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Has The Law Truly Become an Ass?

February 10, 2010

Dr Dzulkefly Ahmad, Member, PAS Central Working Committee.

For an event with only two outcomes, there is a 50-50 chance of it happening either way. So you would have thought. Consequently, many wanted the verdict of 9 February of the country’s top judges in the apex court to reflect that logical outcome. More so in a constitutional impasse that has drawn attention of the entire nation, nay the entire world. 

But wouldn’t it be a wishful thinking to have ever thought that MB Nizar would win? Yes, perhaps very much, given the state of our very-much-to-be-desired judiciary. But in a not-so-clear-a-case like this acrimonious debate, you still harbour a little hope for a close call at least.

When the federal court returned a verdict of a thrashing 5-0 win to MB Zambry, you can’t blame the many that have alleged that the law has truly become an ass. I could still recall MB Nizar wanted a full 9-member bench. The country has just been saved from being humiliated the greatest shame of the century with a 9-0 verdict!

In the same vein, imagine the battle of two titans in a world cup with an outcome of 5-0 win. Now imagine a 9-0 win. Mind-shattering, too bizarre! That’s exactly the state of affairs in our beloved country right now, Mr PM. Beleaguered.

It’s most pathetic to have heard the premier asking Pakatan to accept the court’s verdict and move on. That truly was your knee-jerk response as usual, nothing really got higher up beyond your brain-stem. You have ‘to say something’ each time and you did. But true leaders have really ‘something to say’, regrettably, you didn’t.

We shall wait in anticipation, for the time when the rakyat will one day be telling you to just accept the verdict of the election, Najib ie your defeat, and move on. It may not be the next 13th GE as yet. But it could well be. You and your First Lady must pack your bag and get out of Putrajaya.

If you could gladly and heartily accept the verdict of that election that makes you as the man who led one of the world’s longest-governing parties to defeat, perhaps we might reconsider our revulsion and disgust to this verdict. Perhaps we could emulate your magnanimity and grace. But could you accept to just move on?

Be that as it may, the country has now to absorb the far-reaching implications of this verdict. Cynicism asides, I now write with a bipartisan interest, with the Federal Constitution (FC), the nation and the rakyat at heart.

Of the many implications, this piece is only highlighting one. But this one implication must be unequivocally and categorically said as it is the one that revises and transforms the FC through a backdoor manner of sort.

Never before had I wished to have a doctorate in law, only when ‘lawlessness’ and the assault on the FC have reached levels that were previously unimaginable. Yes, the verdict has out rightly disfigured the notion or doctrine of a constitutional monarchy.

Amidst their euphoria, the BN leaders seemed oblivious of the full import of the verdict. With the judgment by none other than the top judges of the apex court of the country, the principles governing a vibrant and functional parliamentary democracy are seriously challenged and critically compromised.

As this is my piece I’m going to ask, do judges really understand the concept of responsible government, where it is a conception of a system of government that embodies the principle of parliamentary accountability responsible to parliament (and if bicameral, primarily to The Dewan Rakyat, which is directly elected, and thus more representative than the Dewan Negara) rather than to the monarch, or, in the colonial context, to the imperial government.

The apex court has added another case to a list of cases that contravenes the very notion of constitutionalism and representative democracy, the very heartbeat of the FC. That the Monarch could refuse the appointment of a Menteri Besar chosen by the party in power is admittedly arguable as in Terengganu. That didn’t directly impinge and intrude on the practice of democracy but more appropriately to save democracy.

But if the Monarch could now dismiss the lawful Menteri Besar (and by so doing brings down a government ie causing a regime change) if he so chooses, one that is democratically elected and appointed by the people, this is totally not analogous and different from the former.

In very plain English, the Federal Court affirmed the role played by Sultan Azlan Shah in the change of government in Perak a year ago. The apex court concurred with the appellate court’s ruling that MB Nizar must resign after failing to get the Perak Sultan to dissolve the state assembly to pave the way for fresh elections.

It was the Sultan who interviewed the three elected representatives who resigned from Pakatan Rakyat and concluded that MB Nizar had lost the confidence of the state assembly. Incidentally, two of the three assemblymen were under indictment for corruption.

In the true spirit of a responsible government and a country that upholds constitutional monarchy, renowned constitutional law experts from Malaysia and abroad had critically opined that the proper forum to test a motion of no confidence should be the legislative assembly. The judges were also quick to penalise Nizar’s lawyers on a technical ground of not resorting to the right provision in their submission. But judges of such stature surely need no reminders from lay people to see the bigger picture of constitutionalism and its underpinning objectives.

