principal assistant director Malcolm Yong were among those present.

According to Zakaria, the investigations were carried out on some completed projects between 2002 and last year.

Without disclosing where the projects were and the number of projects investigated, he said they included roads, low-cost houses and mosques.

Zakaria pointed out that while some projects were poorly completed, there were others that never took-off although payment was made.

“When we talk about development projects in the state, there are many cases of fake claims, whether it involves the officers or the contractors,” Zakaria pointed out.

He also told reporters that there were instances whereby contractors got allocations from members of parliament (MPs) and assemblymen for the same projects.

He explained that a project might cost about RM15,000, but the contractor would bid for that amount from both the MP and the assemblyman, thus the contractor would earn 100 per cent profit.

He said the MACC from next year would conduct a seminar for contractors and also MPs and assemblymen.

He suggested that the Sarawak MACC hold such seminars with the state elected representatives, both MPs and assemblymen next year, on allocation for development projects.

Zakaria also urged the public to help MACC fight corruption, adding that the commission could not fight graft all alone.

He said MACC would embark on education to inform the public the importance of their role to help fight graft.

Samsiah, when asked at the press conference whether the state MACC was also investigating ‘high profile’ cases, replied: “Just wait.”

She also said the seminar with the elected representatives from the state would be held from next year.

Yong, meanwhile, pointed out that the state had received a clean bill of financial health from the auditor-general for seven consecutive years.

He said even though there were projects that did not meet the specifications and criteria, the overall picture of the state development projects, both federal and state projects, were completed satisfactorily.

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Umno losing faith in Barisan partners

KUALA LUMPUR, Oct 3 — Umno’s patience and confidence with the current power-sharing agreement with its partners in Barisan Nasional is wearing thin, judging by sentiments expressed during a closed-door retreat in Janda Baik.

During this rare three-day gathering of Umno divisions, which ended yesterday, a common refrain heard was that Umno should be less generous in giving up Malay-majority seats to representatives of MCA, MIC, Gerakan and other component parties.

The general view among division chiefs was that the component parties were much weaker than Umno and would not be able to swing votes from the non-Malays or the Malays.

In contrast, a strong Umno was better placed to win in Malay-majority seats.

The Malaysian Insider understands that party president Datuk Seri Najib Razak and senior party officials who attended the retreat — aimed at boosting the morale of grassroots leaders — were non-committal on the request for Umno to be less charitable in seat allocation with BN component parties.

If they do agree, it would represent a major departure from the power-sharing agreement that has been the hallmark of the BN coalition, and could be the death knell of MCA, MIC, PPP and Gerakan — political parties which have been allowed to field candidates in Malay-majority seats across Peninsular Malaysia.

Several Umno officials who attended the retreat told The Malaysian Insider that the most important consideration should be to field a candidate who can enhance the possibility of victory at the next general election.

“If a seat has 55 or 60 per cent Malay voters, it makes sense to field an Umno candidate. In the last election, we gave seats in Perak and Selangor to other parties and they were not able to deliver.

"These parties still have internal issues and will not be able to deliver the votes from the non-Malays. So it will be better if an Umno candidate is fielded to try and get the maximum possible support from Malay voters,” said an official, who requested anonymity due to the retreat being a closed-door affair.

During the retreat, officials were also in agreement that Umno’s/BN’s fortunes rested on the ruling party strengthening its standing among Malay voters — a backhanded acknowledgment that it was not pinning much hopes on getting support from non-Malays at the next general election.

This sentiment is consistent with the growing right-wing tendencies that party officials have exhibited in recent months.

There was little substantive discussion on how the party can reach out to Chinese and Indians who Umno officials have alienated in recent months.

Still, the mood during the retreat was one of optimism with Kelantan Umno declaring that it would be able to snare the state from PAS at the next polls. PAS has been helming the state since 1990 but Umno officials from Kelantan believe that the momentum is swinging their way.

Also confident was Perak’s Datuk Zambry Abdul Kadir. Beneficiary of a power grab, he was certain that Umno/BN would be able to hold on to the state.

Less hopeful about their future prospects were Umno representatives from Penang and Selangor.

The NEP is over. We need a New Deal

This talk was delivered on July 10, 2009, at HELP University College, Damansara, Kuala Lumpur to a gathering of PR Consultants. I was asked to address the topic “Najib’s 100 Days”


razaleigh.com




1. Thank you for inviting me to address you. It’s a pleasure to be here, and to learn from you. You have asked me to talk about Najib’s First 100 Days, and this lecture is in a series called Straight Talk. I shall indeed speak plainly and directly.

2. Let me begin by disappointing you. I am not going to talk about Najib’s First 100 Days because it makes little sense to do so.

3. Our governments are brought to power for five year terms through general elections. The present government was constituted after March 8, 2008 and Datuk Seri Najib Tun Razak’s tenure as Prime Minister resulted from a so-called “smooth transfer of power” between the previous Prime Minister and himself that took a somewhat unsmooth twelve months to carry out. During those months, Najib took on the de facto leadership role domestically while Abdullah warmed our international ties. The first 100 days of this government went by unremarked sometime in June last year.

4. Not only is it somewhat meaningless to talk about Najib’s First 100 days, such talk buys into a kind of political silliness that we are already too prone to. It has us imagine that the present government started work on April 2 and forget that it commenced work on March 8 last year and must be accountable for all that has been done or not done since then. It has us forget that in our system of parliamentary, constitutional democracy, governments are brought to power at general elections and must be held accountable for promises made at these elections. It leads us to forget that these promises, set out in election manifestos, are undertaken by political parties, not individuals, and are not trifles to be forgotten when there is a change of individual.


5. It is important that we remember these things, cultivate a more critical recollection of them, and learn to hold our leaders accountable to them, so that we are not perpetually chasing the slogan of the day, whether this be Vision 2020, Islam Hadhari or 1Malaysia. As PR Professionals, you would see my point immediately. Slogans without substance undermine trust. That substance is made up of policies that have been thought through and are followed through. That substance is concrete and provided by results we can measure.

6. Whether or not some of our leaders are ready for it, we are maturing as a democracy. We are beginning to evaluate our governments more by the results they deliver over time than by their rhetoric. As our increasingly well-educated and well-travelled citizens apply this standard, they force our politicians to think before they speak, and deliver before they speak again. As thinking Malaysians we should look for the policies, if any, behind the slogans. What policies are still in place and which have we abandoned? What counts as policy and who is consulted when it is made? How is a proposal formulated and specified and approved before it becomes policy, and by whom? What are the roles of party, cabinet, King and Parliament in this process? Must we know what it means before it is instituted or do we have to piece it together with guesswork? Do we even have a policy process?

7. The mandate Najib has taken up is the one given to Barisan Nasional under Abdullah Badawi’s leadership. BN was returned to power in the 12th General Elections on a manifesto promising Security, Peace and Prosperity. It is this manifesto against which the present administration undertook to be judged. The present government inherits projects and policies such as Islam Hadhari and Vision 2020. If these are still in place, how do they relate to each other and to 1 Malaysia? How do we evaluate the latest slogan against the fact of constitutional failure in Perak, the stench of corruption in the PKFZ project and reports of declining media freedom? What do we make of cynical political plays on racial unity against assurances that national unity is the priority?

8. It is not amiss to ask about continuity. We were told that the reason why we had to have a yearlong ‘transfer of power’ to replace the previous Prime Minster was so that we could have such policy continuity. The issues before the present BN government are not transformed overnight with a change of the man at the top.

