Speaker vs Speaker: Judge slapping his own face? - Malaysiakini

By Kim Quek Sep 9, 09 4:55pm

A tragic yet hilarious court proceeding took place in the Ipoh High Court on Sept 8 when the judge blatantly contradicted himself in dismissing a suit brought by Perak's Pakatan Rakyat speaker against the state's Barisan Nasional speaker (yes, two speakers in the Perak assembly).

Judge Azahar Mohamed rejected V Sivakumar's suit to seek damages from R Ganesan for assault and false imprisonment during the chaotic and violent state assembly sitting on May 7.

He said the court had no jurisdiction to hear the case due to Federal Constitution Article 72 stipulating that "the validity of any proceeding in any state assembly cannot be questioned in any court".

And yet in the same breath he declared that "the decision of the legislative assembly to remove the plaintiff as speaker and to appoint the defendant was conclusive and had been fairly determined by the state assembly on May 7, 2009."

Now, the crux of the entire contention between the two speakers is: Who is on the right side of law in the violent tussle for the speaker's chair on May 7?

By declaring Ganesan as the rightful speaker, Judge Azahar is in fact making a legal judgment. Is that not a breach of Article 72? How come he has no jurisdiction to hear Sivakumar's grievances but has jurisdiction to judge Ganesan as legal speaker?

Is that not a contradiction of the highest order?

Apart from this atrocious double standard applied by the judge, the main flaw of the judgment is the inability to differentiate between assembly proceeding and criminal behaviour.

What Sivakumar is seeking is redress for the unlawful physical violence inflicted on him. And Article 72 covers only businesses conducted in the assembly - not unlawful and criminal act.

Judge Azahar has therefore wrongly used Article 72 to come to his judgment. To make it very clear that this is the case, I will quote in full the relevant clauses in Article 72 (Clauses 1 & 2) and explain the reasons why.

* Clause 1: The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

* Clause 2: No body shall be liable to any proceedings in any court in respect of anything said or vote given by him when taking part in proceedings of the Legislative Assembly of any State or of any committee thereof.

Note the operative words "proceedings" in Clause 1 and "anything said or any vote given" in Clause 2. It is abundantly clear what Article 72 refers to are the speeches and resolutions made in the assembly, not any criminal or unlawful act.

Tragedy and comedy

But what happened on May 7 was complete pandemonium and chaos in the assembly hall. There was no chance to conduct any business at all, least of all any resolution passed. In fact, the only business done on that day was the address by the Perak Regent Raja Nazrin Shah.

And how was Sivakumar "replaced" by Ganesan during that pandemonium?

While Sivakumar was sitting in the speaker's chair, hordes of police personnel entered the assembly hall, allegedly on Ganesan's order, and physically lifted, carried, dragged and moved speaker Sivakumar into a room where he was forcibly detained until the assembly sitting was over.

And as soon as Sivakumar was removed from the hall, police personnel escorted Ganesan into the hall and ushered him to the speakers chair, with police personnel making a line to stand guard in front of Ganesan to prevent any assemblymen from reaching the speaker's chair.

The entire tragedy-comedy was stage-managed by the police, and it is therefore more appropriate to say that while Sivakumar was elected by the assembly through a resolution, Ganesan was physically planted into the speaker's chair by the police. And that about sums up what happened on that tragic-hilarious day.

And since Judge Azahar appears to be so respectful of the constitutional principle of separation of power as demonstrated by his professed adherence to Article 72, is it not puzzling that he should have chosen to ignore completely the heinous violation of the doctrine of separation of power when hordes of police personnel invaded the assembly to physically replace one speaker with another?

Is it not another shining example of double standard in the Malaysia Boleh tradition?

After the series of judicial decisions that appear to wantonly trample the constitution and the law following the shameful power grab in Perak, the latest low represented by Azahar's decision makes us wonder how much lower our judiciary can sink into, as many more judicial decisions in the same series are still pending.

EC acted beyond powers in not holding polls in Perak, court told

Sept 4, 2009

KUALA LUMPUR: The Election Commission (EC) acted beyond its powers and functions in not holding by-elections for three state seats in Perak, the High Court here was told Friday.

Counsel Datuk S. Ambiga said the EC's decision in holding that the state assembly seats of Behrang, Changkat Jering and Jelapang were not vacated as a result of the resignation of the three assemblymen, as determined by the then speaker of the state assembly V. Sivakumar, was illegal and irrational.

"The fourth respondent (the EC) had usurped the powers and right of the speaker (Sivakumar) to determine that a resignation had taken place," argued Ambiga before Justice Lau Bee Lan in her chambers.

Ambiga, former president of the Bar Council, was representing Sivakumar in his leave application for a judicial review to compel the EC to declare the three seats vacant and hold by-elections.

In his application, Sivakumar had named state assemblymen Jamaluddin Mohd Radzi (Behrang), Mohd Osman Mohd Jailu (Changkat Jering) and Hee Yit Foong (Jelapang), and the EC as respondents.

Ambiga, in her submission, also contended that the EC, by its letter to Sivakumar dated Feb 5, 2009, had stated that it was unable to ascertain whether the three seats had been vacated and, therefore, could not call for by-elections.

"Having determined that it could not ascertain that a vacancy had occurred, the EC had contrarily made a decision that the three seats were still held by the first to third respondents," she said.

Sivakumar, 38, is seeking a court order to quash the EC's decision and to compel the EC to hold by-elections in the Behrang, Changkat Jering and Jelapang state constituencies.

He also wants the court to grant an injunction to stop Jamaluddin, Mohd Osman and Hee from acting as and carrying out the functions and duties of assemblymen of the respective state seats.

He is also seeking a writ of "quo warranto" to compel the trio to show under what basis or authority they still remained the elected representatives of their constituencies and carried out the responsibilities, functions and duties of an assemblyman.

The court fixed Sept 9 to hear the reply from the EC, represented by Senior Federal Counsel Datuk Kamaludin Md Said. - Bernama

Nizar: Sidang DUN Perak tetap diadakan Rabu ini 3 Sept 2009 - MStar

30 Ogos 2009 Oleh G. MANIMARAN

PETALING JAYA: Sidang Dewan Undangan Negeri (DUN) Perak akan tetap diadakan Rabu ini walaupun disifatkan sebagai tidak sah oleh Speaker diiktiraf Barisan Nasional (BN), kata bekas Menteri Besar, Datuk Seri Ir. Mohammad Nizar Jamaluddin.