The court in this instance has added another case to a list of cases that contravenes the idea of constitutionalism and democracy, which stand at the very heart of the FC. That is actually the bone of contention in this debate.

The intervention of the royal household indeed invited scorn from Malaysians and subsequently embroiled the Monarch and the palace into disrepute. This is most regrettable much as it is disfiguring the notion of a constitutional monarchy. But the powers-that-be were least concern for as long as they could achieve their political ends. In simple plain English again, theirs has now become a government appointed by the Monarch, not elected by the people.

Has the anger and disappointment with the palace gone away? No. The Merdeka Center survey shows clearly that a significant percentage of the people of Perak are dissatisfied with the role played by the palace in the Perak coup.

Some 74 per cent of voters in Perak felt that elections remain the best way to end the power grab in the state. In the same survey conducted by Merdeka Center, voters were asked to choose which they preferred: the economy or having a democratically-elected government. Sixty per cent of the respondents said they wanted a government elected democratically.

 That it is a very sad day for democracy is a gross understatement. But we must now move on. They have won this battle, but we want to win the final war!

 

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21 Comments leave one →
  1. February 10, 2010 5:51 am

    KUALA LUMPUR, Feb 9 – Mahkamah Persekutuan hari ini mungkin telah menafikan jawatan Datuk Seri Nizar Jamaluddin sebagai Menteri Besar Perak ; penghakiman bertulis kolektif yang baru di dedahkan ternyata penuh dengan kontradiksi, kata seorang pesara hakim.

    Nizar, 53, yang sebelumnya dinyatakan Mentri Besar yang sah, kehilangan jawatan ketika tiga panel hakim Mahkamah Rayuan menterbalikkan keputusan Mahkamah Tinggi pada 22 Mei lalu.

    Wakil Rakyat Pasir Panjang itu kemudiannya membawa kes tersebut ke Mahkamah Persekutuan dan meminta mahkamah mengatasi tiga isu berdasarkan Perlembagaan Perak, yang, dalam Bahasa Inggeris, diterjemahkan menjadi:

    1. Adakah jawatan MB kosong apabila ia tidak mengundurkan diri; tidak seorang daripada rakan-rakannya mengusul tidak percaya terhadapnya , dia telah meminta Sultan supaya membubarkan DUN dan memulakan proses PRU yang baru dan ditolak.

    2. Siapa yang memutuskan bahawa ia telah kehilangan kepercayaan daripada Dewan Undangan Negeri?

    3. Siapa yang berhak untuk memecatnya jika dia enggan untuk mengundurkan diri?

    Lima hakim mahkamah yang menjawab ialah Tan Sri Alauddin Mohd Sheriff, Tan Sri Arifin Zakaria, Datuk Zulkefli Ahmad Makinuddin, Datuk Wira Ghazali dan Datuk Mohd Yusoff Abdull Hamid Embong.

    Dalam pengisytiharan Datuk Seri Zambry Abdul Kadir sebagai MB Perak yang sah, yang diringkaskan koram jawapan mereka, pada akhir 40 muka halaman, sebagai berikut:

    # Ya. (Untuk kutipan: “Jawapan untuk soalan pertama akan berada di ya;)

    # Ya. ( “Adapun soalan kedua, jawapan kami adalah bahawa berdasarkan Perkara XVI (6) soalan tentang keyakinan dalam MB boleh ditentukan dengan cara selain usul tidak percaya di LA;”)

    #Ya. ( “Adapun soalan ketiga jawapan kita adalah bahawa jika MB menolak untuk meletakan jawatan Exco di bawah Perkara XVI (6) bahawa MB dan ahli Exconya dianggap telah mengosongkan pejabat masing-masing.”)

    Melihat lebih dekat tentang penghakiman penuh, yang di dedahkan kepada wartawan beberapa jam selepas keputusan itu diucapkan di Putrajaya, menunjukkan beberapa kenyataan yang nampaknya bertentangan, membuat seorang bekas hakim mempersoalkan logik atas alasan mahkamah ke atas salah satu kes yang paling kritikal untuk mempengaruhi perunundangan tertinggi negara – perlembagaan.

    Datuk Chan Hoi Nyarn bingung di bahagian tertentu yang sebelumnya telah dibacakan dalam sidang terbuka oleh hakim ketiga tertinggi di negara ini, Ketua Hakim Malaya Arifin.