9. Let me touch on one issue every Malaysian is concerned with: security. The present government made the right move in supporting the establishment of the Royal Commission to Enhance the Operations and Management of the Police in 2004. Responding to the recommendations of the Royal Commission, the government allocated the PDRM RM8 billion to upgrade itself under the 9th Malaysia Plan, a tripling of their allocation under the 8th Malaysia Plan.

10. Despite the huge extra amounts we are spending on policing, there has been no dent on our crime problem, especially in the Johor Bahru area, where it continues to make a mockery of our attempts to develop Iskandar as a destination for talent and investment. Despite spending all this money, we have just been identified as a major destination for human trafficking by the US State Department’s 2008 Human Rights Watch. We are now in the peer group of Sudan, Saudi Arabia and North Korea for human trafficking. All over the world the organized cross-border activity of human trafficking feeds on the collusion of crime syndicates and corrupt law enforcement and border security officials. Security is about more than just catching the criminals out there. It is also about the integrity of our own people and processes. It is above all about uprooting corruption and malpractice in government agencies, especially in law enforcement agencies. I wish the government were as eager to face the painful challenge of reform as to spend money. The key recommendation of the Royal Commission was the formation of an Independent Police Complaints and Misconduct Commission. That has been shelved.

11. Royal Commissions and their findings are not to be trifled with and applied selectively. Their findings and recommendations are conveyed in a report submitted to the King, who then transmits them to the Government. Their recommendations have the status of instructions from the King. The recommendations of the Royal Commission on the Police have not been properly implemented. The Royal Commission of Inquiry into the Lingam Video clip might as well not have been conducted, because its findings have been completely ignored. Both Commissions investigated matters fundamental to law and order in this country: the capability and integrity of the police and of the judiciary. No amount of money thrown at the PDRM or on installing CCTV’s can make up for what happens to our security when our law enforcers and our judges are compromised.

12. Two Royal Commissions undertaken under the present government unearthed deep issues in the police and the judiciary and made recommendations with the King’s authority behind them, and they have been ignored. The public may wonder if the government is committed to peace and security if it cannot or will not address institutional rot in law enforcement and the rule of law.

13. The reform of the police and the judiciary has been on the present government’s To Do list for more than five years.

14. I want to reflect now upon where we stand today and how we might move forward. We are truly at a turning point in our history. Our political landscape is marked with unprecedented uncertainty. Nobody knows what the immediate future holds for us politically. This is something very new for Malaysians. The inevitability of a strong BN government figured into all political and economic calculations and provided a kind of stability to our expectations. Now that this is gone, and perhaps gone for good, we need a new basis for long-term confidence. No matter who wins the next General Election, it is likely to be with a slim majority. Whatever uncertainty we now face is likely to persist unless some sort of tiebreaker is found which gathers the overwhelming support of the people.

15. We need to trust less in personalities and more in policies, look less to politics and more to principle, less to rhetoric and more to tangible outcomes, less to the government of the day and more to enduring institutions, first among which must be the Federal Constitution.

16. We need an unprecedented degree of openness and honesty about what our issues are and what can be done; about who we are, and where we want to go. We need straight talk rather than slogans. We need to be looking the long horizon rather than occupying ourselves with media-generated milestones.

17. Those of us who think about the future of Malaysia have never been so restless. The mould of our past is broken, and there is no putting it back together again, but a new mould into which to pour our efforts is not yet cast. This is a time to think new thoughts, and to be courageous in articulating them.

18. Such is the case not just in politics but also in how the government manages the economy. In a previous speech I argued that for our economy to escape the “middle income trap” we need to make a developmental leap involving transformative improvements in governance and a successful reform of our political system. I said the world recession is a critical opportunity for us to re-gear and re-tool the Malaysian economy because it is a challenge to take bold, imaginative measures. We must make that leap or remain stuck as low achievers who were once promising.

19. We are in a foundational crisis both of our politics and of our economy. In both dimensions, the set plays of the past have taken us as far as they can, and can take us no further. Politically and economically, we have arrived at the end of the road for an old way of managing things. The next step facing us is not a step but a leap, not an addition to what we have but a shift that changes the very ground we play on.

20. This is not the first time in our brief history as an independent nation that we have found ourselves at an impasse and come up with a ground-setting policy, a new framework, a leap into the future. The race riots of 1969 ended the political accommodation and style of the first era of our independence. Parliament was suspended and a National Operations Council put in place under the leadership of the late Tun Razak. He formed a National Consultative Council to study what needed to be done. The NCC was a non-partisan body which included everyone. It was the NCC that drafted and recommended the New Economic Policy. This was approved and implemented by the Government.

21. The NEP was a twenty year programme. It had a national, and not a racial agenda to eradicate poverty and address structural inequality in the form of the identification of race with occupation. It aimed to remove a colonial era distribution of economic roles in our economy. Nowhere in its terms is any race specified, nor does it privilege one race over another. Its aim was unity.

22. The NEP’s redistributive measures drew on principles of social justice, not claims of racial privilege. This is an important point. The NEP was acceptable to all Malaysians because its justification was universal rather than sectarian, ethical rather than opportunistic. It appealed to Malaysians’ sense of social justice and not to any notion of racial privilege.

23. We were devising a time-limited policy for the day, in pursuit of a set of measurable outcomes. We were not devising a doctrine for an eternal socio-economic arrangement. Like all policies, it was formulated to solve a finite set of problems, but through an enduring concern with principles such as equity and justice. I happen to think it was the right thing for the time, and it worked in large measure.

24. Curiously, although the policy was formulated within the broad consensus of the NCC for a finite period, in our political consciousness it has grown into an all-encompassing and permanent framework that defines who we are. We continue to act and talk as if it is still in place. The NEP ended in 1991 when it was terminated and replaced by the New Development Policy, but eighteen years on, we are still in its hangover and speak confusingly about liberalizing it. The NEP was necessary and even visionary in 1971, but it is a crushing indictment of our lack of imagination, of the mediocrity of our leadership, that two decades after its expiry, we talk as if it is the sacrosanct centre of our socio-political arrangement, and that departures from it are big strides. The NEP is over, and we have not had the courage to tell people this. The real issue is not whether the NEP is to be continued or not, but whether we have the imagination to come up with something which better serves our values and objectives, for our own time.

25. Policies are limited mechanisms for solving problems. They become vehicles for abuse when they stay on past their useful life. Like political or corporate leaders who have stayed too long, policies that overrun their scope or time become entrenched in abuse, and confuse the means that they are with the ends that they were meant to serve. The NEP was formulated to serve the objective of unity. That objective is enduring, but its instrument can come up for renewal or replacement. Any organisation, let alone a country, that fails to renew a key policy over forty years in a fast-moving world is out of touch and in trouble.

26. There is a broad consensus in our society that while the NEP has had important successes, it has now degenerated into a vehicle for abuse and inefficiency. Neither the Malays nor the non-Malays approve of the way it now works, although there would be multiracial support for the objectives of the NEP, as originally understood. The enthusiasm with which recent reforms have been greeted in the business and international communities suggests that the NEP is viewed as an obstacle to growth. This was not what it was meant to be.

27. It was designed to promote a more equitable and therefore a more harmonious society. Far from obstructing growth, the stability and harmony envisaged by the NEP would were to be the basis for long term prosperity.

28. Over the years, however, and alongside its successes, the NEP has been systematically appropriated by a small political and business class to enrich itself and perpetuate its power. This process has corrupted our society and our politics. It has corrupted our political parties. Rent-seeking practices have choked the NEP’s original intention of seeking a more just and equitable society, and have discredited the broad nation-building enterprise which this policy was meant to serve.

