Tuesday, May 12, 2009

Stephen Kalong Ningkan or Tawi Sli in Sarawak; Barisan or Pakatan in Perak?

I have written 17 articles on the Perak matter. All my articles were written on the basis of how I see it as a lawyer. When the Pakatan had done it right, I had categorically written that they are right and vice versa when the Barisan side was right.

The decision of Justice Dato' Abdul Aziz Rahim pronouncing that the legal MB is still Nizar even when Zambry had been sworned-in before the Sultan of Perak is really an interesting piece of judgment by a Judge of the High Court. Justice Dato' Aziz had based his decision taking the case of Stephen Kalong Ningkan as the precedent to be followed. He has not taken any step to distinguish Stephen Kalong Ningkan of Sarawak with the present Perak case. Stephen Kalong Ningkan was in the 60's with a Governor's decision as compared to the present Perak case where the Sultan's decision is in question. As a court of first instance, Justice Dato' Aziz might have thought that if he had distinguished the Ningkan case, he might be overruled by a higher Court. Knowing full well that the case will be brought on appeal no matter which way he decide, he found it safe to decide in favour of Nizar and to top it up with a refusal to grant a stay of execution pending appeal to the higher Court.

With that decision, things are put back to status quo i.e to the time when Zambry had not even been sworn-in before the Sultan.

By putting back Nizar as the MB of Perak, I did not hear or read about the position of the EXCOs. They were no prayers for the reinstatement of the Nizar EXCOs. That in effect brought Nizar to the situation of becoming an MB again without any EXCO members. It must be remembered that in the Constitution of Perak, the appointment of EXCOs lies in the hands of the Sultan. The Sultan had appointed EXCO members in the name of the 6 from Barisan side. Is the effect of the decision by Justice Dato' Aziz merely replacing Zambry alone and substituting it with Nizar?

In the Ningkan case of the 60's, it was just the Chief Minister alone. No mention of the State Ministers (in Sarawak the EXCO is equivalent to the State Minister). Stephen Kalong Ningkan and Tawi Sli, the new Chief Minister appointed by the Governor was from the same party. There was no change of government from one political party to another political party.

In the Perak case, it was in fact changing the Government; not just the Menteri Besar.

I have read Stephen Kalong Ningkan over and over again; and I am still wondering why it was not distinguished as it should be. Sarawak in the 60s and Perak now are totally distinguishable. Whether it was Tawi Sli or Ningkan who act as Chief Minister of Sarawak in the 60s; both are from the same party friendly to the Perikatan Government of Semenanjung at that time. In the case of the present Perak case, the reverting back to Nizar means changing the entire appearance of the Government with different ideologies and policies altogether.

Was it not argued by the lawyers before Justice Dato' Aziz in the manner that I have put forth? Is the criterion for the "votes of no confidence" be manifestly shown by way of showing of hands in the Dewan physically, so paramout? Can it not be taken judicial notice that the Sultan of Perak had duly adjudged that the Pakatan government had lost its majority to the Barisan side? Why didn't the Court recognise the fact that the Sultan is part of the State Assembly and being part thereof, the judgment of the Sultan should be recognised in the Court of Law or in the least respected?

In Ningkan, the lost of majority was among members of the same party or in the sense that the other members of the State Assembly had hated Ningkan and wanted Tawi Sli to take over; and had got the Governor to sack Ningkan.

That's not the position in Perak. Why was Ningkan followed in Perak when it should not? I hope on appeal, the matter be raised and let the Higher Court decide accordingly. As it is, I am of the opinion; there are matters of great public interest and legal issues to be decided possibly by the Federal Court.

In Sarawak it was between Stephen and Tawi Sli, whereas in Perak; it's between Pakatan or Barisan.

4 comments:

  1. As-Salam Bro DSN,..

    Hrmm,.now its clearer to me dat d Judge had given a wrong judgement,..heheh,..in othr word he screwed up real big & due to his judgement it sumhow had tarnished d image of d Sultan of Perak,..ade udang sebalik batu ke?? wallahualam,.. apa pun ur article & Written By Him puts forth a gud ground 4 UMNO/BN to wrest control of Perak,.. I gess d Judge tot d best way is to let dem resolved d issue in d Dewan thru a vote of no-no confidence to Nizat,..so Bro DSN, wic moved is UMNO/BN taking,..thru d Dewan or thru d court of appeal? bro, kalo buat dua2 boleh ke,.1st a Sidang Tegempaq & after Zambry is d MB still proceed wth d court of appeal to silent d critics,..heheh..jst anothr tot on a blog,..wat else can I say,..(,")

    JH

    p.s. Bro DSN,.. judge did mention about proper documented vote of no confidence as proof, dusen d word & tacts of d 'Learned' Sultan counts?? jst heran judge ni tak pikiaq ke sal maruah Sultan Azlan,..tst..tst..tst.. wallahualam.. Dari segi logik pikiran gue yg lembab skit ni, Sultan tu Pemerintah dan MB tu pentadbir,.Sultan mesti nak org yg dia percaya jaga Negeri dan Rakyat dia jadi hak Sultan kena amik kira gak le kalo dia dah bincang ngan Adun2 kona baring tu,..so d decision by d Sultan to appoint BN as d Administrator to his State is rite only question is d way it woz done,rite? or,..search me...I'm kinda confuse about dis politics of d impossible being possible & d possible being impossible,..heheh..dats politics..apo nak dikato,..(,")

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  2. Salam Dato',

    These are exactly the things that were bugging me last nite once the I learnt of the judgment by Justice Dato' Abdul Aziz.

    Is this a judgment that encompasses the whole Perak Exco or just for the office of MB?

    My goodness Dato', the rakyat are thirsty of new and positive development for Perak. Enough with this unhealthy politicking. If there is too much of bickering in Perak, nanti isi durian pun jadi masam (konon nya la).

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  3. Dear Dato',

    What puzzling me the whole night have been answered by you today. Thank you. I am not a law man, but do you think we have to compare apple with apple. Is the previous case is similar to the present one? Is that mean, Nizar will still be the Menteri Besar with the BN's EXCOs? Interesting topic for our grand grand children to learn law practice.

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  4. Dato'

    I am sure you are familiar with Datuk Amir Kahar [1995] 1 CLJ 184.

    To me that case is the authority for the proposition that the office of the exco becomes vacant upon the vacation of MB under whom the excos are serving.

    Of course that case is in the context of the state ministers and chief minister of Sabah.

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