    “Namun, kami akan menambah bahawa hal ini tidak bererti masalah telah berakhir, seperti selalu bahawa terbuka untuk pemohon [Nizar] untuk membawa usul tidak percaya terhadap responden [Zambry] di LA [DPR] atau membuat representasi untuk Kebawah Duli [Baginda Sultan Perak] bila saja jika ia berfikir bahawa responden tidak menikmati sokongan daripada majoriti ahli LA, “katanya.

    Bagi pesara hakim Mahkamah Rayuan, yang lebih dikenali sebagai NH Chan, bahawa bahagian tertentu “terdengar aneh”.

    “Ia jelas terpampang pada kedengarannya seperti mereka bertentangan sendiri, bukan?” Kata pesara hakim yang berusia 74 tahun itu.

    “Mereka mengatakan [Nizar] boleh membuat usul tidak percaya sekarang, tapi mengapa mereka tidak boleh melakukannya dahulu?” Beliau tertanya-tanya.

    “Dan jika itu benar-benar bertentangan, maka penghakiman tersebut adalah sampah,” tambahnya.

    Chan, yang sekarang tinggal di Ipoh, enggan memberikan komentar lebih lanjut sehingga ia telah membaca keseluruhan penilaian bertulis yang sepenuhnya (Malaysian Insider 10/2/10)

  2. Foo Wy Len permalink
    February 10, 2010 6:02 am

    Yesterday was a very very sad day indeed, but life goes on and we must move on to face the bigger challenge which will dawn upon us soon. As hopeful citizens, we are counting on PAS to play its part together with its partners in PR to free us from the shackles of UMNO/BN. Trusting the words and actions of you and your like-minded colleagues like YB Khalid, YB Nizar,YB Husam …. but we are also greatly alarmed, despaired and confused by the incessant calls by none other the President of PAS to call for muzakarah with UMNO! One thing that is as clear as daylight to us is if PAS is the same as UMNO, why is there a need to vote for PAS? After all we have been voting UMNO/BN for the past 52 years! Please don’t take our support for PAS for granted.

  3. Collin Abraham permalink
    February 10, 2010 6:19 am

    This analysis speaks volumes for the main reason that it covers the salient dimensions of the entire issue.Clearly this is a strong case where the law has indeed become an ass.

    With the greatest of respect and in all humility, I believe on the basis of the facts disclosed the case MUST now be re-submitted to the same court for clarification on points of law.

    Perhaps, without prejudice to the highest court in the land, the nine judges requested earlier should now be re-considered with the prayer and hope that some judges known for their ‘outspokeness’ may also be included.

  4. M Sri Ram permalink
    February 10, 2010 6:24 am

    Dear Dr,
    Thank you very much for this article of yours.
    It was an eye opener for a layman like me.
    The constituition has been raped to the fullest to satisfy the lust of those with vested interest.
    Please continue to provide and educated us by contributing articles from time to time.
    May GOD bless you.
    Warm Regards
    M. Sri Ram
    Subang Jaya.

  5. pjguy permalink
    February 10, 2010 6:32 am

    Dear YB Dr Zulkefly Ahmad

    Yes, a very well wriiten article. I agree, we must move on. Move Forward.
    We lost the battle but winning the WAR shall be our target destined to Putra Jaya.

    pjguy

  6. February 10, 2010 7:47 am

    Any news of timber/sand concession been given to Sultan of Perak’s interest?
    maybe that concession will be extended to include top judges.
    This country is for the elites. If you own long term concession or monopoly, like IPP’s, tolled highways, rice imports, the govenrment will honour the agreement, although the consumers, meaning the rakyats, will have to pay more for these items.
    for the rakyats, the govenrment will step and trod over you, and will never honour its resposibility to protect the rakyat, but to feed on them and the constitution is nothing more than toilet paper.

  7. February 10, 2010 8:44 am

    X premier lky, you may hold a couple for ransom, but you could not or should not hold a country’s future for ransom. If you are so called a man of principle, release the photos !

    May this the last best stint of your good deeds that were so well remembered.

  8. February 10, 2010 8:51 am

    5-0 verdict? And why not? Fools seldom differ.

    ‘A good Judge is the one who stays bought.’ ~ H L Mencken

  9. merlin permalink
    February 10, 2010 9:28 am

    Magnum 4D jackpot stands at RM 20 + mill. to date.
    If someone was to strike it, RM 4 mill. to each of the learned judge is not bad for half a days work by this weekend.
    In a DEMONCRACY we the people will always be the loser.