29. Thus, while the NEP itself has expired, we live under the hangover of a policy which has been skewed from its intent. Instead of coming up with better policy tools in pursuit of the aims behind the NEP, a set of vested interests rallies to defend the mere form of the NEP and to extend its bureaucratic sway through a huge apparatus of commissions, agencies, licenses and permits while its spirit has been evacuated. In doing so they have clouded the noble aims of the NEP and racialized its originally national and universal concerns.

30. We must break the stranglehold of communal politics and racial policy if we want to be a place where an economy driven by ideas and skills can flourish. This is where our daunting economic and political challenges can be addressed in one stroke. We can do much better than cling to the bright ideas of forty years ago as if they were dogma, and forget our duty to come up with the bright ideas for our own time. The NEP, together with the Barisan coalition, was a workable solution for Malaysia forty years ago. But forty years ago, our population was about a third of what it is today, our economy was a fraction the size and complexity that it is now, and structured around the export of tin and rubber rather than around manufacturing, services and oil and gas. Forty years ago we were in the midst of the Cold War, and the Vietnam War raged to the north. Need I say we live in a very different world today. We need to talk to the facebook generation of young Malaysians connected to global styles and currents of thought. We face global epidemics, economic downturns and planetary climate change.

31. We can do much better than to cling to the outer form of an old policy. Thinking in these terms only gives us the negative policy lever of “relaxing” certain rules, when what we need is a new policy framework, with 21st century policy instruments. We have relaxed some quotas. We have left Approved Permits and our taxi licensing system intact. We have left the apparatus of the NEP, and a divisive mindset that has grown up around it, in place. Wary of well-intentioned statements with no follow-through, the business community has greeted these reforms cautiously, noting that a mountain of other reforms are needed. One banker was quoted in a recent news article as saying: “All the reforms need to go hand in hand..Why is there an exodus of talent and wealth? It is because people do not feel confident with the investment climate, security conditions and the government in Malaysia. Right now, many have lost faith in the system.”

32. The issues are intertwined. Our problems are systemic and rooted in the capability of the government to deliver, and the integrity of our institutions. It is clear that piecemeal “liberalization” and measure by measure reform on a politicized timetable is not going to do the job.

33. What we need is a whole new policy framework, based on a comprehensive vision that addresses root problems in security, institutional integrity, education and government capability. What we need to do is address our crisis with the bold statecraft from which the NEP itself originated, not cling to a problematic framework that does little justice to our high aspirations. The challenge of leadership is to tell the truth about our situation, no matter how unpalatable, to bring people together around that solution, and to move them to act together on that solution.

34. If the problem is really that we face a foundational crisis, then it is not liberalization of the NEP, or even liberalization per se that we need. From the depths of the global economic slowdown it is abundantly clear that the autonomous free market is neither equitable nor even sustainable. There is no substitute for putting our heads together and coming up with wise policy. We need a Malaysian New Deal based on the same universal concerns on which the NEP was originally formulated but designed for a new era: we must continue to eradicate poverty without regard for race or religion, and ensure that markets serve the people rather than the other way around.

35. Building on the desire for unity based social justice that motivated the NEP in 1971, let us assist 100% of Malaysians who need help in improving their livelihoods and educating their children. We want the full participation of all stakeholders in our economy. A fair and equitable political and economic order, founded on equal citizenship as guaranteed in our Constitution, is the only possible basis for a united Malaysia and a prerequisite of the competitive, talent-driven economy we must create if we are to make our economic leap.

36. If we could do this, we would restore national confidence, we would bring Malaysians together in common cause to build a country that all feel a deep sense of belonging to. We would unleash the kind of investment we need, not just of foreign capital but of the loyalty, effort and commitment of all Malaysians.

37. I don’t know about you. I am embarrassed that after fifty years of independence we are still talking about bringing Malaysians together. I would have wished that by now, and here tonight, we could be talking about how we can conquer new challenges together.

Do take the trouble to understand before you find fault with the judges of the Court of Appeal

by N H Chan

Before you go about judging the judges of the Court of Appeal on their five minute oral decision which they handed down on Friday, May 22, 2009, please bear in mind the wise words of the most liberal of American judges, judge Learned Hand who once wrote - The Spirit of Liberty, p 110:

… while it is proper that the people should find fault when the judges fail, it is only reasonable that they should recognise the difficulties. … Let them be severely brought to book, when they go wrong, but by those who will take the trouble to understand.

I shall now try to help you take the trouble to understand the oral findings of the Court of Appeal. First of all we will look at what the New Straits Times, Saturday. May 23, 2009 has to say:

PUTRAJAYA. … In allowing the appeal by Datuk Seri Zambry Abdul Kadir that he was constitutionally appointed as menteri besar by the sultan on Feb 6, Court of Appeal judge Datuk Md Raus Sharif said there was no clear provision in the state Constitution that a vote of no confidence against Nizar must be taken in the assembly.

Raus, who sat with Datuk Zainun Ali and Datuk Ahmad Maarop to hear submissions on Thursday, said Nizar had on February 4 made a request to the sultan to dissolve the assembly under Article 16 (6) because he no longer enjoyed the support of the majority assemblymen.

He said Nizar had no choice but to resign once the ruler declined to dissolve the assembly.

“There is no mandatory or express requirement in the Perak Constitution for a vote of no confidence to be taken in the legislative assembly.” Raus said in a five-minute oral ruling before a packed court room.

That was all. That is the gravamen of the five minute decision. What the Court of Appeal has said above as reported in the New Straits Times had also been said by Mr Justice Abdul Aziz in the High Court in his well considered judgment - 78 pages on A4 paper. This is what the High Court judge said, at p 30:

It is not in dispute that His Royal Highness had exercised the royal prerogative in this case pursuant to Article XVI (2) (a) and (6) of the Perak’s State Constitution. However the applicant [Nizar] is not asking the Court to review His Royal Highness’ prerogative to appoint the respondent [Zambry] as MB Perak or His Royal Highness’ prerogative to withhold consent to dissolve the State Legislative Assembly. The applicant concedes that the two royal prerogatives are not subject to review and non justiciable. That is the reason, the applicant [Nizar] said, His Royal Highness was not made a party to the present disputes.

And at pp 36, 37 Abdul Aziz J also said:

Under Article XVI(2) of the Perak’s State Constitution His Royal Highness shall appoint as Menteri Besar a member of the State Legislative Assembly who in His Royal Highness’ judgment is likely to command the confidence of the majority of the members of the State Legislative Assembly. …

I never had any doubt that the exercise of the royal prerogative to appoint a Menteri Besar pursuant to Article XVI(2) Perak’s State Constitution is solely based on personal judgment of His Royal Highness and that His Royal Highness may resort to any means in order to satisfy himself and accordingly to form his judgment as to whom who is likely to command the confidence of the majority of the State Legislative Assembly that he can be appointed as the Menteri Besar to lead the Executive Council.

I also have no doubt that His Royal Highness has absolute discretion with regard to the appointment of a Menteri Besar and the withholding of consent to a request for the dissolution of the State Legislative Assembly. This is plain and obvious from the reading of Article XVIII (1) and (2) (a) and (b) of Perak’s State Constitution.

