Thursday, November 12, 2009

A Lawyer's Diary (5)

The following are notes taken during my partner, Mr. Philip Koh's submission in reply in the case of Nizar -v- Zambry. I find it enlightening :

1. My Lords, in the absence of our leader (Tuan Haji Sulaiman) with leave of this Court it falls on me to make a reply.

Federal Court: Only one counsel?

Philip Koh : Yes, only one and I will be brief and shall definitely not exceed 6 pm, probably earlier.


2. In the Privy Council case from Nigeria, Adengbero v Akintola Viscount Radcliffe asked whether there is anything in the scheme of the Constitution that compels a certain way of interpreting the document. We say that in the task of Constitutional Interpretation there are three basic questions:-
WHO Interprets?
WHAT is being interpreted?
HOW is it interpreted?

3. The Learned and Honourable Attorney General and Learned Counsel for Respondent and we are on the same page in so far as the vital question that confronts us is the question of interpreting the Perak State Constitution.

4. My Lords, in answering the question I shall be referring to two major documents in our Reply: can My Lords refer to them? The Perak State Constitution and our Core Bundle Ikatan IT (P). Does Your Lordship have these two documents? The Crux of Appellant’s position is that the Constitution is to be interpreted by the Courts and NOT by any other institution however high.


5. I respectfully refer to Article LXIII (pg 35 of the Perak Constitution) entitled “Special Jurisdiction of the Federal Court as to Interpretation of the Laws of the Constitution.”
I refer also to Article LXIV (pg 36) Advisory Jurisdiction of the Federal Court where HRH may refer “any question as to the effect of any provision of this Constitution which has arisen or appeared to HRH likely to rise and the Federal Court shall pronounce in Open Court its opinion on any question so referred to it.”

6. I emphasise that the hearing is in OPEN COURT so that all reasons may be ventilated and decisions are not made which may give rise to speculations and conflicting accounts of what happened.

7. This is important as it shields and insulates HRH from criticism of taking over the interpretive function.

8. It is the Court which interprets and not HRH. It is neither the Menteri Besar nor even the Legislative Assembly that has the interpretive function over the constitution.
I refer again to jurisdiction of HRH to refer issues to the Federal Court under Article LXIV of the Perak Constitution.


9. My Lords this will shield HRH from criticism and contestations by either side of the divide.

10. I repeat that this also insulates the HRH from the sordid business of political horse trading.

11. My Lords, as Tun Suffian observed in Malaysia there is no one institution that is Supreme. What is supreme is the Constitution. In our case here, it is the Laws of the Constitution of Perak.


12. We have already drawn My Lords’ attention to Articles XIX(1) and (1A) the “Vacating the Throne” provision and how it can be “deemed vacant” by operation of law in Part II of the Perak Constitution.

13. Article XIX(1) says that “If the Sovereign shall absent himself from the State for more than three consecutive calendar months ... the Sovereign shall be deemed to have vacated the throne. Article XIX (1A) provides that in that event “...He shall cease to be the Sovereign and shall be deemed to have vacated the throne.”

14. We also draw My Lords’ attention to Article XXXIV of the Perak Constitution.“If a member of the Legislative Assembly becomes disqualified for membership of the Assembly or dies, his seat shall become vacant.” Again, the text of the Perak Constitution itself provides in concise and clear language if it desires and intends that an office is to be “deemed vacated” or “SHALL become vacant.”


15. Simple clear words that could have been introduced into Article XVI (6) if the draftsman is desirous to introduce words to such effect. Yet the Learned and Honourable Attorney General says that under Article XVI(6) the post of the MB can be deemed vacant.

16. Article XVI (6) reads: “If the Mentri Besar ceases to command the confidence of the majority of the members ... he shall tender the resignation of the Executive Council.”

17. Counsel for Respondent cannot ask this Court to “mind the gap” and supply the omission.

18. We have referred to Merdeka University case which settles how constitutions are interpreted and nothing in the cases referred to by Counsel for Respondent and the Learned and Honourable Attorney General refutes this.