"Sidang DUN Perak akan diadakan seperti yang telah ditetapkan dan sebagaimana notis yang telah dikeluarkan sebelum ini," kata beliau ketika dihubungi sebentar tadi.

Jelas Nizar, sidang DUN akan tetap diteruskan sebagimana telah dimaklumkan oleh V. Sivakumar "selaku Speaker yang sah" dalam notisnya.

"Sivakumar merupakan Speaker yang sah. (Datuk) Ganesan bukan Speaker," kata beliau yang juga Ahli Parlimen Bukit Gantang dan ADUN Pasir Panjang.

Oleh itu kata Nizar, Ganesan tidak boleh menghalang mana-mana ADUN daripada menghadiri sidang kali ini.

Ketika ditanya kemungkinan akan ada usaha menghalang sidang yang dimaksudkan itu sebagaimana pernah disaksikan 3 Mac lalu, Nizar memberitahu, usaha sedang diambil oleh Sivakumar untuk mengelakkan suasana sedemikian.

"YB Sivakumar sudah memohon kepada mahkamah agar dikeluarkan satu perintah bagi menghalang mana-mana pihak eksekutif daripada mengadakan halangan," katanya.

Permohonan itu telah dibuat baru-baru ini dan diharap keputusan akan diperoleh Selasa ini, katanya lagi.

Semalam, Datuk R. Ganesan, Speaker yang diiktitaf Barisan Nasional (BN) berkata, semua Ahli Dewan Undangan Negeri (ADUN) Perak tidak perlu menghadiri persidangan dewan yang dipanggil pada Rabu ini kerana arahan yang dikeluarkan adalah daripada sumber tidak sah.

Ganesan menegaskan, tindakan Sivakumar yang juga ADUN Tronoh memanggil sidang itu adalah pelik kerana beliau bukan lagi Speaker.

Menurut Nizar, notis untuk mengadakan sidang DUN perlu dikeluarkan 14 hari sebelum persidangan dan ia "telah diterima lebih awal daripada itu."

Pada Mei lalu, Sivakumar mengeluarkan notis sidang DUN tergempar 11 hari lebih awal sebagaimana sah diperuntukkan undang-undang, Perintah Tetap Dewan Negeri (PT)8(1).

Bagaimanapun ia dihalang dan terpaksa mengadakan sidang di bawah pokok berhampiran DUN.

Bar says BN Speaker filed notice after deadline - Malaysian Insider

KUALA LUMPUR, Aug 24 — The Bar Council has clarified that Perak Speaker Datuk R Ganesan had only filed a notice of cessation of practice as a lawyer on August 17, ten days after a statutory deadline for him to do so expired.

A letter to the Bar Council which was received on August 17 was however dated August 6.



The actual “Notice of Cessation of Practice as an Advocate and Solicitor” was only field on August 17, as was an accompanying statutory declaration.

Last week, former mentri besar Datuk Seri Mohammad Nizar Jamaluddin revealed that the former Sungkai assemblyman had infringed Article 36A of the Perak Constitution by failing to relinquish his job as a lawyer within three months of his appointment.

Bar Council secretary George Varughese said in a statement today the Bar Council had acknowledged receipt of Ganesan’s letter dated August 6.

But he pointed out that the “Notice of Cessation” was dated August 17.

In the statement, Varughese said Ganesan had faxed a letter to the Bar Council on August 13, six days after the deadline expired, claiming that he had ceased being a lawyer on August 6.

But the notice of cessation remained dated August 17, ten days after the legal deadline.

The Bar Council statement appears to back Perak PR lawmakers in their argument that Ganesan had breached the state constitution and could no longer be Speaker.

In a joint media statement today, Perak PR lawmakers said that while they still maintain Ganesan had not been properly elected Speaker on May 7, he should be disqualified now even if his appointment was accepted.

“We all know that Dato’ R. Ganesan was never properly elected as the Speaker of the Perak State Legislative Assembly at the sitting on 7/5/2009 where the lawful and legitimate Speaker YB V. Sivakumar was illegally and forcibly removed from the State Assembly.

“The purported election of Dato’ R. Ganesan by the BN elected representatives holding a sub-assembly within the Assembly was carried out before the opening of the session of the Legislative Assembly i.e before the opening speech of his Royal Highness the Regent of Perak. How can a proceeding or a decision made prior to the commencement of a meeting be valid?” they said.

As such the PR lawmakers said Sivakumar should still be recognised as the legitimate Perak state Speaker.

Pakatan wants BN Speaker removed for moonlighting - Malaysian Insider

Perak Speaker R. Ganesan stands accused of holding another job besides being the Speaker of the state assembly. — Picture by Choo Choy May

IPOH, Aug 21 — Another battle is raging over Datuk R. Ganesan’s validity as the Perak Speaker, with Pakatan Rakyat leaders here claiming he should be disqualified for holding two jobs — as Speaker and as a lawyer.

Ganesan has, however, denied this and claims he had stopped his practice since his appointment during the chaotic May 7 state assembly sitting.

Former mentri besar Datuk Seri Mohammad Nizar Jamaluddin revealed today that the former Sungkai assemblyman had infringed Article 36A of the Perak Constitution by failing to relinquish his job as a lawyer within three months of his appointment.

Article 36A of the Perak Constitution stipulates: A member who is elected to be the Speaker shall be disqualified from holding such office if after three months of his election to such office or at any time thereafter he is or becomes a member of any board of directors or board of management, or an officer or employee, or engages in the affairs or business, of any organisation or body, whether corporate or otherwise, or of any commercial, industrial or other undertaking, whether or not he receives any remuneration, reward, profit or benefit from it.

Nizar also showed proof to the media: a letter from the Bar Council dated August 12, confirming that Ganesan was still in possession of a valid Sijil Annual and Practising Certificate, registered with the council and sole proprietor of legal firm Messrs Ganesan & Associates.

The letter was in reply to a query by Chan Kok Keong, legal counsel for former Speaker V. Sivakumar, seeking information on Ganesan’s status.

“The council confirmed that as of August 11, more than three months past his supposed appointment, Ganesan was still an actively practising lawyer. This is not allowed under the State Constitution.