The High Court judge even agreed, at p 37:

… that if the Menteri Besar ceases to command the confidence of the majority of the members of the State Legislative Assembly, he shall tender the resignation of the Executive Council, …

So then, how could the Court of Appeal overrule the judgment of the High Court when the higher court substantially agrees with the judgment of the High Court? The newspaper report is not very clear on this point as we are still unaware of the reason for overruling the judgment of the High Court judge.

However, according to the report in the New Straits times, Raus JCA did say, “There is no mandatory or express requirement in the Perak Constitution for a vote of no confidence to be taken in the legislative assembly.” So what if there is no provision for a vote of no confidence in the Legislative Assembly. The High Court had found that Nizar is still the Mentri Besar. To overrule the decision of the High Court, the Court of Appeal must explain why the judge of the High Court was wrong in finding that Nizar is the Mentri Besar.

The newspaper had even suggested that it could be implied in the ruling of the Court of Appeal that the Ruler had sacked the incumbent Mentri Besar Nizar:

The unanimous Court of Appeal ruling yesterday seems to suggest that a head of state can sack the incumbent head of government once it was determined that the politician ceased to command the confidence of a majority of the elected representatives.

The newspaper is wrong. That was not the finding of the Court of Appeal. In any case the monarch has no power to dismiss a Mentri Besar - there is no provision for it in the Perak Constitution.

The trial judge Abdul Aziz J in his judgment has explained why he found that Nizar is still the Mentri Besar. This is how he puts it - see p 54 of his judgment:

It is true the request may be made only under two provisions of Perak’s State Constitution i.e. Article XVI(6) and Article XXXVI (1) and (2). But the circumstances under which the request can be made is unlimited. The request under Article XVI(6) is specific to a situation where the Menteri Besar ceases to command the confidence of the majority in the State Legislative Assembly; whereas under Article XXXVI (1) and (2), [the] situation 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 His Royal Highness’ discretion whether to grant or [not to grant] the consent to dissolve the State Legislative Assembly.

Then at pp 56-58 the High Court judge comes to this conclusion:

In my view it is alright if His Highness takes upon himself to determine who commands the confidence of the majority in the State Legislative Assembly that he can appoint as the Menteri Besar. Such determination however is only good for the purpose of appointing a Menteri Besar pursuant to Article XVI(2)(a) Perak State Constitution. This is so because that provision speaks of ‘who in his judgment is likely to command the confidence of the majority’. The language use therein requires the exercise of a personal judgment on His Royal Highness.

But the same thing cannot be said with regard to Article XVI(6) in deciding whether the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly. 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 of the members of the legislative assembly. One reason for this is that the expression ‘in his judgment’ is not used in Article XVI(6). … I am of the view that just because His Royal Highness had formed a judgment that the respondent [Zambry] is likely to command the confidence of the majority for the purpose of Article XVI(2)(a) to appoint the respondent [Zambry] as Menteri Besar it does not mean that His Royal Highness’ opinion or judgment is applicable in deciding that the applicant [Nizar] ceases to command the confidence of the majority of the members of the Legislative Assembly. In another word, one cannot say that because His Royal Highness has judged that the respondent [Zambry] is likely to command the confidence of the majority in the Legislative Assembly therefore the applicant [Nizar] ceases to command the confidence of the majority of the members of the Legislative Assembly. I would say that the personal opinion or judgment of His Royal Highness is irrelevant to the construction of Article XVI(6). The [other] reason is that Article XVI(5) Perak State Constitution states that the Executive Council shall be collectively responsible to the Legislative Assembly. Under Article XVI(2)(a) the Menteri Besar is appointed to preside over the Executive Council. Article XVI(6) speaks of “If the Menteri Besar ceases to command the confidence of the majority of the members of the legislative Assembly …”. Reading these three provisions in Article XVI Perak State Constitution it is logical and in fact Article XVI(6) requires it to be so, that it is the Legislative Assembly that determines whether it has confidence in the Menteri Besar as the Head of the Executive Council. The Legislative Assembly may make the determination through a vote of no confidence against the Menteri Besar. (The Emphasis is mine)

It seems to us ordinary folk that the Court of Appeal has missed the point. They decided that Zambry was properly appointed Mentri Besar under Article XVI(6). That is not correct - he could only be appointed under Article XVI(2)(a). Since there cannot be two Mentri Besar and Nizar the incumbent Mentri Besar has not resigned and, further, since the legislative assembly did not decide if he has ceased to command the confidence of the majority of the members of the assembly, Nizar, unquestionably, is still the Mentri Besar of Perak.

Nizar’s case was that Article XVI(6) speaks of “If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly”. The poser is who is to decide “If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly” under Article XVI(6)? Certainly not the Ruler because the phrase “in his judgment” - which is used in Article XVI(2)(a) - is not used in Article XVI(6). If it is not to be the Ruler then who is to decide “If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly”? The answer is in Article XVI(6) itself - only the Legislative Assembly itself could decide if the Mentri Besar ceases to command the confidence of the majority of the members of the Assembly.

Article XVI(6) clearly states that the Mentri Besar who no longer commands the confidence of the majority of the Legislative Assembly “shall tender the resignation of the Executive Council”. This has to be done “unless at his [the Mentri Besar’s] request His Royal Highness dissolves the Legislative Assembly. But Mentri Besar Nizar could not admit that he ceases to command the confidence of the majority of the members of the Legislative Assembly because he would not know until a vote has been taken at the Assembly to determine so. Only the Assembly itself would know if a vote is taken to determine whether the Mentri Besar has lost the confidence of the majority of the members of the Assembly.

Now that you have understood the five-minute decision of the Court of Appeal as well as the well considered judgment of the trial judge, you should be able to severely bring to book the judges of this Court of Appeal since you are now aware if they have done wrong.

Before I sign off, I wish to say a few nice words to the High Court judge. Mr Justice Abul Aziz Abdul Rahim is a fantastic judge. The judgment, especially the piece on the interpretation of Article XVI(6), is so good that it has persuaded me to change my mind on my view of Article XVI(6). If you remember my first article, I have expressed an opinion on Article XVI(6). Now I know I was wrong - and I have to thank Abdul Aziz J for showing me the way.

Why no Federal Court written judgment on Perak

by N.H. Chan




MAY 19 - Do you know why the Federal Court is not giving a written judgment in the Perak debacle?

The answer can be simply put. It is because Article 72 (1) of the Federal Constitution is written in unambiguous language which even a child can understand.

As I have said before in an earlier article that the words, “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”, mean what they say.

Nothing can be plainer than that. No one in his right senses would try to interpret the obvious meaning of the words in Article 72, unless he wants to say the words mean something else. But the Federal Court was not prepared to do that. And the reason is because they do not want to be known as Humpty Dumpty judges.

Remember Humpty Dumpty in Lewis Carrol’s, “Through the looking Glass?”:

“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”

So the judges of the Federal Court did the unthinkable. They blatantly refused to apply the constitutional provision as it stands. They ignored it altogether.

But by so doing they have committed the cardinal sin of not administering justice according to law. It is the duty of every judge, indeed it is his only function, to administer justice according to law. And the law, in this context, is Article 72 (1) of the Federal Constitution which is the supreme law of the land.

Said Lord Denning, What Next in the Law, p 319:

“Parliament is supreme. Every law enacted by Parliament must be obeyed to the letter. No matter how unreasonable or unjust it may be, nevertheless, the judges have no option. They must apply the statute as it stands.”

Since the judges of the Federal Court, especially the infamous five, have refused to apply Article 72 (1) as it stands, they have, as a result, impaled themselves on the horns of their own dilemma.

