The Grounds of Judgment (GoJ) of the learned YA Dato' Abdul Aziz Abdul Rahim consist of 78 pages and I have the greatest of respect for the learned Judge.
In arriving at a decision and then writing the grounds of judgment, a Judge inevitably rely on the submissions by counsels from both sides or in the Perak case, all sides and of course, the Judge's own research and knowledge of the law.
I have no intention of saying that the judge had erred in his decision as I am in no position to say so. I am not and will not be part of the legal team to argue for Nizar or Zambry. On hindsight, if I had argued the case for Zambry I would have argued it in the manner as follows:
- On the finding of fact by the Judge that the LA of Perak had been "instructed" to affirm the Affidavit and "thus whatever one does under such instruction may not be out of one own freewill" (page 21 of the GoJ); I would say that "instruction" "instruct" or "instructed" in the case of persons in the legal profession must mean "request" as against the strong meaning of "In (sic) connotes that when one is under instruction one is under the control or command of another who is more superior". When a lawyer states that he needs further instructions on the matter, it must mean that he needs further discussion on the matter with the clients or any other party and not necessarily from person or persons of higher rank or someone superior. The LA of Perak is a lawyer and he should be treated as such. On the one hand the learned judge had stated that "there is nothing to show that the LA would benefit one way or the other if the case is decided in favour of the respondent or otherwise"; the Judge prefer the version of the affidavit deposed by Nizar instead of the LA of Perak on the events of the audience with the Sultan of Perak. I would say, that the LA's version should be taken as true and correct as he is neutral and he was instructed to tell the truth in the Affidavits. He was instructed to affirm the affidavit, must be read as an instruction to tell the truth in the affidavit. By accepting Nizar's version of the affidavits, the judge might have forgotten that he is the person to gain in the Judicial Review and thus an interested party. Nizar's version must be the one taken with a pinch of salt and not the LA's.
- The issue of resignation of the Three ADUNs. The judge admitted that the issue is pending in another Court in Ipoh. Why didn't the lawyers, for the sake of natural justice, fair play and goodwill, ask the Court to wait for the outcome or decision of that case before deciding on this case?
- In order to get the truth of the matter why was the Sultan not made a party to the proceeding? In the Ningkan case which was widely referred to, the Governor was made a party. Judicial Review is a trial normally by way of affidavits and why was the Sultan not asked or "instructed" to affirm an affidavit to depose the actual happenings and words spoken during the audience by Nizar and the LA on the Sultan. Why just accepts Nizar's deposition as the true version when there is a better deposition in the Sultan himself? Why just say that the LA's version is "tainted with instruction" and not stress on the fact that Nizar stand to gain all even when if he had lied on the matter? I'm sure the AG will readily agree that an affidavit by the Sultan can be deposed at any time and even if the Sultan need to be brought in as a party, the AG's consent will not be unnecessarily withheld?
- Once the MB holds office, he is only answerable to the Dewan Undangan Negeri and no one else including the Sultan? Why was it not argued that the Sultan is part of the Dewan? In the Undang-undang Tubuh it is stated as "The Legislature of the State shall consist of the RULER and one House, to be known as the Legislative Assembly" Since the Sultan is the Ruler and HRH is part of the Dewan, is it not that the MB is answerable to the Sultan too? Further it is also stated in the Undang-undang Tubuh that "The Executive authority of the State shall be vested in the Ruler but the executive functions may by law be conferred on other persons or authorities" and "All executive authority of the State shall be expressed to be taken in the name of the Ruler". Doesn't that mean the MB is subject to the Ruler i.e the Sultan?
- It was admitted by the parties in the proceeding that the power to appoint lies in the Sultan absolutely. The point of contention now is whether the Sultan has the power to dismiss? It was also argued by the parties that the power to dismiss shall only be by the vote of No Confidence on the floor of the Dewan. This is following the case of Ningkan. Why didn't the lawyers for Zambry argue that Ningkan is not at all on four walls with the Perak case? Let me list it as follows;
- Ningkan and Tawi Sli are both from the same political party and whoever is the Chief Minister of Sarawak will not change the Government.
- In Nizar and Zambry, both are from different political parties and any change of MB means change of Government.
- In Ningkan, the issue to be decided was whether Ningkan had "ceased to command the confidence of the majority of the member of the Legislative Assembly, whereas in the Perak case, IT IS THE LOST OF THE MAJORITY and not a question of having no confidence in Nizar. Nizar might have been a good MB and it was stated in the GoJ that "Therefore based on democratic practices any measure of lost of confidence in the MB's leadership should be taken by vote of confidence against him on the floor of the State Legislative Assembly. Only in this manner can the Menteri Besar be force to resign" I humbly say that in Perak, it is not the leadership of Nizar that is in question; it is the change of Government.
- In the Ningkan case, the Dewan was in sessions when the sacking by the Governor was done; in the sense that a day prior, there was a bill passed in the House. In the Perak case, the Dewan was not in sessions but the government of the day (not meaning Nizar here) had lost her majority by way of members pledging political support and confidence to a different political party. (As far as Nizar is concern, no ceasing of command of confidence as MB here).
- Pakatan cannot be termed as a political party. In Malaysia political party must be registered and if not registered with the relevant authority, it remains an unlawful association AND the court must not recognize unlawful association. By doing so, the Court have erred in law and in fact!
- As the Sultan is part of the DUN, isn't it not enough for the Sultan to act and make his judgment on the issue of "lost of majority"? Why can't the letter of pledge for confidence in the Barisan Nasional lodged with the Sultan by the 31 ADUNs enough for the Sultan to judge that the Pakatan Government had lost her majority? Need the Sultan be shown the hands of the ADUNs on the floor of the Dewan literally?
- Even if the show of hands in the Dewan is made, under the Undang-undang Tubuh, if the MB was slapped with a Vote of No Confidence, the MB can still have the option of requesting the Sultan to dissolve the Dewan and if the Sultan refuses the dissolution then only shall the MB tender his resignation. The Undang-undang Tubuh states "If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request the Ruler dissolves the Legislative assembly, he shall tender the resignation of the Executive Council" To me, Nizar sought the audience with the Sultan on the basis that he had known about the lost of majority in the Dewan. His request for dissolution had been rejected and thus he should have resigned and in fact he had resigned by surrendering all his authorities as the MB by moving out of office. Why was there no immediate application for Injunction made when Zambry was sworn-in or on Zambry's assuming of office?
I do hope that all matters be argued again at the Appeal stage. I hope Zambry appoint senior lawyers to impress on the appellate court that Ningkan or Akintola must be distinguished accordingly in deciding Nizar vs Zambry. Common sense must prevail and the wellbeing of the nation must always be of utmost importance and racial harmony must always be maitained.