“In view of this, Ganesan should be disqualified and should stop receiving any form of remuneration from the state government,” said Nizar.

He added that when PR was in government, he, all his executive councillors and Speaker V. Sivakumar had resigned from their day jobs for holding government office was a full-time responsibility.

“I had to deregister myself as a professional engineer. All of us resigned and concentrated on administrating the government. This is common knowledge,” he said.

He reiterated however that by calling for Ganesan to be disqualified, it did not mean that that PR recognised the latter’s appointment.

“It only further affirms that Sivakumar had always been the rightful Speaker because Ganesan’s appointment was illegal,” he said.

Meanwhile, Ganesan has countered the accusation and fired another salvo of his own.

Shortly after the press conference, he showed proof to the media in the form of another letter from the Bar Council, dated August 20, which stated that he had ceased to be a solicitor as of August 6, just before the three-month deadline.

Ironically, the letter was signed by the same person as the one addressed to Chan on August 12.

“I have already resigned. And anyway, my practice stopped in May. Notifying the council is only a formality,” he said when contacted.

When informed of Ganesan’s letter, former senior executive councillor Datuk Ngeh Koo Ham was unfazed.

“I challenge Ganesan to show us the exact date that he had resigned as a lawyer. Let him answer to that,” he said.

It is learned that Ganesan had last week been served with an affidavit from Sivakumar, stating that he should be disqualified as the Speaker by virtue of him still holding office as a legal practitioner.

Certain quarters believe that Ganesan may have only applied for his resignation upon receiving the affidavit.

Earlier when he was asked for the exact date of his resignation, Ganesan said he could not remember as the matter had been handled by his lawyers.

“I am very busy right now so I hope you understand,” he said, when asked if he could clarify the matter immediately with his lawyers.P

Pakatan committee finds Perak Speaker guilty of contempt - Star

Jul 30, 2009 By CLARA CHOOI

clara.chooi@thestar.com.my

IPOH: The Pakatan Rakyat-endorsed Rights and Privileges Committee has found Perak Speaker Datuk R. Ganesan guilty of contempt of the House and will recommend a six-month jail term for him in the next sitting.

The committee will also serve a notice to Ganesan soon, directing the former Sungkai assemblyman to vacate the Speaker’s office and stop “impersonating” the Speaker.

Ousted Speaker V. Sivakumar said that the committee had made the decision after concluding its investigation Thursday into a complaint by Pokok Assam assemblyman Yee Seu Kai.

The complaint was against Ganesan’s appointment as the Speaker, his act of bringing the police into the State Assembly and the events surrounding the notorious May 7 sitting.

“The committee has heard testimonials from three witnesses and has concluded that Ganesan has committed contempt of the Assembly.

“We will report to the Assembly that the defendant (Ganesan) should immediately desist from holding himself out as Speaker.

“He should not be allowed to enter the Assembly building whether or not the Assembly is sitting,” Sivakumar said at a press conference at the Syuen Hotel here.

He said that the committee would propose to the Assembly that Ganesan be jailed for six-months or until the Assembly is dissolved, whichever is the sooner, and fined RM500,000 in default of six months’ jail or until the Assembly is dissolved, whichever is the sooner.

The Tronoh assemblyman, who is also chairman of the committee, said the decision was arrived at after it was established that the events in the May 7 sitting were invalid.

“We have accepted and adopted the expert opinion of Tommy Thomas after he was interviewed by the committee,” he said.

Thomas, he said, had explained that the committee, although considered defunct by the Barisan Nasional, was still the State Assembly’s valid select committee since the entire proceedings of the May 7 sitting was illegal.

“This is because the sitting was not declared open by the Raja Muda and as such, no resolution can be passed.

“This means that Ganesan’s appointment and my removal was not lawful,” he said.

Earlier, Sivakumar and the other Pakatan committee members were engaged in yet another face-off with the police and State Secretariat officials when they tried to hold their committee hearing inside the building.

The committee was turned away on Monday when it first tried to hold its hearing.

This time however, the argument turned ugly when Simpang Pulai assemblyman Chan Ming Kai of PKR attempted to push his way through the gates, resulting in a minor scuffle.

The group, which had arrived at the building gates at about 10am, only dispersed at 11.30am with a threat to State Secretary Datuk Dr Abdul Rahman Hashim -- “tell us to our face during our next committee hearing that you are prohibiting us from entering the building or we will force our way in.”

The group had also attempted to enter the building by claiming that they only wanted to have a cup of coffee in the cafeteria.

“We only want to enter the building in our capacity as elected representatives. Why are we being stopped?” said Sivakumar.

The committee will attempt to hold its second investigation at the State Secretariat on Friday and has summoned Perak Mentri Besar Datuk Seri Dr Zambry Abd Kadir and Deputy Speaker Hee Yit Foong.

'Committee dissolved’
In an immediate response, State assembly secretary Abdullah Antong Sabri said that the Rights and Privileges committee could no longer hold meetings as it is deemed to have been dissolved after the May 7 sitting.

He said the committee was valid for only one term and ceased to function after the State Assembly entered a new term, Bernama reported.

“New committee members were appointed during the meeting of the second term on May 7. As such the previous committee chaired by Sivakumar is no longer valid,” Abdullah said.

He said Ganesan was appointed the new State Assembly Speaker and chairman of the Rights and Privileges committee during the sitting.

Perak Pakatan wants PSC rep's termination reviewed - Star

Jul 28, 2009 By CLARA CHOOI

IPOH: The Perak Pakatan Rakyat has filed an application seeking a judicial review of the termination of its representative in the state's Public Services Commission (PSC) before his three-year term expired.

The affidavit for the representative, former Kampar MP and DAP member Ngoi Thiam Wah, was filed by counsel A. Magesan from legal firm A. Sivanesan and Co at the High Court here Tuesday.

Former exco member and lawyer A. Sivanesan said that affidavits for another five representatives, who were also terminated, would be filed over the week.

The five comprise of another DAP member, two from PAS and two from the PKR.

In his application, Ngoi is seeking for an order of certiorari to quash the termination notice issued by State Secretary Datuk Dr Abdul Rahman Hashim, which was made effective on June 30 this year.

He is also seeking a mandamus order to reinstate him as a commissioner or alternatively, for the State Secretary to pay him a compensation of RM61,200 as damages for his termination.