They have, so to speak, placed themselves between the devil and the deep blue sea. Either way their position is untenable. By refusing to apply Article 72(1) of the Federal Constitution as it stands they would be guilty of a misuse of power.

As put by Lord Denning, ibid, p 380:

“May not the judges themselves sometimes abuse or misuse their power? It is their duty to administer and apply the law of the land. If they should divert it or depart from it and do so knowingly, they themselves would be guilty of a misuse of power.

And, in this country, this could be a ground for the judges to be removed from office. This is what section 2 of the Judges’ Code of Ethics 1994 says:

2. (1) This Code of Ethics shall apply throughout the period of his service.

(2) The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.

And section 3 (1)(d) says:

3. (1) A judge shall not -

(d) conduct himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto;

Judging by the unfair treatment of Nizar in his encounter with the Federal Court, public opinion has no doubt that the judges of the Federal Court has brought discredit to the Judiciary. The words of section 3(1)(d) are so clear and easy to understand that we do not need any court of law to explain it to us ordinary folk. We know what the words mean.

By not administering and applying the law, which in this case is the supreme law, of the land as it stands the errant judges have brought discredit to the judiciary – a ground for their removal from office.

And if the Government of the day failed to listen to the voice of the people then they have placed themselves in jeopardy of losing the next general election or any by-election or any State election in the future.

And finally, what about Ramly JCA the judge who had acted with indecent haste when he granted a stay to Zambry of the well-considered judgment of Abdul Aziz J.

Zambry was appealing against the High Court judge’s declaratory order in favour of Nizar. Like the judges of the Federal Court, he has not given any reason for his decision.

Ramly JCA granted the stay of the declaration which Nizar had obtained against Zambry. The judge was unable to explain why he granted the stay. As any lawyer will tell you it is unusual to stay a declaratory order. If such a stay is to be granted, there are legal arguments to be considered from both sides and the judge will have to say why he prefers the argument of one side as against the other.

The people’s perception of him as an unfair judge is the same as that of the errant judges of the Federal Court. Ramly JCA is in no better position than his seniors in the Federal Court.



* N H Chan is a retired judge who last sat in the Court of Appeals.

What is at stake in the Perak crisis

razaleigh.com | Tengku Razaleigh’s official weblog




The Perak crisis is a tragic comedy of errors and bad political judgment that reflects a failure of political leadership. As it continues to spin out of control, it damages our democratic system of governance. To all intents and purposes, one of our most prosperous and developed states has been reduced to a failed state, with a possibly illegal state government in place. This is a condition that can propagate outwards to the rest of the country.

I stated at the beginning of this crisis that by our Constitution, a change of government can only be brought about by democratic means, which is to say, through the ballot box or through a formal vote of confidence in the elected Legislative Assembly. These are the constitutionally mandated means by which the people decide on their government. Any other means of changing the government is unconstitutional and undemocratic, and subverts the basis upon which we are a civilised society.

We now have reason to fear the loss of the people’s confidence in the Constitution, in democracy and in our constitutional monarchy. Responsible political leadership must support rather than destroy the confidence of the people in these practices and institutions. In particular, powers reserved for the Legislative Assembly, which represents the sovereign will of the people, cannot be taken away under any circumstances by anyone. This foundational constitutional principle has been affirmed by the Court. We are all sworn to uphold it. Those who do not understand or accept this principle have no place in government.

Some issues can be solved by a court of law, but the Perak crisis is not one of them. The back and forth events of the past week demonstrate this fact abundantly. The Perak crisis cannot be solved by a decision of the Court because it is at heart a political rather than a constitutional problem. There is really no doubt about what the Constitution says. What is now unclear as a result of an ugly series of manoeuvres is whether Perak has a legitimate government, and there is only one way to resolve that issue. Perhaps our political leadership has not understood how important it is that the people’s voice must prevail, and be seen to prevail, in the choice of their government.

The only solution to the Perak crisis now is for the State Legislative Assembly to be dissolved and free and fair elections held. At this stage there is no other way to restore both public confidence and constitutional legality to the Perak state government, and by extension to our entire system of government. Our survival as a democratic and constitutional monarchy depends on our acceptance of the judgment of the people as expressed in free and fair elections. Any attempt to circumvent that judgment betrays the basic principles and values upon which our nation and incidentally, UMNO itself, stand. I appeal for wisdom and a broader concern for the wellbeing of our country.



Tengku Razaleigh Hamzah
Member of Parliament, Gua Musang

dissolve the Perak state assembly

Written by razaleigh hamzah
razaleigh.com | Tengku Razaleigh’s official weblog


On Feb 7, I wrote that a shameful scene was unfolding in Perak and maintained that despite the “takeover” of the state government by Barisan,

"according to the Constitution, Datuk Seri Nizar Jamaluddin is Menteri Besar until he resigns of his own accord, or is removed by a vote of no-confidence in a formal sitting of the assembly. The Constitution makes no provision for his removal by any other means, including by petitions or instructions from any other authority.

Today, after three months and yet more shameful scenes, the High Court affirmed the same elementary principle, and held that Datuk Seri Nizar has been and remains the Menteri Besar. As Justice Abdul Aziz Abd Rahim put it: “He is, and was, at all material times the chief minister of Perak.” The High Court also ordered Datuk Seri Zambry Abdul Kadir and his executive officers to vacate their offices, and rejected an application from Zambry for a stay of proceedings pending an appeal.

The High Court has thereby affirmed the primacy of the Constitution.

This judgement brings to a head some of the consequences of our constitutional misadventure in Perak.

The government led by Datuk Seri Zambry was all along illegitimate and all decisions and contracts made by that government are without legal status. The cascade of illegalities we warned of must now be unwound painfully. This includes the deplorable events of May 7 in Ipoh. It means the resolution to replace the Speaker was brought by an illegal state government.

The Sultan, and the monarchy itself, is embarrassed by this episode, as well as by a systematic programme by some to inflame this issue into one of race and treason. Such attempts only hurt the institutions they claim to protect, and they hurt Umno and BN. The real issue was always the Constitution and the Rule of Law, and the monarchy is protected in its role of upholding the primacy of the Constitution and the will of the people.

We now hope that the Sultan agrees to dissolve the Assembly. This is the decent thing to do, but also the only way out of a crisis which has already spiralled out of Perak, damaged the rule of law, compromised the judiciary, the police and the state civil service, and damaged the monarchy in public opinion.

Umno is not well served by leaders that place short term political objectives above the Constitution. Our ideals are cheated when the monarchy we claim to protect is brought down to the level of desperate political manoeuvres that discredit us at home and abroad. We have no future as a party if we are seen as being against the people rather than for them. Those unable to rise above narrow party interests to understand what happens to a country when a government loses respect for the law might still like to consider this: it is better for BN to risk state elections that we may lose rather than to lose the entire country by being seen to be opposed to decency, the rule of law, and the will of the people.

