Tuesday, May 12, 2009

Notes of Grounds of Judgment in Nizar v Zambry Case

These are the handwritten notes of the High Court’s draft Grounds of Judgment in the MB v MB matter delivered orally on 11.5.2009, and recorded by my colleagues, Joanne Leong and Daniel Cheong, which I have vetted and edited. The learned Judge indicated that His Lordship’s full Grounds will be delivered soon. There may be gaps and inaccuracies in the notes due to the speed the Grounds was read, and any mistakes herein are mine. -- Edmund Bon Tai Soon

This is the decision of the Court on the application of the Applicant for Judicial Review. Leave was granted and the Applicant seeks the following reliefs as in enclosure 28.

There is a dispute on constitutional law between the Applicant and the Respondent. The Attorney General (AG) intervened in this case because of public interest and public importance. The Court granted the application and the AG was made an intervener.

It is pertinent that the 3 letters of resignation show that the 3 ADUNs did not resign because there was a loss of confidence in the Pakatan alliance. According to exhibit MNJ-5 in the Applicant’s affidavit, the Applicant did not state any Article for dissolution. It is reasonable that MNJ-5 was the application by the Applicant appealing to His Royal Highness (HRH) to use his prerogative powers under Article 36(2). I say that it is reasonable because the leadership of the Applicant was never challenged as having lost the confidence of the members of the DUN up until 4.2.2009.

The issue of whether the 3 ADUN resigned/did not resign, wrote the letters/did not write those letters should not be decided here. They are being decided in other proceedings.

The State Legal Adviser (SLA) stated that on 4.2.2009, the Applicant had asked for dissolution under Article 16(6) and that the Applicant handed a draft Proclamation of dissolution to HRH (exhibit PSLA-1). The Applicant disputed the SLA’s position, and because the SLA had previously represented the Respondent. The Applicant stated that he did not inform or propose to HRH that he had lost the majority and that he had proposed a dissolution under Article 16(6).

The Applicant deposed that HRH informed him on 5.2.2009 that HRH refused to dissolve the State Assembly. The Applicant was also granted 15 minutes to explain himself. Among others, the Applicant informed HRH that it is constitutional convention for the Sultan to dissolve the Assembly on the advice of the Menteri Besar, and that the Palace would be placed in high esteem if HRH dissolves the Assembly because HRH will be seen to be neutral and above politics.

The SLA was very firm with his position. To resolve the conflict on the actual events on 4.2.2009, parties consented for the Applicant and the SLA to be cross-examined. I am of the view that the SLA has no pecuniary interest but his evidence as to his neutrality has to be taken with “a pinch of salt”.

The SLA, during cross-examination, told the Court that he was instructed to swear his affidavit. The word “instructed” is a strong word and it means that the person is under the command or control of another. It also means that one is not acting on one’s free will. The SLA, as a legally qualified person, could have come up with a better choice of word when he was asked but he chose to tell the Court that he was instructed. Therefore, it shows that he is not partial or neutral. In other words, the SLA might not have applied his independent view.

I am of the view that when the draft Proclamation was presented, the SLA did not make any effort to contact the Applicant to correct the Proclamation. He read the Proclamation and should have realised that the Applicant made no reference to Article 16(6). In the light of Article 36(2), the SLA should have pointed this out to the Applicant. It is considered strange that he did not do so because it is his duty to advise HRH or the State government and this includes advising the Menteri Besar. Therefore, I prefer the Applicant’s version that the Proclamation for dissolution on 4.2.2009 was under Article 36(2).

Counsel for the Respondent, Dato’ Cecil Abraham submitted that the Applicant should limit his argument under the intitulement to the action which is Article 16(6). However, with the new Order 53, it gives a wider scope and the Applicant may raise such issues.

Under Article 16(2) of the Perak Constitution, I never doubted that the appointment of the Menteri Besar is solely based on HRH’s judgment. Also no doubt, HRH has absolute powers to withhold dissolution. However, bearing in mind that once a Menteri Besar is appointed, he does not hold office at the pleasure of the Sultan - Article 16(7)

Reading the 3 clauses together, it seems that once appointed as Menteri Besar, the Menteri Besar is only answerable to the DUN and the Menteri Besar governs the State and advises HRH under Article 18. The Menteri Besar cannot be dismissed by HRH. The AG’s contention is that Article 16(7) must be read subject to Article 16(6). This is to suggest that by not resigning the Menteri Besar is going against the democratic process.

I do not agree with this submission. Except for the Menteri Besar, everyone else holds office at HRH’s pleasure. Clause 7 says that clearly. There is a qualifier that says when the Menteri Besar loses the majority, he shall tender the EXCO’s resignation.

Refer to Amir Kahar - it does not support the AG submission. It is distinguishable on its own facts.

On the question of dismissal, it will be clearer if one looks at the history on how the provisions came about. From the brief history, it is my opinion that the dismissal of Menteri Besar is never contemplated under Article 16(6).