In his affidavit, Ngoi said that he was offered a post as a commissioner in the state's PSC via a letter from Dr Abdul Rahman dated Jan 1 this year.

The latter informed Ngoi that he was to assume duty for a three-year period beginning March 1 this year until Dec 31, 2012, and be paid a monthly allowance of RM1,700.

"He was also promised other benefits under Schedule 3 of the Public Services Commission Enactment 1959.

"However, he was not paid a single sen since his tenure commenced in March," said Sivanesan.

Sivanesan said that Ngoi later received the termination letter informing him, without providing a reason, that his services were terminated after June 30.

The letter was signed by one Asri Saad from the state's human resources division on behalf of Dr Abdul Rahman.

Sivanesan said that the Barisan government had committed a breach of contract by not adhering to the terms of Ngoi's appointment.

"Furthermore, when we (Pakatan) took over the government last year (2008), we never terminated the Barisan's commissioners in the PSC because we knew their terms had not yet expired.

"Only once when their terms expired in Dec 31, 2008, did we appoint our own commissioners to replace them," he said.

He added that the decision to appoint commissioners was the prerogative of the state executive council.

Commissioners in the PSC are responsible for the hiring and firing of civil servants in the state government.

MB vs MB: Nizar granted leave to appeal - Star

Jul 9, 2009 By M. MAGESWARI

PUTRAJAYA: The Federal Court has granted Datuk Seri Mohammad Nizar Jamaluddin leave to appeal the Court of Appeal’s May 22 ruling that Datuk Dr Zambry Abdul Kadir was the rightful mentri besar of Perak.

However, the court rejected Nizar’s application for a stay of execution on the appellate court’s decision, which means Zambry will continue to act as the chief executive of the state.

Court of Appeal president Justice Alauddin Mohd Sheriff, who headed a three-man panel, granted the application to appeal after no objections were raised.

Justice Alauddin and the other two judges, Chief Judge of Malaya Justice Arifin Zakaria and Federal Court judge Justice Zulkefli Ahmad Makinuddin, however, unanimously refused to grant a stay order against the lower court’s ruling on May 22.

For the leave application, the apex court allowed the formulation of three questions:

·whether the Perak Mentri Besar’s post may be and/or has been vacated under Article 16(6) of the Perak Constitution;

·whether the determination of the issue of confidence in the Perak Mentri Besar has to be made by members of the legislative assembly in its meeting via vote of no-confidence or by other means;

·and if the Mentri Besar refuses to tender the resignation of the executive council, could he be dismissed from office, his post be deemed vacant, or his post vacated under the Perak Constitution.

The court, however, did not set a date to hear the leave application.

On May 11, High Court (Appellate and Special Powers) judge Justice Abdul Aziz Abdul Rahim granted a declaratory relief to Nizar that he still is and was the Mentri Besar (MB) at all material times. However, following an appeal by Datuk Dr Zambry Abdul Kadir, the Court of Appeal’s three-man panel on May 22 unanimously declared the latter as the rightful Perak MB.

In his suit filed on Feb 13, Nizar challenged the legitimacy of Dr Zambry and the new state government.

At the outset of the proceedings yesterday, Nizar’s counsel Datuk S. Ambiga informed the Bench that her client’s lead counsel Sulaiman Abdullah was unable to be present due to his health reasons.

Ambiga said the parties had resolved three questions for the leave application.

Attorney-General Tan Sri Abdul Gani Patail, who acted as intervener, and Datuk Cecil Abraham who represented Dr Zambry as lead counsel, confirmed to the panel that they had no objections for leave.

Ambiga then applied for a stay against the Court of Appeal decision.

In elaborating the grounds for the stay application, Ambiga said essentially many of Nizar’s policies had been reversed that was detrimental to the welfare of the people of Perak.

Among the actions which Ambiga submitted that Nizar claimed did not have any benefit for the people of Perak included the failure to implement welfare programmes for senior citizens and poor as per allocated budget, the delay in the implementation of Ipoh Sentral transport project, the approval of 14,000ha of land to private companies, the auction of 15 Camry cars used as officials cars by Nizar and former exco team, the cancellation of the service of 817 village heads and 342 councillors.

“That is our case for stay, so that no steps are taken to reverse any of those policies,” she said.

Cecil opposed to the stay saying that the court had no jurisdicton to interfere in the executive power of MB and his executive council.

“Whether the policy is right or not, it is up to the politicians,” he said adding that there was no special circumstance and it was highly improper to grant a stay of execution.

Cecil said he was prepared to expedite the hearing of the leave.

“If the stay is granted, the High Court order will be reinstated and the applicant (Nizar) will become the Mentri Besar. This is what the court should not do,” he urged.

Abdul Gani, who opposed the stay, noted that Dr Zambry was acting as MB to maintain his status quo and the state of affairs while Nizar failed to show special reasons to warrant for the stay.

In reply, Ambiga said the court must give an interim order to prevent prejudice against Nizar.

Speaking to reporters later, Nizar said he was not satisfied with the implementation of certain policies and applied for stay to ensure the status quo and welfare of the people of Perak.

“If an agreement is signed with a company, it will be difficult to reverse it,” he added.

A prima facie farce in Zambry v Nizar - Malaysiakini

By NH Chan Jul 8, 09 12:01pm

Gobbledegook and regurgitation in Zambry v Nizar

I shall start with an aside on the dictionary definition of the two words which feature in the title of this article.

'Gobbledegook' means unintelligible language.

'Regurgitate' means repeat information without understanding it. 'Regurgitation' is the noun.

After you have read the article you should have an inkling of what I am trying to suggest with the words. You can then judge for yourself

There are only two points that really matter in this appeal: Clauses (2)(a) and (6) of Article 16 of the Perak constitution:

(2)(a) His Royal Highness shall first appoint as menteri besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the Assembly;

nizar appeal to federal court 190609 07(6) If the menteri besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.

The language of these two clauses, Clause (2)(a) and Clause (6), is easy to understand.

There is no ambiguity. Clause (2)(a) is definitive. It is only in this clause that the Ruler has been given the discretion to appoint a Menteri Besar which is based on his judgment.

On the other hand, it is only in Clause (6) where it is said that if the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly then he would be able to ask the Ruler to dissolve the Assembly.

