Did the Federal Court contradict itself in Perak MB ruling?

By Debra Chong - The malaysian insider

KUALA LUMPUR, Feb 9 — The Federal Court today may have denied Datuk Seri Nizar Jamaluddin his Perak mentri besar’s post but its just-released collective written judgment is apparently riddled with contradictions, a retired judge said.

Nizar, 53, who had previously been declared the rightful mentri besar, lost the job when a three-man panel of Court of Appeal judges reversed the High Court’s decision last May 22.

The Pasir Panjang assemblyman then took it to the Federal Court and asked the Bench to address three issues based on the Perak Constitution, which, in plain English, translates to:

1. Whether the MB’s post is vacant when he did not resign; none of his peers had passed a vote of no confidence against him; he had asked the Sultan to dissolve the state assembly and start the process for fresh elections and was rejected.

2. Who decides that he has lost the confidence of the state assembly?

3. Who has the right to sack him if he refuses to resign?

The five apex court judges who replied were Tan Sri Alauddin Mohd Sheriff, Tan Sri Arifin Zakaria, Datuk Zulkefli Ahmad Makinuddin, Datuk Wira Ghazali Mohd Yusoff and Datuk Abdull Hamid Embong.

In declaring Datuk Seri Zambry Abd Kadir the rightful Perak MB, the coram summarised their reply, found at the end of 40-pages, as follows:

• Yes. (To quote: “The answer to the first question will be in the affirmative;)

• Yes. (“As for the second question, our answer is that under Article XVI(6) the question of confidence in the MB may be determined by means other than a vote of no-confidence in the LA;”)

• Yes. (“As for the third question our answer is that if the MB refuses to tender the resignation of the Executive Council under Article XVI(6) the MB and the Executive Council members are deemed to have vacated their respective offices.”)

But a closer look at the full judgment, made available to reporters a few hours after the decision was pronounced in Putrajaya, showed several seemingly contradicting statements, prompting a former judge to question the soundness of the top court’s reasoning in one of the most critical cases to affect the highest law of the land — the constitution.

Datuk Chan Nyarn Hoi was puzzled at a certain section that had earlier been read out in open court by the third highest-ranking judge in the country, Chief Judge of Malaya Arifin.

“However, we would add that this is by no means the end of the matter, as it is always open to the appellant [Nizar] to bring a vote of no confidence against the respondent [Zambry] in the LA [Legislative Assembly] or make a representation to HRH [His Royal Highness the Sultan of Perak] at any time if he thinks that the respondent does not enjoy the support of the majority of the members of the LA,” it said.

To the retired Court of Appeal judge, more popularly known as NH Chan, that particular section “sounds strange”.

“On the face of it, it sounds like they are contradicting themselves, isn’t it?” the 74-year-old asked The Malaysian Insider over the phone.

“They say [Nizar] can take a vote of no confidence now, but why couldn’t they do it earlier?” he wondered.

“And if it’s really contradicting, then the whole judgment is rubbish,” he added.

Chan, who now lives in Ipoh, refrained from commenting further until he had read through the full written judgment.