Was the Federal Court right in their rulling? (Perak MB vs MB)

The Federal Court, the highest in the country, has delivered a unanimous decision in declaring that Zambry Abd Kadir of BN is the rightful Perak menteri besar (MB).

President of the Court of Appeal, Justice Alauddin Mohd Sheriff, led a five-member bench in delivering the verdict.

He ruled that it is not necessary for a vote of confidence to be done in the state assembly, as the sultan can conduct his own inquiry to determine which party or coalition has the majority.

“This can be done through extraneous sources,” he said.

"There is nothing in Article 16 (6) or in any other provisions of the Perak Constitution stipulating the loss of confidence in the menteri besar may be gathered from the assembly only," he said.

"There is no requirement in the state constitution which requires a vote of no confidence to be tabled in the legislative assembly based on Article 16 (6)," he said.

Citing a Nigerian legal precedent - the Akintola matter - Arifin said there can be other sources than the state legislative assembly to determine who commands the majority in the House.

The sultan would have had sufficient evidence as to who commanded the majority in the Perak assembly or who suffered a lack of confidence, noted the judge. As such, the sultan would have been able to arrive at a decision (and call for the chief executive to vacate the post). Should an individual refuse to do so, the post can be deemed vacant.

Putting the legal jumbo mumbo aside,the Federal court judgement summarily states :-
1. The Ruler can decide whether the MB has lost confidence by virtue of letters saying so signed by the elected reps and upon consultation with the reps;
2. The Ruler can refuse to dissolve the state assembly if and when the MB has lost the support of the majority and he can further decide that the MB post is vacant when the majority of the elected reps lose confidence with the MB;
3. If the Ruler refuse to accept MB's request to dissolve the assembly then the MB must resign his post;
4. The Ruler can decide that whether the MB has lost the confidence of the reps in special palace meeting;
5. The Ruler can instruct MB to resign (if the Ruler is convinced that the MB has lost the majority support);

So did these Federal Court Judges made the right decision?
Point 1:

The role of the judiciary is to help fill in the gap in the state constitution with a process which is consistent with the spirit of democracy.

If the State Constitution is silence on the issue of removal, it does not automatically empower the Sultan to act on his personal capacity to decide who should be the legitimate menteri besar. What is the mechanism available to ensure that the Sultan does not err in his decision?
It is dangerous to go back to this road, letting the monarch to decide who should be the head of government, without potentially causing an irreparable destruction to Malaysia's democratic credentials.

Democracy is justice delivered and not denied. The whole episode of party hopping and the decision to sack a democratically elected government by appointing a new government supported by three controversial assemblymen is a mockery of people's mandate. This is the real problem, not who ends up governing Perak.

Point 2:

This decision by the Federal Court ignored the established precedents.

The precedents were set in the Stephen Kalong Ningkan case in Sarawak in 1966 and the Pairin Kitingan case in Sabah in 1985.

In both cases, the incumbent chief minister, were either removed by ruler's fiat or the appointment was challenged by a rival candidate for the post.

The Ningkan case established as a legal principle that once appointed, a chief minister could only be removed by a vote of no-confidence in the legislative assembly.

The judge's decision in the Pairin case upheld that principle.

In the Nizar vs Zambry case, (0n May 11, 2009) KL High Court judge Abdul Aziz Abdul Rahim had ruled that Nizar is the rightful menteri besar."He is, and was, at all material times the chief minister of Perak," Abdul Aziz told the court.

Justice Abdul Aziz was respectful of the established precedent in the case. Doctrinal consistency is highly valued in jurisprudential theory.

However, the appellate court's three-member bench unanimously overturned the decision in favour of Zambry

In jurisprudential theory, established precedents can be overthrown only if unique facts enter the vortex of discursive imperatives in which a case is decided.

There were no unique facts in the Nizar vs Zambry case.

Three state assemblypersons belonging to Nizar's Pakatan Rakyat faction abruptly became independents, leaning towards support for the BN.

Two of them were under indictment for corruption. In the circumstances, the motives of the duo for becoming BN leaning independents could not be said to be above cavil.

What is the consequence of this judgement?

Zaid Ibrahim, former law minister said, "Our judges in the upper echelon of the judiciary will continue to fail the people of this country. Today, the principles governing parliamentary democracy and the rule of law have been sacrificed because they have to please the political masters."

"I hope the BN leaders in the midst of their celebrations realise the significance of the ruling. It means that the monarch can refuse the appointment of a menteri besar chosen by the party in power (as in Terengganu) but now can dismiss the lawful menteri besar if he so chooses. Another black day for the country. "