If the request for the dissolution of the Assembly is withheld by the Ruler (who has the discretion to do so under Article 1 8(2)(b)), the incumbent Menteri Besar has to tender the resignation of the Executive Council.

It is important that we notice that there is no provision for the incumbent Menteri Besar to resign. In fact, in the present case, the incumbent Menteri Besar Nizar had refused to resign even though .he was ordered by the Ruler to do so.

Of course, all of us know that the Ruler has no such power to order anyone to do anything. It was unconstitutional of the Ruler to do so.

While members of the Executive Council hold office at the pleasure of the Ruler, it is not so with the Menteri Besar. Clause (7) of Article 16 states:

(7) Subject to Clause (6) a member of the Executive Council other than the Mentri Besar shall hold office at His Royal Highness' pleasure,

That said, I return to the first part of Clause (6) which I am going to
discuss below.

The proper duty of the conjunction "if" is to introduce a conditional sentence.

The operative word in Clause (6) is the conjunction "if'. I refer to 'Fowler's Modern English Usage, Second Edition', where it says:

if. To avoid possible ambiguity it may be prudent to confine if to its proper duty of introducing the protasis of a conditional sentence, and not to use it as a substitute for though or whether or (with not) to introduce a possible alternative.

In case you do not know the meaning of the word "protasis", it means the clause that states the condition in a conditional sentence. In English the protasis is generally introduced by if or unless.

But don't trust Microsoft's word processor because it suggests the word "protasis" does not exist in the English language.

Of course, Fowler is the authority on the usage of the English language (Churchill wrote to the Director of Military Intelligence about the plans for the Normandy landings, "Why must you use intensive here?

Intense is the right word. You should read Fowler' s Modern English Usage on the use of the two words"). Or you may use a good dictionary, not a condensed one, and you will find the word.

nizar appeal to federal court 190609 04The dictionary meaning of the conjunction "if' means "on condition that, whenever" or "supposing that, in the event that".

In the present context, if is used to mean "on condition that, whenever".

So that Clause (6) is to read like this: On condition that "the menteri besar ceases to command the confidence of the majority of the Members of the Legislative Assembly, then," he can request the Ruler to dissolve the Assembly. This sentence means that "whenever" a Menteri Besar has ceased to command the confidence of the majority of the Assembly, he can request the Ruler to dissolve the Assembly. As stated in Fowler, the proper duty of "if' is to confine the word to introducing the protasis of a conditional sentence.

The condition in the sentence is that the MB's loss of confidence in the Legislative Assembly has to be established first before the MB can request the Sultan to dissolve the Assembly.

Therefore, it is only on the condition that a menteri besar has lost (ceased to command) the confidence of the majority of the Assembly before he can request the Ruler to dissolve the Assembly.

Definitely, it is not up to Nizar the incumbent menteri besar to say that he has lost the confidence of the Assembly.

How could he be sure of that without a vote being taken at the Assembly?

At best, Nizar could only be guessing. Obviously, the only way in which it could be shown with any degree of certainty that Nizar had lost the confidence of the majority of the members of the Assembly is to go to the Assembly itself for a vote to be taken.

But what happens when an MB had lost a formal vote of confidence in the Assembly and still refused to resign?

But then, one may ask the hypothetical question (because this is not the case here), what happens when an MB knows by a vote being taken in the Legislative Assembly that he has lost the confidence of the majority of the Assembly?

Can he refuse to resign? Professor Kevin YL Tan in his essay which appears on the web portal LoyarBurok tells us that: This happened in Kelantan in 1977 when its MB, Datuk Mohamed Nasir refused to resign even though he had lost a formal vote of confidence in the Kelantan LA, been sacked by his own party, and had his request for dissolution of the LA refused by the Sultan of Kelantan.

The impasse led to the declaration of a state of emergency by the Federal Government that lasted three months, after which the LA (legislative assemby)was dissolved for fresh elections.

zambry vs nizar court of appeal 220509Alas, this single precedent is not particularly instructive. No legal solution was possible and ultimately, the situation was resolved politically by the Sultan dissolving the LA and allowing fresh elections to be called.

Perhaps, all rulers and governors should, as a matter of course, accede to requests by their respective MBs to dissolve the LA for fresh elections to be called unless the ruler has a premonition that a calamity might befall the state if he so acceded.

That way, new mandates are quickly determined and the business of government can proceed once a new leadership is established.

Indeed, the sultan of Perak supported this view of a ruler's powers when he was Lord President.

In his 1992 essay, 'The Role of Constitutional Rulers', he opined: "... under normal circumstances, it is taken for granted that the Yang diPertuan Agong would not withhold his consent to a request for dissolution of Parliament. His role under such a situation is purely formal."

This point was picked up by counsel for Nizar and cited with approval by the High Court.

The Sultan has no explicit power to dismiss an MB under the Perak Constitution. Indeed, neither is the Yang di-Pertuan Agong empowered to dismiss a Prime Minister under the Federal Constitution.

It seems that ordinary people are better than these judges because they could understand what the two clauses mean.

Now that you are apprised of the meaning of the two clauses that really matter in the appeal, you should be in a better position than the appellate judges who have missed the points to come to their decision.

We all know that whenever there is a situation when there is no Menteri Besar, such as when the incumbent MB dies or resigns or has been disqualified as an assemblyman (because Nizar is an assemblyman) or has been removed from office by the assembly, then the Ruler "shall first appoint as Mentri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the Assembly": so says Article 16(2)(a).

This is the only occasion in which a Ruler can use his 'judgment" to select and appoint a Menteri Besar.

We also know that a Menteri Besar, once he has been appointed by the Sultan under Clause (2)(a), cannot be removed by him. The MB does not hold office at the Sultan's pleasure.

The Sultan has no power to dismiss the incumbent Menteri Besar Nizar Jamaluddin or to declare the office of Menteri Besar vacant: so says Article 16(7), "Subject to Clause (6) a member of the Executive Council other than the Menteri Besar shall hold office at His Royal Highness' pleasure" (the emphasis is mine).

nizar and perak pakatan adun tree planting event 270509 02So that when Nizar refused to resign after the Sultan has declined to dissolve the Legislative Assembly, the Sultan has no power to dismiss him nor has he the power to appoint another Menteri Besar when Nizar is still the Menteri Besar as he has not resigned his office.

