The reply-in-submission by counsel for Perak Menteri Besar Nizar Jamaluddin at the Federal Court, among other issues, covers the absence of any express provision allowing the Sultan of Perak to dismiss the MB. Unless, of course, words are allowed to be imported into the text, which Philip Koh says is not a proper way to interpret the state Constitution.
Introduction
By Dr Lim Teck GheeEarlier this website posted the lawyers’ submissions for Perak Menteri Besar Nizar Jamaluddin at the Federal Court to make available for the general readership an understanding of the constitutional issues that are at stake in this legal contestation.
Our earlier posting on Nov 19 included the submission by Nizar’s lawyer Chan Kok Keong who underscored the proper limits of the Sultan of Perak under the state Constitution as to the sources upon which HRH ought to take advice from.
Following Chan’s submission was reproduced in CPI the complete legal submission which was the product of Nizar’s full legal team and presented by Haji Sulaiman Abdullah.
The initial positions of the full appellant submissions represented fresh submissions from that taken at the Court of Appeal, and consisting of reading the Perak Constitution textually and as a whole.
Under a section called ‘Casting off the Spell of Amir Kahar’ is a significant refutation of the preference by Court of Appeal for a case called Amir Kahar. This part of submission demonstrates that the High Court ruling which rejected two closely reasoned decisions of the Ningkan and Tun Mustapha cases were NOT part of the binding reasoning (ratio decidendi: reason for decision).
In Amir Kahar, the Sabah Chief Minister Joseph Pairin had already resigned and thus the High Court’s ruling is merely obiter dicta, i.e. a Latinism which means “not binding part of judicial observations???.
This posting today is a transcript of the closing reply made by Philip T.N. Koh in response to the Attorney-General’s submissions and submissions of Cecil Abraham, lead counsel for the respondent Zambry Abdul Kadir.
The thrust of Koh’s reply was that:
- nothing in the Perak Constitution when read textually and historically justifies a Court filling up the gap by implying His Royal Highness can deem vacated the post of Menteri Besar;
- Nothing in the Perak Constitution suggests that HRH can take upon role of interpreting the Perak Constitution, a role which expressly is reserved for the Federal Court;
- Nothing in the evidence demonstrates that the then MB Nizar behaved dishonorably or was recalcitrant in not resigning;
- disputes the so-called “undisputed facts??? as urged by lead counsel for Zambry that Nizar had lost the majority and pointing out that the Speaker V. Sivakumar could have resigned and a new Speaker – who is not a state assemblyman, e.g. parallel to the later BN nomination of R. Ganesan – can be appointed, and Sivakumar would then be able to exercise his vote for Pakatan.
These two postings – Parts 1 and 2 of the lawyers’ submissions – collectively are to be read as a whole.
They shed light on what should be an illuminating public discourse in democracy whilst the nation awaits the decision of the highest court of this land. It will be a decision which has ramifications even at the Federal level as it demarcates the power of constitutional monarchy and people’s sovereignty.
Part 1: Lawyers' submissions on Perak MB case
- 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. INTERPRETING THE CONSTITUTION
- In the Privy Council case from Nigeria, Adegbenro v Akintola Viscount Radcliffe asked whether there is anything in the Constitution that compels a certain way of interpreting the document.
Basically, there are three questions:-
WHO Interprets?
WHAT is being interpreted?
HOW is it interpreted? - The Learned and Honourable Attorney General and Learned Counsel for Dato’ Dr Zambry 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.
- 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.
IN OPEN COURT - 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.??? - 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.
- This is important as it shields and insulates His Royal Highness (“HRH???) from criticism of taking over the interpretive function.
- 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.
INSULATING FROM CRITICISM
- I refer again to jurisdiction of HRH to refer issues to the Federal Court under Article LXIV of the Perak Constitution. My Lords, this will shield HRH from criticism and contestations by either side of the divide.
- I repeat that this also insulates HRH from the sordid business of political horse trading.
- 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.
DEEMING VACANT
- We have already drawn My Lords’ attention to Articles XIX(1) and (1A) to the “Vacating the Throne??? provisions and how they can be “deemed vacant??? by operation of law in Part II of the Perak Constitution.
- Article XIX(1): says that “... the Sovereign shall be deemed to have vacated the throne.???
- Article XIX (1A) provides “... He shall cease to be the Sovereign and shall be deemed to have vacated the throne.???
- We also draw My Lords’ attention to Article XXXIV (Part 1) 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.???
- The text of the Perak Constitution itself provides in concise and clear language if there is such an intention. Yet it has been argued that under Article XVI(6) the post of the MB can be “deemed resigned??? or “SHALL become vacant.???
ABSENCE OF DEEMING PROVISION IN ARTICLE XVI(6)
- Simple clear words could have been introduced into Article XVI (6) but this was not done..
- 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.???
- Counsel for Respondent cannot ask this Court to “mind the gap??? and supply the omission with words not found in the text.
- We have referred to Merdeka University case which settles how constitutions are interpreted and nothing in the cases referred to refutes this.
- It is our submission that TEXTUALLY and STRUCTURALLY the Perak Constitution provides the balance and equilibrium to govern the constitutional polity.
- My Learned and Honourable friend, the Attorney General referred to his being in Amir Kahar’s case.
- 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.
CAN NIZAR BE DISMISSED?
- In an important passage in Tun Mustapha, 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.
- I now refer to the HRH’s Media Statement dated 5th February 2009:
“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.??? - With respect, this is tantamount to dismissal and/or deemed vacant. TEXTUALLY and STRUCTURALLY, the Perak State Constitution does not permit non existent words such as “deemed vacated??? or “cease office??? to to be read into Article XVI(6).
- 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???.
- 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.
CALM AND INDEPENDENT DELIBERATION
- 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.
- This did not happen here. On 5 Feb 09, 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.
- 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.
FACE THE FACTS
- 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.
- 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:- MB Nizar came to HRH with knowledge that he has lost the confidence of the majority of the members of the Legislative Assembly;
- 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???.
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 on hindsight.
- What is that knowledge?
Zainun JCA in the Court below opined that “an unenlightened MB will not go down well with the public.??? Is that what the facts bear out? - Let us refer to the crucial letter dated 5th February, 2009 written by MB Nizar to HRH. With My Lords’ leave, I read the contents of the letter.
- 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 a far cry 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 NizarFACE THE LAW
- 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 MB 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).
- 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. Unless the gap is filled by words such as “deemed resigned??? or “shall cease office???
FACE THE ASSEMBLY
- 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.???
- The Speaker also asked that the swearing in of Dato’ Dr Zambry be deferred “sehingga selepas mengadakan mesyuarat sidang Dewan Negeri Perak tersebut.???
- Was MB Nizar “dishonourable??? and afraid to face the Legislative Assembly?
CONTEMPORANEOUS DOCUMENT
- 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.
- Federal Court: It will be more helpful if there is an earlier letter or request (Dato Abdull Hamid Embong FCJ): .
Philip Koh : Yes My Lords, there is. We again refer 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.???FINDING OF FACT
- 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.
- 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.
NO POWER TO DISMISS
- 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. It has been omitted in Article XVI(6) of the Perak Constitution.
- 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 Patail for assisting the Court to come to the right conclusion in this important case.
Submission-in-Reply by Mr Philip Koh Tong Ngee
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