19. It is our submission that TEXTUALLY and STRUCTURALLY the Perak Constitution provides the balance and equilibrium to govern the constitutional polity.

20. My Learned and Honourable Attorney General referred to his being in Amir Kahar’s case.

21. I was also privileged to be Junior Counsel in the Tun Mustapha case heard by Mr Justice Tan Chiaw Tong. It adopted the reasoning in Ningkan.


22. In an important passage, Tan Chiaw Tong J said that regardless of whether you used words like “revoke” or “vacate” etc., there was no power to dismiss. Neither the Learned and Honourable Attorney General nor Counsel for Respondent has refuted the reasoning of Tan J.

23. I now refer to the HRH’s Media Statement:- “Sekira YAB Dato’ Seri Ir. Mohammad Nizar bin Jamaluddin tidak meletak jawatan sebagai Menteri Besar bersama ahli-ahli MMK, maka jawatan Menteri Besar serta ahli-ahli MMK tersebut dianggap telah dikosongkan.”

24. With respect, this is tantamount to dismissal and/or deemed vacant which both TEXTUALLY and STRUCTURALLY the Perak State Constitution does not permit to be read into Article XVI(6).

25. We also note that there has not been any refutation of Mr Justice Tan Chiaw Tong’s ruling in Tun Mustapha’s case that the Interpretation Act does not apply where there is a “contrary intention”.

26. The Perak Constitution provides clearly that the Menteri Besar does not hold office at the pleasure of HRH. Therefore, although there is a constitutional power to appoint under Article XVI(2), the contrary intention that “the MB does NOT hold office at the pleasure of HRH” precludes any suggestion that HRH has the power to dismiss.


27. By the way, it should also be noted that Mr Justice Tan in Tun Mustapha also said that the Governor should be given space to calmly and independently deliberate as to the appointment of the Governor (or MB), as intended by the Constitution.

28. This did not happen here. As we all know, the Deputy Prime Minister with his entourage was in HRH’s palace. The contemporaneous document at pg 4 of the Core Bundle also shows that at the material time there was no one identified from the BN side who could be said to command the confidence of a majority of the members of the Legislative Assembly.

29. Though it may be readily conceded that the TUANKU of Perak is more robust than the Tuan Yang Di Pertua of Sabah, this does not change the principle.


30. Learned Counsel for Respondent said that we have not referred to facts which are crucial in this Appeal. He suggested we were running away from them; that we dare not face the facts. My Lords, we stress that the law is just as important in this Appeal. Our appeal concerns the intricacies behind the provisions of the Perak State Constitution and also involves complex case authorities.

31. But let us now respond to the facts:-
The Counsel for Respondent and the Learned and Honourable Attorney General said that the facts demonstrate that:-
(i) MB Nizar came to HRH with knowledge that he has lost the confidence of the majority of the members of the Legislative Assembly;
(ii) it is undisputed that MB Nizar has lost the majority. Counsel for Respondent says that 28 – 27 is not a deadlock. But he forgets that Sivakumar can resign as a Speaker and an outsider can be appointed. 28 – 28. That is why BN appointed Ganesan as “Speaker”.


32. But what are the facts and law? It is trite law that a man’s knowledge has to be evaluated at the relevant time. From MB Nizar's view point and state of knowledge on 4th and 5th of February and not in retrospect.

33. What is that knowledge? Zainun JCA in the Court below opined that “an unenlightened MB will not go down well with the public.” MB Nizar has been described as “dishonourable”. Is he? Is that what the facts bear out?

34. Let us refer to the crucial letter dated 5th February, 2009. With My Lords’ leave, I read the contents of the letter.

35. My Lords, may I be permitted to read the letter in its entirety. Yes, My Lords, please note the reference to Article XVI(6). But also take note that the Learned and Honourable Attorney General stopped short of reading a crucial sentence i.e.:- “ini bermakna sokongan Menteri Besar itu perlu diputuskan oleh Persidangan Dewan Negeri.”. Further take note, “Patik dengan ini merafa sembah bahawa pimpinan Pakatan Rakyat sebulat suara meminta Patik untuk tidak meletak jawatan sehingga krisis perlembagaan ini diputuskan oleh Mahkamah atau Dewan Negeri Perak.” So we have contemporary documentary evidence that there is a need to go to the Dewan Negeri or the Courts to decide the issue. This is far from the Respondent’s contention that Nizar had already lost the confidence of the majority of the members of the Legislative Assembly when he approached HRH. Go to the Court: hear the yearning for justice from Courts by MB Nizar.