So then, how are we to determine a loss of confidence in the Assembly? Certainly not by an outsider like us. Not even Nizar himself was in any position to say that he did not command the confidence of the majority of the Legislative Assembly. Only the Assembly can determine if Nizar has lost the confidence of the majority of its members.

Therefore, the reality of the situation is that Nizar is still the menteri besar when he refused to resign and the Sultan has no power to dismiss him or to deem the office of Menteri Besar has fallen vacant. The Sultan has no discretion or power to appoint a second Menteri Besar when the incumbent is still in office.

The Perak constitution does not provide for two menteris besar.

Any decision of the courts otherwise is a perverse one because such a decision is not made according to the Laws of the Constitution of Perak.

Don't you think all of you ordinary people are better judges than these recalcitrant judges of the Court of Appeal?

At least (now that you are informed of the constitutional provisions) you know how to apply the relevant law which is applicable in the present case, whereas the judges don't seem to know how to do it.

Now that you know the law which applies, you are in a position to judge the two judges.

So far the Court of Appeal has issued two written judgments. Let us see if the judges who wrote them come up to your expectations.

Raus Sharif JCA who sat as the chairman of this Court of Appeal meandered through 43 tedious pages of his 48 page judgment before he came to the conclusion that Article 16(6) makes no reference to a motion of loss of confidence to be passed by the Legislative Assembly and therefore he concluded that the High Court judge had erred in law. This is what Raus JCA said, p 43:

For the above reasons, I find that the learned judge had erred in law in concluding that the only manner in which the loss of confidence of the majority of members of the Legislative Assembly could only be ascertained by way of motion to be passed in the Legislative Assembly. Such a finding is contrary to the provisions of Article XVI(6) of the Perak State Constitution which makes no reference to such a motion having to be tabled.

Remember my explanation above about the conjunction if? In the instant case the use of the conjunction it means "on condition that" or "whenever".

So that the opening words of Article 16(6) should read, thus: On condition that "the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then," he can request the Ruler to dissolve the Assembly. In other words, the loss of confidence in the Legislative Assembly must be established first before the MB can make his request to the Ruler for a dissolution of the Assembly.

Obviously the only way to establish that Nizar has lost the confidence of the majority is to ask the members of the Assembly themselves.

sivakumar and zambry at perak state assembly 130509 04It would be incorrect to ask Nizar because he could only guess at his own popularity.

Undoubtedly, you must never ask the Ruler to determine the loss of confidence of a menteri besar in the legislative assembly as he has no power to determine on the status of the MB's popularity in the assembly.

And if the Court of Appeal were to confer such power on the Ruler, then it is a blatant refusal of the court to administer justice according to the Laws of the Constitution of Perak.

Of course, in Article 36(2) the sultan is given a general power "to prorogue or dissolve the legislative assembly".

Yet, the judge has relied on the Ruler's determination that Nizar no longer commands the confidence of members of the assembly. This is what Raus Sharif JCA said, at p 40 of his 48-page judgment:

It is an undisputed fact that His Royal Highness interviewed the 3 independent members separately in order to ascertain whether they were really supporting Barisan National. They informed His Royal Highness that they no longer supported Nizar as the menteri besar. Instead they declared their support to Barisan Nasional.

At the end of it, His Royal Highness was satisfied that with the 31 members of the Legislative Assembly supporting the Barisan Nasional, Nizar no longer command the confidence of the majority of the mambers of the Legislative Assembly.

This is a trashy piece of reasoning coming from an appellate judge. Raus Sharif JCA seems not to know that the Ruler is only a constitutional monarch with no prerogative power to do anything but that which the law allows him.

Plainly, the use of the conjunction if in Clause (6) speaks volumes. The loss of confidence of the MB in the Legislative Assembly must be established first before the MB can make his request to the Sultan to dissolve the Assembly. In this case Nizar requested the Sultan to dissolve the Legislative Assembly before it could be established that the MJ3 has lost the confidence of the majority in the Assembly.

Without doubt, it must not be left to interested parties - neither Nizar nor Zambry and his cohorts - to determine the loss of confidence of a Menteri Besar in the legislature.

Not even a constitutional monarch could determine the loss of confidence of a Menteri Besar in the Legislative Assembly because he has no power to do so.

Not even the judges can confer on themselves a power which does not exist to determine the loss of confidence in the Legislative Assembly of a Menteri Besar except the Assembly itself. It would be unfair and unjust to do so.

Judgment of Ahmad Muarop JCA

Ahmad Maarop JCA arrived at the same conclusion as Raus Sharif JCA except that Ahmad Maarop JCA is more long-winded. At page 42 of his 76 page convoluted judgment Ahmad Maarop JCA said:

In conclusion, I hold that there is no mandatory and1or express requirement in the Perak State Constitution that provides that there must be a vote of no confidence passed in the Legislative Assembly against Nizar before he ceased to command the confidence of the majority of the members of the Legislative Assembly.

The fact that he ceased to command the confidence of the majority of the members of the Legislative Assembly under Article XVI(6) could be established by other means.

zambry perak state pc 130509 03Thus, His Royal Highness was right in making enquiries to satisfy himself as to whether Nizar had in fact ceased to command the confidence of the majority of the members of the Legislative Assembly, in considering Nizar' s request for the dissolution of the legislative assembly.

It took this judge 42 pages to reach this conclusion.

At the recent launch of my book, How to Judge the Judges, on 29 June 2009 Justice Gopal Sri Ram FCJ remarked, "But where a judgment is tainted with intellectual dishonesty there is nothing much you can do except to expose the fallacy of the grounds put forth to justify a conclusion already reached".

Now let us expose the fallacy of the finding of this judge.

The judge said that whether Nizar had ceased to command the majority in the Assembly could be established by other means. One may ask, what other means could there be? He could only give one example.

He said, "Thus, His Royal Highness was right in making enquiries to satisfy himself as to whether Nizar had in fact ceased to command the confidence of the majority of the members of the Legislative Assembly, in considering Nizar's request for the dissolution of the Legislative Assembly".