The mystery of the missing confession

Monday, 04 May 2009 01:47

We met early April at La Bordega in Bangsar. Bull suggested I should instead sign a Statutory Declaration, as that would be stronger. They can ignore my article but they can’t ignore a Statutory Declaration. NO HOLDS BARRED Raja Petra Kamarudin From the 12th to the 22nd September 2008, I was detained at the Police Remand Centre (PRC) where most ISA detainees spend their first 60 days of detention. Suddenly, on the morning of the 22nd, I was told that my interrogation, which was held from the 17th to the 21st, is going to end and that they have to finalise their report that same day. That was the first surprise. I was supposed to sign my statement the following day -- on the 23rd. Instead, I was packed off to Kamunting the morning of the 23rd without being allowed to sign the statement cum confession. That was the second surprise. What was it that the higher-ups were so scared about that they wanted to keep my confession cum statement from those who were supposed to review it and decide whether I can be released or should be sent to Kamunting for further detention? I really don’t know because they never told me. Anyway, here is part of my interrogation by the Special Branch -- what they asked and what I replied. The last time you were detained for 54 days, is that correct? Yes, it was from 11 April to 6 June 2001. I think it was about 54 days. You were not sent to Kamunting right? That’s correct. That’s because you cooperated. So if this time you also cooperate then there is a good chance you will also not be sent to Kamunting. You might be allowed to go home like the last time. (I just nod) We find your Statutory Declaration very hard to believe. Why do you say that? Well, we don’t think what you said about Rosmah being at the murder scene is correct. How do you know? It is highly unlikely. Rosmah is very rich. She has plenty of money. Why would she want to take the risk of going there personally? She can pay someone to do the job. No need for her to go there herself. Well, that’s what I was told, that she went there personally. We don’t think so. It doesn’t make sense for her to go there herself. Okay, if you say so, but I know what I was told. Who told you? Lt Kol Azmi Zainal Abidin. He is the number two in the Special Branch of the Military Intelligence. Yes, we know who he is. So, that means you can ask him yourself then since you know him. But how do you know he was telling you the truth? He could be setting you up. I admit I don't know Lt Kol Azmi that well. But he is always in Ku Li’s office. He is very close to Ku Li. And Anwar Ibrahim also knows him very well. So you are not really that close to Lt Kol Azmi. That means you don’t know whether you can trust him. We feel he is setting you up as the fall guy. Maybe if I had to just trust him then I wouldn't dare take that risk. I mean; I don’t know him well enough to trust him all the way. But the person who introduced us is a very old friend. I’ve known him for about 45 years, longer than I’ve known my wife. And I trust my friend. My friend gave me his personal assurance that the story is legit. Who is that friend? Nik Azmi Nik Daud. We call him Bull. He works for Ku Li. I also asked Din Merican to check with Anwar whether I can trust Lt Kol Azmi with my life. Those were the exact words I used. What did Anwar say? Anwar replied you should never trust anyone with your life. However, Lt Kol Azmi’s information is very reliable. I also asked John Pang, who also works for Ku Li, to check with Ku Li whether Lt Kol Azmi’s information is reliable. I told John what Lt Kol Azmi told us and asked him to inform Ku Li about it. John confirmed that Lt Kol Azmi told Ku Li the same thing and that the information is reliable. So that is why you signed the Statutory Declaration? No. Actually, initially, I wanted to just write an article, like usual. But Bull asked to meet first before I write anything. So we met early April at La Bordega in Bangsar. Bull suggested I should instead sign a Statutory Declaration, as that would be stronger. They can ignore my article but they can’t ignore a Statutory Declaration. Then you signed it? No. I still did not sign it yet. I was worried about the repercussions. We would be forcing the government to act and they might come down hard on me. As Bull said, they can ignore my article but they can’t ignore a Statutory Declaration. Bull called for a second meeting on the Sunday before I signed the Statutory Declaration. We met at the Selangor Club Dataran Merdeka for lunch. And then? I told Bull I was a bit worried about signing a Statutory Declaration because the government will surely arrest and charge me if I do. I felt an article would be safer. But Bull disagreed. He felt an article was not strong enough. Bull said if anything happens to me they would go to court to testify that what I had signed is the truth. Bull assured me they would not allow me to rot in jail. So, on the 18th June, I signed the Statutory Declaration. Are you sure they will come forward to testify in your trial? That’s what Bull told me and I trust him. As I said, I’ve known him for 45 years. Okay, let’s see whether they do or not. But we think they will not. They will not come forward to testify at our trial. Maybe. Maybe what you say is true. I don’t know. Let’s see. After all I have already been charged and my trial will soon start. Let’s see whether they keep their word and testify at my trial. But I am confident they will because they have given me their assurance. We believe you have been set up as the fall guy. Maybe they want to get rid of you. I don’t think so. Anyway, we will know soon enough once my trial starts. It is going to be a most interesting trial indeed once the truth surfaces. Don’t you think so? Didn’t Najib’s people approach you to make a deal? You mean to buy my silence? Yes, they did. Who? Datuk Jamaluddin Jarjis. JJ? Yes. When? It was not long after I was charged for sedition, before I signed the Statutory Declaration. JJ phoned and said he wanted to meet. I knew he was working for Najib so I agreed. We met at the car park outside Kelab Taman Perdana. My wife drove me there and waited at a distance. She was worried that it may be a trap and she wanted to be cautious in case they were setting me up, or something like that. JJ arrived about 6pm and asked me to get into his car. He was alone. I waved to my wife and signalled her to go home and she wrote down JJ’s car number plate in case I disappeared or whatever. We drove to a roadside stall in Jalan Ipoh and sat there and talked. JJ told me that Najib had asked him to meet me to make a deal. I asked him whether Najib really knows we are meeting and whether he had endorsed or sanctioned the meeting and JJ replied that our meeting was on Najib’s instructions. We spent about an hour talking. The bottom line is he wanted me to stop writing about Najib and Altantuya. He also asked me whether I could delay my sedition trial until Najib becomes the Prime Minister. Once Najib is installed as Prime Minister they will drop the charges against me. I will also receive a monthly allowance of RM30,000 for my cooperation. He didn’t say for how long though. I asked him how to delay the trial and he replied I can always get a medical certificate to confirm I am not fit enough to attend trial. I told him if I delayed the trial then the legal costs would increase and he offered to pay all the legal fees. He asked me to get my lawyers to issue an invoice and he would pay the cost, whatever it may be. I told my lawyers about this incident so that at least some other people know about it. So, what happened to the deal? Soon after that I signed my Statutory Declaration. That was my way of saying no deal. After that they arrested me and charged me for criminal defamation. I suppose that was their way of replying to my reply. Wouldn’t it have been better for you to accept the deal? After all, Najib is soon going to be the Prime Minister. Maybe. But it’s too late now isn’t it? I have already burned my bridges behind me. The above is a small portion of my questions and answers session with the Special Branch over the five days of interrogation. This, plus a lot more, was compiled into a report, which I was supposed to sign on the morning of 23 September 2008 -- but which never materialised for some strange reason. I am probably the first ISA detainee in almost 50 years who made a statement (confession) but was never asked to sign it.

N.H. Chan: An inconvenient judge

Chan tells why he feels compelled to speak out.

If the Sultan had executive powers to rule, it is legally wrong, so they could apply for judicial review of the Sultan's decision. But I pointed out in my first article he has no executive power to rule because he is not an executive monarch, he is a constitutional monarch. What he did was morally wrong.

By Debra Chong
Picture by Choo Choy May


IPOH, April 30 — Chan Nyarn Hoi lives in a modest two-storey semi-detached house in a quiet lane near the state stadium in Perak with his wife, a dog and seven large Japanese carp.

At 74 years old and with ruddy smooth cheeks under a full head of snowy white hair, few would connect him to the acerbic, no-nonsense former judge Datuk N.H. Chan, who has in the last couple of months done the unthinkable: fire away missives at judges who have trampled on the Federal Constitution in deciding issues related to the power grab in Perak. His lengthy articles have reminded Malaysians of a time gone by when towering individuals sat on the Bench and simplified the Perak constitutional crisis for the common man.

