Losers On All Sides

Losers On All Sides
M. Bakri Musa

It reflects how low the public’s respect for our judiciary is that a unanimous reversal by the appellate court of a High Court’s decision should be greeted with such widespread scorn.

We must await the Appeal Court’s written judgment so we could weight its wisdom, legal and otherwise, and compare it to that of High Court Judge Aziz Rahim who made the initial ruling in Nizar vs. Zamry. Justice Aziz gave his within a week. Let us hope the Appeal Court judges, being more senior and higher in the judicial pecking order, would do better and come out with theirs faster. After all they have to set the proper example.

At least the Appeal Court had the common sense to have a quorum of three to hear the appeal. It would have been better on a case of such import involving fundamental constitutional issues to be heard with the full quorum. At least those judges showed better judgment if not common sense than Appeal Court Judge Ramli who in his wisdom decided to hear by himself the appeal on the associated stay of execution.

Regardless, this case is headed to its final level of appeal. Let us hope that the Federal Court would hear this case with its full quorum and not just the minimal. While that is not a legal requirement, it is from the perspective of public credulity. At a time when the image of our judiciary is anything but pristine, this would be an opportunity to restore some credibility.

Thus far these are what we have. In favoring the plaintiff, Justice Aziz Rahim effectively declared that the Sultan of Perak Raja Azlan Shah erred in appointing Barisan’s Zamry as the state’s Chief Minister to replace Pakatan’s Nizar. Justice Aziz cited principally the precedent of the 1966 case of Stephen Ningkan vs Abang Openg.

What is unique here is that Raja Azlan Shah is no ordinary sultan, having served as the nation’s highest judge from 1982 to 1985. In this decision, Justice Aziz is in fact telling the former chief justice that the country’s statutes and legal precedents do not support the sultan’s action. More simply and directly stated, the sultan was wrong

This precedent was set during Raja Azlan Shah’s tenure as a judge, long before he ascended to the Perak’s throne. Meaning, he should be fully aware of the precedent and its attendant legal reasoning when he deliberated on Najib Razak’s (as head of Perak’s Barisan) request to have Zamry replace Nizar.

The only possible explanation for Raja Azlan’s ignoring that precedent must be that he felt that it did not apply to him as a Malay sultan. After all how could a sultan be compared to a mere mortal, the governor of a state? In Malay culture, a sultan is God’s representative on earth; his mandate comes directly from heaven. It is not for mere mortals to trifle with it. Sultans have daulat, a special status denied those common-blooded governors! Unfortunately for our sultans, that is not what is provided for in our constitution.

This delusion of having a special mandate from high above is of course an affliction affecting not only our sultans but also all hereditary leaders everywhere, save the most enlightened.

In reversing the decision, the Appeal Court effectively sided with the sultan. The sultan alone could decide whether the Mentri Besar still commanded the confidence of the Assembly. Presumably the sultan had special divine powers to read the minds of the legislators and how they would vote before there was any voting!

In his decision, Justice Aziz Rahim made some uncomplimentary remarks about the role of the State Legal Advisor (SLA). Indeed the role of the permanent establishment as represented by the police and State Secretary, in addition to the SLA, merit an even greater scrutiny as they reflected the degradation of our pubic institutions. I await the Appeal Court’s written judgment to see whether those wise judges will also comment on this equally pertinent issue raised by Justice Aziz.

Had leaders of the permanent establishment been more professional and less partisan in discharging their duties and obligations, they could have acted as buffers and be the restraining force that would have prevented this crisis from escalating. Instead they became part of the problem, and a major one at that, instead of the solution.

As to the SLA’s claim of neutrality, Justice Aziz “will take it with a pinch of salt.” The SLA admitted to being “instructed” from the respondent’s solicitors in wording his affidavit, a term that took Justice Aziz by surprise. One would have thought that being a legal advisor and thus professionally trained, the SLA would act on his own judgment. Alas those are the qualities of our top officials.


Political, Not Legal Problem

All disputes could ultimately be decided by the courts. However whether some should, is another matter. A perfectly rational and easily comprehensible reason could be advanced on whether certain disputes are best resolved outside the court system. This ongoing dispute in Perak is one such case. It is essentially a political dispute, and as such it would have been best resolved in the political arena. No less a veteran politician than Tengku Razaleigh has said this, and I agree with him.

At the other end of the spectrum, Law Professor Shad Saleem Fariqi said it well and correctly. “… [T]his political crisis in Perak is like a “hydra-headed monster that cannot be eliminated so easily by ding-dong judicial decisions.”

Since the case has landed in court, it still could have played a crucial role in resolving it, had the various participants and institutions been more professional and less partisan. Imagine had the court expedited the case and Justice Aziz rendered his decision prior to May 7th, before that disastrous legislative session where the Raja Muda delivered his speech. The nation would then have been spared the ugly spectacle. Now that singular repulsive episode will forever be engraved as part of the Malaysian democratic tradition.

Had the principal players demonstrated a modicum of restraint and (dare I say it?) wisdom, and delayed the session till after the court’ decision, that too would have spared our nation that shameful blemish.

Najib’s appealing the case only added to the volatility and uncertainty; it is a major distraction and at a time when the nation can least afford it. Even if Barisan were to ultimately prevail, the price – political and otherwise – will be severe. More significantly, it will set yet another precedent on the enhanced powers for our sultans. After the humiliation then-Prime Minister Abdullah Badawi suffered at the hands of the Sultan of Trengganu not too long ago, a reversal of Justice Aziz’s decision will legitimize and cement the sultans’ enhanced powers.

On the other hand, if Barisan were to lose, this judgment would further strengthen the earlier precedent. At the most elemental level, it would establish once and for all that the powers of the sultan within a state are no different than that enjoyed by a governor.

While I would welcome such a development, those who cling to the idea of Ketuanan Melayu or that Malay sultans have a “special” if undefined role in the nation, must pause and ponder the vast implications of such a development. I doubt very much that Najib Razak in his hasty pursuit of immediate short-term gains has reflected on this critical point.

This case has thus far only created losers on all sides. It already exposed the sorry ineffectiveness of our institutions, in particular the permanent establishment. It has revealed the inadequacies of the monarchy in ensuring a smooth transfer of power. It rekindled the sorry memory of the constitutional mess we went through in the 1980s. Most of all the pitiful losers are the people of Perak. Their leaders, from the elected ones in the Assembly, to the hereditary ones in the palace, and the professionals in the permanent establishment, have all failed the people of Perak.

To be reminded that these leaders are paid for by the citizens’ hard-earned cash would merely add the proverbial salt to the still-raw wound, one that has yet to stop bleeding much less begin to heal.

This case awaits its final adjudication at the highest level. When it started the first judge, Judicial Commissioner Mohammad Ariff Yusof, recused himself as he was formerly associated with PAS, Nizar’s party. Now on its final stage, the sitting Chief Justice is Zaki Azmi, up until a few years ago a legal advisor to UMNO, a party in this dispute. Will Justice Zaki heed the example of Judicial Commissioner Ariff? It is on such simple and elemental matters that the credibility of our judicial system hangs.