But, all of us know that the Sultan has no power to do anything except that which the law allows him. As professor Andrew Harding has correctly said in his essay 'Crisis of Confidence and Perak's Constitutional Impasse' dated June 8, 2009 which is featured on the web portals Malaysian Insider and loyarburok.com:

.... the issue seems to become, who was empowered to make the judgment as to whether the MB still had the confidence of a majority? The Judge gave a correct answer to this question by saying it is the legislature, not the head of state.
.....

But, as the Judge also said, it is in any event clear that the head of state is not given the power under Article 16(6), as he is under Article 16(2)(a), to make a judgment as to matters of confidence

The Judge in Professor Harding's essay is the much respected Mr. Justice Abdul Azis of the High Court.

Conclusion

I trust we have exposed the fallacy of the grounds put forth by the two judges of the Court of Appeal.

All of you, (the ordinary people) who have been informed of the relevant provisions of the Laws of the Constitution of Perak by reading this article, knew that there are only two clauses of Article 16 which apply to the points that really matter before the Court of Appeal.

In Clause (2)(a) the head of state is empowered to make a judgment as to matters of confidence. Whereas in Clause (6) he is not given the power to do so but the legislature is.

Justice Abdul Aziz in the High Court gave the correct answer by saying it is the legislature, not the head of state, who is empowered to make the judgment as to whether the MB still had the confidence of a majority.

And, I trust, all of you would agree with him.

Raus Sharif and Abmad Maarop JJCA are wrong. They are wrong because there is no empowering provision in Article 16(6). They did not apply the law as it stands.

Indeed they have blatantly refused to apply the Laws of the Constitution of Perak. They should be ashamed of themselves for not administering justice according to law. The common people of this country can now judge them for what they are.

The full text of the two judgments can be found on the Internet. If you, as a layman, find the judgments unintelligible then that is what the word gobbledygook means.

On the other hand, if you find the lengthy judgments merely repeating information which is unnecessary to the two points that matter in the appeal then that is precisely what regurgitation means.

So now you can appreciate the title of this essay.


NH CHAN is a former Court of Appeal judge famous for his 'All is not well in the House of Denmark' comment regarding judicial corruption. He was referring to the Kuala Lumpur High Court's commercial division located in Wisma Denmark. The quote is based on Shakespeare's 'Something is rotten in the state of Denmark'. He now lives in Ipoh.

Judgment day tomorrow in MB vs MB case - The Malaysian Insider

Nizar and his wife taking a break from the hearing. - Picture by Choo Choy May

PUTRAJAYA, May 21 — The Court of Appeal will decide tomorrow if it agrees with the Kuala Lumpur High Court’s ruling that Datuk Seri Nizar Jamaluddin is the rightful Perak mentri besar.

A three men panel heard submissions today from lawyers representing Barisan Nasional’s (BN) Datuk Seri Dr Zambry Abd Kadir and Pakatan Rakyat’s (PR) Nizar, in what was a repeat of the protracted trial in the High Court.

Both teams put forward the same arguments they made during the high court case.

Zambry’s team arguing that Article 16 (6) of the Perak constitution allowed the state ruler to ask the MB to resign if he is deemed to have lost the confidence of the state assembly.

Nizar’s lawyers contended that a state chief executive can only be deemed to have lost the confidence of the legislature through a vote in the state assembly.
Justice Raus Shariff says question before court is whether the trial judge had interpreted the Perak Constitution correctly.

"If wrong, the appeal will be allowed, if right, the appeal will be dismissed," he said.

The following day Zambry filed an appeal and obtained a stay order from Court of Appeal judge Ramly Ali who had sat as a single judge.

Following this Nizar filed his own application to set aside the stay order granted to Zambry.

Nizar's application is to set aside the stay order obtained by Zambry against the High Court ruling which had declared Nizar as the legitimate mentri besar.

He had also requested that the matter be heard by a five-member Court of Appeal panel, instead of the usual three, as it was a matter of public interest and touched on constitutional issues.

However, Nizar failed to get his request. It is learnt that his letter of request did not reach the Court of Appeal president Alauddin Md Sheriff on time.

This morning, the parties agreed that Zambry's appeal will be heard first.

The three-member panel hearing the matter comprises Justices Abdul Raus Sharif, Datuk Zainun Ali and Ahmad Maarop.

This legal battle between Nizar and Zambry is largely seen by many as the final judicial attempt by either party to stamp their authority as the rightful and legitimate Perak menteri besar.

The hearing is expected to take a few days before the court makes a ruling on both the matters before it.

The hearing began with Zambry's counsel Datuk Cecil Abraham arguing that High Court judge Abdul Aziz Ab Rahim had not given proper weight to the evidence produced on the legality of Zambry's appointment.

Cecil said the evidence had showed that the Sultan of Perak had ordered Nizar to resign which the latter had refused to do so.

The constitutional provision provides that Nizar resign following the Sultan's directive, said counsel.

Cecil said the Ruler was only exercising his royal prerogative under Article 16(6) of the Perak constitution to reject Nizar's request for the assembly to be dissolved.

Attorney-General Tan Sri Abdul Gani Patail, who has intervened in the matter to assist the court, started his submissions after Cecil ended his.

Gani said there were no provisions under the Perak constitution for a mentri besar to be voted out through a vote of no confidence to show that he had lost the majority in the House.

He argued that if the mentri besar had lost the confidence of the House, he must resign.

Nizar's lawyer Sulaiman Abdullah submitted after the lunch break.

He said that there was no provision in the state constitution that gave express power for the sultan to sack a mentri besar.

He argued that the Sultan could dismiss the state exco but not the MB.

Perak: Solution lies in the dissolution - Malaysiakini

P Ramakrishnan | May 20, 09 4:51pm

There must have been a valid reason for stating that the law is an ass. Now we understand why it is so. The open-handed stay order granted by a single judge - Ramly Ali - of the court of appeal confirms why the law is an ass.

On May 11, High Court Justice Abdul Aziz Abdul Rahim in a well-argued judgment declared that Mohd Nizar Jamaluddin was the duly appointed Perak Menteri Besar at all material times and that Zambry Abdul Kadir was never the MB of Perak at any material time. In other words, Zambry has no business to be or pretend to be the MB of Perak.

The high court decision had positively removed all doubts and confusion as to who was the rightful and legitimate MB of Perak.

The next day, May 12, Ramly muddied the water by granting a stay order on the high court decision without any conditions. This decision confounded the nation and left everyone dumbfounded.