36. For Respondent’s Counsel and the Learned and Honourable Attorney General, there appears to be a triumph of facts over law. We differ. We say that the law as it stands, in Nizar’s case, is triumphant over facts here. Even if we concede that the facts are against the Appellant, we submit that the law determines the scope of Article XVI(6).

37. We say that even if we assume that the facts are against MB Nizar, we, nevertheless, submit that the LAW must triumph over FACTS. Article XVI(6) does not contain the words which Counsel for Respondent and the Learned and Honourable Attorney General wants this Court to read into.


38. We would also refer to a letter from the Speaker, Mr Sivakumar dated 6th February 2009 which urged the convening of the Legislative Assembly, “supaya mengadakan mesyuarat Sidang Dewan Negeri Perak ... diadakan secepat mungkin.”

39. The Speaker also asked that the swearing in of Dato’ Dr Zambry be deferred “sehingga selepas mengadakan mesyuarat sidang Dewan Negeri Perak tersebut.”

40. Was MB Nizar afraid to face the Legislative Assembly as contended by the Learned and Honourable Attorney General and Counsel for the Respondent?


41. Counsel for Respondent has made much of contemporaneous documents. We submit that this document from the Speaker, being contemporaneous, demonstrates that MB Nizar has throughout requested for convening of Legislative Assembly.

42. Federal Court (Dato Haji Embong FCJ): It will be more helpful if there is an earlier letter or request.

Philip Koh: Yes My Lords, we again refer back to letter dated 5th February 2009 from MB Nizar to HRH. [See pg 14 of Core Bundle IT ( P)] “Patik dengan ini merafa sembah bahawa pimpinan Pakatan Rakyat sebulat suara meminta Patik untuk tidak meletak jawatan sehingga krisis perlembagaan ini diputuskan oleh Mahkamah atau Dewan Undangan Negeri Perak.”


43. My Lords, it is wrong for them to say that we are not concerned with facts. Indeed, we say that Dato Aziz J at the High Court has dealt with the facts at pgs 1193 through to 1204 of Jilid 14 / 15 of Rekod Rayuan filed by Appellant. We refer especially to pg 1204: “In the circumstance I would prefer the version by the Applicant that the request for dissolution on 4th February 2009 was made pursuant to Article XXXVI (2) of the Perak State Constitution and that the issue of loss of confidence in the State Legislative Assembly was never raised or became an issue the averment by the SLA also is not supported by contemporaneous document in the form of Exhibit PSLA-1. I am fortified in this conclusion when the SLA confirmed, under re-examination by the Learned and Honourable Attorney General, that in Exhibit PSLA-1, Article XXXVI (2) Perak State Constitution is the ground for dissolution.

44. Earlier, when our leading Counsel Tuan Haji Sulaiman submitted there was authority for Federal Court to overrule a Court of Appeal finding of fact as against the High Court, the case of Asean Papermills was referred to. We hereby hand over the case authority for ease of reference to the Court. Refer to the passage that if the Court of Appeal drew wrong inferences from the chain of evidence, the Federal Court may overrule the decision of the Court of Appeal.


45. My Lords, I further say the Learned Counsel for Respondent and the Learned and Honourable Attorney General have not refuted our arguments on Historical and Original Intent as exhibited by the Reid Report and the Draft Constitution whereby there was an express power of dismissal conferred on HRH. This was clearly omitted in Article XVI(6) of the Perak Constitution.

46. Unless we can be of further assistance, I would like to thank My Lords for hearing us and also like to thank my learned friend, Dato Cecil Abraham and the Learned and Honourable Attorney General, Datuk Ghani Patil for assisting the court to come to the right conclusion in this important case.


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