Still 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.

Born in Ipoh on March 27, 1935, Chan was admitted to the Bar in 1961. He was a lawyer for almost two decades before becoming a High Court judge and moving to Kuala Lumpur.

He was among the first batch of High Court judges to be elevated to the Court of Appeal, set up in 1994 to act as an intermediate court between the High Court and the apex court.

Chan's first book, “Judging the Judges”, was published in 2007 and is a collection of his articles for the Perak Bar. Only 1,000 copies were published.

His second book, “How to Judge the Judges”, is expected to come out some time in the middle of the year. The final draft has just been sent to the publishers. They wanted him to include the Perak saga as well, but because it is ongoing, he had to draw a line somewhere. He has included some information in the epilogue.

In an exclusive interview, the former judge, who was recommended to the Bench by none other than Sultan Azlan Shah, the Sultan of Perak and a central figure in the present crisis, tells The Malaysian Insider why he feels compelled to speak out.

Q: Unlike many former judges, you have been very vocal in your criticisms against the judiciary. What drives you?

A: In the first place, I am not against the judiciary. I am sure there are some good judges around, only they have not manifested themselves in the present constitutional, should I say, crisis in Perak.

I expected James Foong JCA (as he then was, he is now a Federal Court judge) to do the right thing but he failed to do that. I suppose it takes great courage for a Court of Appeal judge who sat as a winger in the Federal Court to give a dissenting judgment.

Now, back to your question. When I became a judge I had to be true to my calling which is to know that the essence of justice is fair trial and the duty of the judge is to administer it according to law.

Lord Devlin in his book “The Judge”, wrote on page 4: “...impartiality and the appearance of it are the supreme judicial virtues. It is the verdict that matters, and if it is incorrupt, it is acceptable. To be incorrupt it must bear the stamp of a fair trial.”

And at page 85 he said: “The first — ought one to say the whole — duty of the judge is to administer justice according to law.”

Back to page 3, the book said: “What is the function of the judge? Professor Jaffe has a phrase for it — 'the disinterested application of known law' (Jaffe in his book “English and American Judges as Lawmakers”, page 13)”

This means that the judge's only duty is to do justice in the disinterested application of known law. Known law means basic law and the term includes both common law and statute law.

The judge who gives the right judgment but does not appear to be impartial is useless to the judicial process. After that, the judge's whole duty or function is to decide the case according to law on the admissible evidence before him.

And what do you call a judge who does not administer justice according to law? A renegade judge? So now you know why I am so vocal when I admonish the errant judges who did not apply unambiguous law as it stands.

Q: You have been especially blunt in your views over the issues in Perak. Why so?

A: You mean for calling a spade a spade? What do you call a judge who doesn't follow or apply easy to understand and unambiguous statute law as it stands?

Like Article 72(1) of the Federal Constitution which says: “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.

This law applies to all members of the legislative assembly — it does not matter if you are DAP or PKR or MCA or Barisan Nasional or any political party. Even a child could understand the plain meaning of the words. We do not need the Federal Court to interpret (meaning “explain the meaning of”) the words for us. Nor do we need any law professor from Singapore to tell us Malaysians that the courts should have the power of judicial review over what has transpired in Parliament or a Legislative Assembly.

There is separation of powers between the Legislature and the Judiciary of this country. We all know that one can apply to the courts for a judicial review over executive actions. But there is no such thing as judicial review over what transpired in the legislature — if there is such a thing then we can have judicial review over the passing into law of certain Acts of Parliament that we don't like — like the ISA.

A long time ago when I was a High Court judge, I have sentenced many criminals to death without qualms. But personally I am against the death sentence because it is barbaric. But as a judge I must apply the law as it is.

To quote Lord Denning: “It is their [the judges] duty to administer and apply the law of the land. If they should divert it or depart from it — and do so knowingly — they themselves would be guilty of a misuse of power.”

I would never dream of doing such a thing.

Q: Why did you choose to air your views so publicly? I'm trying to understand why you got involved.

A: I'm only an outsider and I don't care. But when everybody is missing the point and all that — and some of them have not even read the Perak Constitution, I thought I better explain why the people are angry.

Q: Why do you think the people are angry?

A: Do you know why the Perakians were up in uproar against the Sultan of Perak?

It's because, as any lawyer will tell you, especially as he was Lord President before, that before you make a decision, you cannot see the parties. If you want to meet any of the parties, both of them must be present. You never do so by seeing one and then making a decision. The moment you do that, to the losing side or to any observer will think you have been influenced. So it's the impression that counts.

They were angry with the Sultan because they can sense it in their bones that it is wrong to make a decision to see the other side first.

Q: Is the Sultan morally wrong or legally wrong?

A: If the Sultan had executive powers to rule, it is legally wrong, so they could apply for judicial review of the Sultan's decision. But I pointed out in my first article he has no executive power to rule because he is not an executive monarch, he is a constitutional monarch. What he did was morally wrong.

Q: You must have seen many things during your time as a judge. What is wrong with Malaysia’s justice system? What can be done to correct it? And what’s stopping the necessary changes from taking place?

A: I don't think there is anything wrong with our judicial system. It is the players that we should be concerned with — if we get the right people on the Bench, that is, those people who are not interested in power — because power corrupts, those fair-minded individuals who would administer justice according to law, then we will have a judiciary to be proud of.

We used to have that at one time. And if the general public think that the present crop of errant judges are not up to the mark, then the remedy is to use the power of the vote to change the present state of things.

At the general election of 1906 the common people of England toppled the Conservative Government of the day because they were unhappy with the decision of the House of Lords in the Taff Vale case which had virtually put an end to trade unions six years earlier.

That case had immense political consequences. At the general election of 1906 the opposition pledged complete immunity for trade unions.

Lord Denning said in his book “Landmarks in the Law”, page 121: “The result of the general election was like an earthquake. ... It was a sweeping victory for the trade unions. Parliament immediately passed the Trade Disputes Act 1906. It is probably the most important Act ever put into the Statute Book. It reversed all the judicial decisions against trade unions. The Taff Vale case was overruled. No trade union could thereafter be sued for damages for any wrongs done by its members. Its funds were unassailable.”

There is a well known Spanish proverb which says, “He who goes with wolves learns to howl.” So that if the electorate don't trust the judges they tend to put the blame on the government who put the judges there.

Q: Many ordinary Malaysians today feel powerless to affect positive changes to the institution of the judiciary because they lack legal knowledge. Do you agree with this view? How do you think they can work to bring about the change they want?

A: I think the real problem is this. In most cases when you read about a court decision in the newspapers, the judgment of the court is expressed in such a way that the average reader will not know if the judge is right. So invariably, we assume that the judge must be right.

I do realise the problem, so I thought I should try to explain the issue in simple language so that everyone will be able to judge for himself whether the judge is doing the right thing or not.

Lord Denning was famous for explaining difficult law in such a way that any lay reader can understand it. Now that they know how to judge the judges by reading my articles, they could, if they thought they have been short-changed by the judges, do the same thing as was done by the electorate in 1906 England. They have the power to change the government of the day by their vote in the next general election.

The opposition, in order to get the people's vote, could pledge to undo all the wrongs done to the community by the judges. They could pledge that if they were given the mandate of the people to form the next government, they would pass an Act of Parliament to overrule such unjust decisions of the Federal Court such as Adorna Properties vs Boonsorm Boonyanit, the Asean Security Mills, PP vs Datuk Seri Anwar Ibrahim as well as all the decisions of the Federal Court pertaining to the Perak constitutional crisis which were not decided according to law — where the court had blatantly refused to apply Article 72 of the Federal Constitution.