  10. harga2sen permalink
    February 10, 2010 9:33 am

    When I heard the news, I wondered whether these Judges, whom we can surmise by their names to be Muslims, are truly practicing Muslims; I wondered what they pray to in their 5 times a day prayer ritual – or indeed whether they pray at all. I know I have sinned by just making that statement but the error they have embarked upon is so gross that one just has to wonder what goes through their hearts and minds when these muslims with such grand titles before their names place their heads on the floor in submission to Allah in their prayers. I shudderred to think how it could be possible for anyone who submits to Allah as these Muslims surely must, can proudly come up with such gross injustices. Surely they are aware that they must answer to Allah for their actions – have they no fear? Perhaps they hope that someday in the future they will have the time to repent before God – I surely hope so because how can anyone bear the thought of being thrown into the fire of hell? No, I dont think anyone can bear these thoughts and perhaps therefore I was right in the first place – surely these so-called Muslim judges dont pray at all. How could they ? And if so, then I can perhaps understand and accept why their Hon’ble Judgements came to be what they were. Oh how cheap they sell themselves!

  11. mohd rafi mohd solleh permalink
    February 10, 2010 9:36 am

    Bolehkah PR membela rakyat jika sentiasa kalah?????????Adakah PR membela rakyat atau rakyat yang membela PR??????

  12. February 10, 2010 11:14 am

    No matter what, I refer DS Nizar as the rightful MB, while I address Zambry as ‘Perak MB’ as a form of delegitimization. The court may declare him as MB, but it’s su who choose who is the MB in our hearts.

  13. February 10, 2010 11:34 am

    Has the anger and disappointment with the palace gone away? No. The Merdeka Center survey shows clearly that a significant percentage of the people of Perak are dissatisfied with the role played by the palace in the Perak coup.
    ———————————-

    TDM should have done a more thorough on them when he had the chance. This must also be his greatest regret.

  14. motherchell permalink
    February 10, 2010 1:07 pm

    Great write Dr.
    Its been more a tragedy, by the way UMNO has kept the ones naive at the ends.
    We need more leaders as you to bring the change. You have my blessings for all that you do for the Country and people.
    You are PM material!

  15. Saifuddin Razak permalink
    February 10, 2010 3:12 pm

    That UMNO is willing to restore the powers of the King and sultans in order to cling on to power in Perak speaks volume of the loyalty of this party to Malaysia. Najib’s government has opened the door for more interventions from the palace in the governing of the state and country. Elected officials will now serve under the pleasure of the palace. If UMNO leaders don’t see this, they are doomed to lead Malaysia into disaster. Kiss 2020 vision goodbye. We are heading back to feudalism.

    • Babicina permalink
      February 10, 2010 4:39 pm

      I don’t think they are restoring the power of Monarchs…this is called manipulations or in layman’s terms “puppetry.”

      Not only monarchs, everything is manipulated to ensure they stay in power including Allah’s name, Islam, race,economy, sodomy (engineered) blah….

  16. Babicina permalink
    February 10, 2010 4:02 pm

    Thank you Djul for showing the friendly face of PAS. I just hate the face that Hassan Ali represents. You people truly reflect the virtues of Islam not like the Zul ass from PKR who claim to be Allah’s defender yet want to cooperate with UMNO!!! Do you think there is anything Islamic in UMNO face? I can only see $$$. They love power and $$$ so much they will even hijack the FC and make Malaysia a dirty word.

  17. s.s.seelan permalink
    February 10, 2010 5:40 pm

    Dear Sir,
    This is an article par excellance. And to write it in English from a Pas politician is simply stupendous. We salute you and Pas Sir. As one of your respondants commented, this is the friendly face of Pas that the rakyat want to see and experience. Hold the Holy book in your hands, if you must. But always carry peace in your hearts!!! This is a great country… how come they have the heart to tear it asunder through our Police, the MACC, the Judiciary, the Immigration Dept etc. Doesnt anyone in BN have a heart anymore?

    ssseelan.blogspot.com

  18. R.Prem Kumar permalink
    February 11, 2010 7:53 am

    I empathize with Nizar but just hold the horses a sec. Wasnt the YAB himself elated when a frog jumped over from the BN fold into their midst only to give turncoat a new meaning a few days later? Haste makes for waste. This is a sobering wake up call for the next GE. Show the powers to be what rule of the rakyat actually thinks of imperial apex court judgments.

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