As a result of this absurd decision of Ramly, the position of the genuine MB has been undermined and has left him in a limbo unable to discharge his duties and serve the needs of Perakians.

But on the other hand, the stay order seems to have given the man who never was the MB of Perak at any time whatsoever a second lease of life to occupy the MB's chair. This ridiculous situation has bewildered every thinking Malaysian into a state of utter confusion .

If Ramly had granted a conditional order restraining both Nizar and Zambry from acting as MB in order to enable Nizar's suit seeking to set aside this order to be heard and decided then such a decision would have been acceptable.

But this order had made a mockery of the law and shattered the people's confidence in our judiciary. This is the reason why people have so little trust in the system of justice. This is why people despair when decisions are dished out by our courts.

We must be realistic and realise that ultimately, the debacle and the dilemma confronting Perakians cannot be decided by the courts. The courts would only delay the outcome and prolong the uncertainties and provoke further political reactions endangering the peace and harmony enjoyed by the people for the last one year.

It is important to realise that this problem cannot be solved by the courts. Only two people can bring relief to this dangerous situation.

One of them is the prime minister who was implicated in causing this problem in Perak. He has stated that he wants to feel the pulse of the people so that he could be the people's PM. He must know what the feeling on the ground is.

The senate president, the chairperson of Suhakam, MCA, Gerakan, eminent lawyers, concerned citizens, civil society and a host of prominent and caring individuals have called for the dissolution of the Perak state assembly to overcome the present political stalemate in Perak.

He should heed these feelings and demands of the people and make a second trip to the palace and plead with His Royal Highness, the Sultan of Perak, to dissolve the Perak state assembly. He cannot ignore this groundswell any longer if he lays any claim in wanting to be the people's PM.

He must undo the present mess in Perak and restore stability in that state. He must rise above politics and act as a statesman in the interest of the country. This is one duty that he must perform as soon as possible with all sincerity.

The other personage who can definitely and incisively resolve the political turmoil and the upheaval in Perak is His Royal Highness, the Sultan of Perak. The sultan by now must know how angry and upset his subjects are that three unscrupulous politicians have subverted democracy and overturned a people's government by their unbecoming conduct. They have frustrated a duly elected government of the people and made nonsense of the democratic will of the people.

His Royal Highness must take cognisance of the sound and persuasive judgment of the high court on May 11.

His Royal Highness must surely be aware that more suits filed in the courts will only delay and contribute to more frustrations; they need not necessarily mean more justice for this politically unresolved matter.

His Royal Highness must surely be aware that his subjects want a political settlement and it is they who must decide who should form their state government.

To enable the Perakians to solve this problem that has been festering like a sore wound for more than three months, please dissolve the Perak state assembly.

There is no other way, no other solution.

Why no Federal Court written judgment on Perak – The Malaysian Insider

By NH Chan

MAY 19 - Do you know why the Federal Court is not giving a written judgment in the Perak debacle?

The answer can be simply put. It is because Article 72 (1) of the Federal Constitution is written in unambiguous language which even a child can understand.

As I have said before in an earlier article that the words, “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”, mean what they say.

Nothing can be plainer than that. No one in his right senses would try to interpret the obvious meaning of the words in Article 72, unless he wants to say the words mean something else. But the Federal Court was not prepared to do that. And the reason is because they do not want to be known as Humpty Dumpty judges.

Remember Humpty Dumpty in Lewis Carrol’s, “Through the looking Glass?”:

“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”

So the judges of the Federal Court did the unthinkable. They blatantly refused to apply the constitutional provision as it stands. They ignored it altogether.

But by so doing they have committed the cardinal sin of not administering justice according to law. It is the duty of every judge, indeed it is his only function, to administer justice according to law. And the law, in this context, is Article 72 (1) of the Federal Constitution which is the supreme law of the land.

Said Lord Denning, What Next in the Law, p 319:

“Parliament is supreme. Every law enacted by Parliament must be obeyed to the letter. No matter how unreasonable or unjust it may be, nevertheless, the judges have no option. They must apply the statute as it stands.”

Since the judges of the Federal Court, especially the infamous five, have refused to apply Article 72 (1) as it stands, they have, as a result, impaled themselves on the horns of their own dilemma.

They have, so to speak, placed themselves between the devil and the deep blue sea. Either way their position is untenable. By refusing to apply Article 72(1) of the Federal Constitution as it stands they would be guilty of a misuse of power.

As put by Lord Denning, ibid, p 380:

“May not the judges themselves sometimes abuse or misuse their power? It is their duty to administer and apply the law of the land. If they should divert it or depart from it and do so knowingly, they themselves would be guilty of a misuse of power.

And, in this country, this could be a ground for the judges to be removed from office. This is what section 2 of the Judges’ Code of Ethics 1994 says:

2. (1) This Code of Ethics shall apply throughout the period of his service.

(2) The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.

And section 3 (1)(d) says:

3. (1) A judge shall not -

(d) conduct himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto;

Judging by the unfair treatment of Nizar in his encounter with the Federal Court, public opinion has no doubt that the judges of the Federal Court has brought discredit to the Judiciary. The words of section 3(1)(d) are so clear and easy to understand that we do not need any court of law to explain it to us ordinary folk. We know what the words mean.

By not administering and applying the law, which in this case is the supreme law, of the land as it stands the errant judges have brought discredit to the judiciary – a ground for their removal from office.

And if the Government of the day failed to listen to the voice of the people then they have placed themselves in jeopardy of losing the next general election or any by-election or any State election in the future.

And finally, what about Ramly JCA the judge who had acted with indecent haste when he granted a stay to Zambry of the well-considered judgment of Abdul Aziz J.

Zambry was appealing against the High Court judge’s declaratory order in favour of Nizar. Like the judges of the Federal Court, he has not given any reason for his decision.

Ramly JCA granted the stay of the declaration which Nizar had obtained against Zambry. The judge was unable to explain why he granted the stay. As any lawyer will tell you it is unusual to stay a declaratory order. If such a stay is to be granted, there are legal arguments to be considered from both sides and the judge will have to say why he prefers the argument of one side as against the other.

The people’s perception of him as an unfair judge is the same as that of the errant judges of the Federal Court. Ramly JCA is in no better position than his seniors in the Federal Court.

N H Chan is a retired judge who last sat in the Court of Appeals.