They could also pledge to remove the errant judges from office. This is how it could be done.

In “What Next in the Law”, Lord Denning said, page 319: “Parliament is supreme. Every law enacted by Parliament must be obeyed to the letter. No matter how unreasonable or unjust it may be, nevertheless, the judges have no option. They must apply the statute as it stands.”

Yet the errant judges, especially the five in the Federal Court, have refused to apply Article 72 of the Federal Constitution as it stands.

In his book, “The Judiciary in Malaysia” (Asia Pacific Publications Sdn Bhd, 1994) the then Chief Justice of Malaysia Tun Abdul Hamid Omar said, page 88: “... the provisions dealing with the removal of judges in pursuance of an address in Parliament … was modified to provide for a special tribunal to be established for the removal of judges.”

That is incorrect. Actually Article 125(3) of the Federal Constitution only applies to judges of the Federal Court.

At the time of the fracas between the then Lord President Tun Salleh Abbas and Prime Minister Datuk Seri Dr Mahathir Mohamad in 1988, Article 125(3) of the Federal Constitution provides for the removal of judges of the Federal Court on the ground of “misbehaviour or of inability”.

Article 125(3) and (4) reads:

“125(3) If the Prime Minister, or the Lord President after consulting the Prime Minister, represents to the Yang di-Pertuan Agong that a judge of the Federal Court ought to be removed on the ground of misbehaviour or on the ground of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office, the Yang di-Pertuan Agong shall appoint a tribunal in accordance with Clause (4) and refer the representation to it; and may on the recommendation of the tribunal remove the judge from office.

“125(4) The said tribunal shall consist of not less than 5 persons who hold or have held office as a judge of the Federal Court, the Court of Appeal or a High Court or, if it appears to the Yang di-Pertuan Agong expedient to make such appointment, persons who hold or have held equivalent office in any other part of the Commonwealth, and shall be presided over by the member first in the following order, namely, the Chief Justice of the Federal Court, the President and the Chief Judges according to their precedence among themselves, and other members according to the order of their appointment to an office qualifying them for membership (the older coming before the younger of two members with appointments of the same date).”

The book “The Judiciary in Malaysia” said — this part is significant so do pay special attention to it — page 89: “Until the recent amendment in 1994, the grounds for the removal of a judge was 'misbehaviour or of inability', The Constitution (Amendment) Act 1994, however, substituted for the word 'misbehaviour', the words 'any breach of any provision of the code of ethics prescribed under Clause 3A...'. The effect of this amendment is that, besides the inability, either from infirmity of body or mind, or any other cause, properly to discharge the functions of his office, a judge may be removed if he has breached the code of ethics prescribed for judges.

“Article 125(3A) provides that the code of ethics shall be observed by every judge, be it, the judge of the Federal Court, the Court of Appeal or the High Court.”

This is what Section 2 of the Judges' Code of Ethics 1994 says:

“2(1) This Code of Ethics shall apply to a judge throughout the period of his service.

“2(2) The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.”

So now we all know that any serving judge could be removed from office for a breach of any provision of the Judges' Code of Ethics 1994.

Section 3(1)(d) is the provision in the Code of Ethics to apply against the errant judges. It reads: A judge shall not conduct himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto”.

I think the words in Section 3(1)(d) are clear enough — we all know what they mean. So that if a judge brings the judiciary into disrepute or discredit, as the errant judges have done by not administering justice according to law, they could be removed from office under this provision. It's a bit harsh, but it can be done.

Umno did not win, Sivakumar did not lose

By Hanipa Maidin
Mohamed Hanipa Maidin sits on the Pas central committee and is the Pas legal adviser. He is also a lawyer who blogs at peguampas.blogspot.com

APRIL 19 – By now I believe many have heard ad nauseam Umno’s version of the true nature of the Federal Court’s decisions on April 16, 2009. This version proclaims that Datuk Zambry Abdul Kadir and his six exco members can now enter the Perak Assembly without any hassle.

Out of desperation, Umno may say anything except the truth. What are the core truths of the Federal Court’s decisions? Let us share the truths which have been conveniently buried by Umno.

The truth is that out of 10 court orders sought by Zambry and his six exco members, only two orders were granted by the Federal Court. I dare to say that these two orders are ineffective and inconsequential in nature. They are not, in any manner, capable of reining in the speaker’s power.

They merely declared that V. Sivakumar’s decisions on Feb 18, 2009 was null and void. I strongly believe that these orders will be met by the following response by Sivakumar: “So what”?

The truth is that the Federal Court did not grant the other eight orders prayed for by Zambry and his six exco members in their summons against Sivakumar. These eight orders have been hidden from the public knowledge.

The truth is that, despite the fact the court invalidated the decision of Sivakumar in suspending Zambry and his six exco members from attending the Assembly for a period of 18 months and 12 months, respectively, the Federal Court also at one fell swoop refused to grant a declaratory order allowing Zambry and the six exco members to attend and participate in all of the proceedings in the Assembly.

Without this crucial court’s order, one fails to understand the basis on which Zambry’s lawyers have formed an opinion that Zambry et al could enter the Assembly without any legal impediments blocking their entry.

The truth is that Umno miserably failed to state that the Federal Court also declined to grant an order declaring that the act of Sivakumar in suspending and prohibiting Zambry and his six exco members from attending the Assembly was contrary to law.

The truth is that the Federal Court rejected a declaratory relief which says that the Perak State Assembly was not bound by Sivakumar’s decision in suspending Zambry and his six exco members.

The truth is that, by not granting all the 10 orders sought by Zambry et al, the Federal Court implicitly acknowledged the doctrine of trias politica (the French term for separation of powers) that is the Speaker is still the final arbiter as far as the internal affairs of the State Legislative Assembly are concerned.

Whatever grouse we may have against the Federal Court judges, the fact that only two inconsequential orders were granted by the court demonstrates that the court still exercised “judicial self-restrain” in questioning any decision of the another branch of the government’s arms i.e the legislative body.

In the circumstances, the court deserves a bit of respect for at least exhibiting judicial minimalism when confronted with the issue of questioning the speaker’s powers.

The decision would, of course, be for the court to follow, thus creating certainty, the stare decisis (the past judicial precedents).

There are at least five judgments of the Malaysian courts, given by judges of impeccable integrity, which in unison held that any decision by the speaker or legislative body would not be amenable to judicial intervention.

The truth is that, notwithstanding Umno’s attempts to have the sitting under the tree declared invalid by the court, this too was also not entertained by the latter.

Thus no declaration has been made to date by the court that such a sitting was invalid. It follows therefore that the sitting was valid until proven otherwise.

The truth is that Nizar’s suit against Zambry has nothing to do with Zambry’s suit against Sivakumar. The two suits are poles apart.

Thus a suggestion by Umno’s lawyer, Datuk Hafarizam, that Nizar should consider withdrawing his suit against Zambry, was clearly a preposterous proposition unsupported by any legal foundation.

Lastly, the truth is that by filing the suit against the speaker, Zambry and his six exco members have allegedly infringed section 10 of the Legislative Assembly (Privileges) Enactment of Perak 1959 in that they had given evidence outside the Assembly in respect of the contents of documents laid before the Assembly or any committee without special leave of the Assembly.

Whether such an act by Zambry et al was tantamount to abuse of their privileges and whether such an abuse may attract a new sanction by the speaker remains to be seen.