Refer to Stephen Kalong Ningkan.

Next issue is whether there is a deeming provision under Article 16(6). The concept is a “legal fiction” and I do not think that the deeming provision should be read into it. This is because it would do violence to Article 16(6). No matter how mandatory the provision is drafted, it cannot be read as deeming the Menteri Besar position vacant. The language in Article 16(6) is very clear. What happens if the Menteri Besar refuses to resign? There is a lacuna in the provision but we cannot read a deeming provision into it. The lacuna should be filled by amendment by the Legislature.

I would adopt Ningkan and reject the AG’s submission on this point.

Now, the next issue is the loss of confidence in the Applicant. The AG submitted that dissolution can only come in 2 situations. I do not agree with the AG’s submission because the circumstances where a request to dissolve is made are unlimited.

On the undisputed facts, HRH has satisfied himself on who commands the majority but there was no vote of no confidence in the Menteri Besar and the Menteri Besar did not go to HRH to dissolve the State Assembly because he ceased to command the majority. Subsequently, how did the Menteri Besar cease to hold office?

In Adenbegro v Akintola - the term used was “support”. In Ningkan, the Court made a distinction between “support” and “confidence” and I find it correct.

On the issue of the Applicant having lost the confidence, there was never a vote of no confidence and the Applicant did not come to request dissolution due to the loss of the majority. That decision is material. On 4.2.2009, PR and BN had equal seats 28-28. Based on democratic practice, if there is a loss of confidence, it should be taken as a vote of no confidence in the Assembly. The media statement by HRH’s office which states that the positions of the Menteri Besar and EXCO members are deemed vacant should they refuse to resign amounts to a dismissal or sacking, and this is not permissible under Article 16(6).

On the issue of justiciability, there is no issue of HRH withholding dissolution and it cannot be questioned. The Court also cannot question the Sultan on the determination of facts. However, the Applicant is not asking the Court to question HRH’s decision. The Applicant is seeking declaratory reliefs that the Applicant is still the Menteri Besar. Non-justiciability does not apply at all.

The Court has been allowed to grant declaratory reliefs, and no longer do the granting of declaratory reliefs need be made only sparingly.

For the above reasons, the office of the Menteri Besar is not vacant or has not been vacated. The judgment is in favour of the Applicant according to the prayers as in enclosure 28.

Court adjourned at 3.50pm

[The prayers granted were as follows:
a. Perintah deklarasi bahawa Pemohon adalah dan pada setiap masa material dan masih Menteri Besar Negeri Perak Darul Ridzuan.
b. Perintah deklarasi berkenaan tafsiran Fasal XVI(6) Undang-Undang Tubuh Kerajaan Negeri Perak bahawa dalam keadaan di mana:
(i) Menteri Besar Negeri Perak Darul Ridzuan ingin, dan telah memberi nasihat, untuk pembubaran Dewan Perhimpunan Undangan Negeri Perak;
(ii) tidak terdapat pembubaran Dewan Perhimpunan Undangan Negeri Perak;
(iii) tidak terdapat usul tidak percaya yang diambil dan diterimapakai dalam dan oleh Dewan Perhimpunan Undangan Negeri Perak terhadap Menteri Besar Negeri Perak Darul Ridzuan; dan
(iv) tidak terdapat perletakan jawatan Mentri Besar Negeri Perak Darul Ridzuan;
jawatan Menteri Besar Negeri Perak Darul Ridzuan tidak boleh dan/atau tidak dikosongkan.
c. Writ bersifat "quo warranto" dikeluarkan kepada Responden memerintahkan Responden untuk tunjuk sebab dan memberi maklumat bagaimana dan di bawah dasar atau kuasa atau authoriti mana Responden berhak kononnya memegang jawatan Menteri Besar Negeri Perak Darul Ridzuan dan kononnya bertindak dan/atau menjalankan dan/atau melaksanakan tanggungjawab-tanggungjawab, fungsi-fungsi dan tugas-tugas Menteri Besar Negeri Perak Darul Ridzuan.
d. Perintah deklarasi bahawa Responden tidak berhak untuk dan/atau tidak menjawat jawatan Menteri Besar Negeri Perak Darul Ridzuan dan bukannya Menteri Besar Negeri Perak Darul Ridzuan pada bila-bila masa yang material.
e. Perintah injunksi untuk menghalang Responden dan/atau agen-agen Responden dan/atau pengkhidmat-pengkhidmat Responden dari bertindak dan/atau menjalankan dan/atau melaksanakan tanggungjawab-tanggungjawab, fungsi-fungsi dan tugas-tugas Menteri Besar Negeri Perak Darul Ridzuan.
(The ancillary prayers for punitive, aggravated and exemplary damages, and costs were withdrawn by Nizar at the end of our submission as this is a public interest litigation for judicial clarification on the legal position of Article 16(6), and is not intended to be a form of recrimination or punishment against the Respondent.)]
ps: di petik tanpa kebenaran dari portal The Malaysian Bar.