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Wednesday, May 13, 2009

What are you staying? part 2

A commenter on a web site where my article "What are you saying?" appeared alerted readers that there is a judicial precedent on whether a declaration can be stayed. I did check the case he was referring to. I wish to thank him or her. He or she is right.

This is what the Judge said in that case:

"At the hearing of the motion, I asked (Counsel) who appeared for Mr (F) how it was possible to stay a declaration that had been made and duly entered.....

(Counsel)  relied upon the difference between the language in Order (xx) rule (xx) ("The Court may stay execution of a judgment or order".) and the language of s. (xx) which simply refers to staying an order.

The distinction sought to be made was that the rule refers to execution while the section does not. There does not appear to be any relevant difference in the present context between a judgment and an order.

The New Shorter Oxford English Dictionary relevantly defines "stay" as "suspension or postponement of a judicial proceeding, sentence or judgement". The Macquarie Dictionary speaks in terms of "to suspend or delay (proceedings, etc)". The same two dictionaries define the verb "to suspend" as including "to make temporarily inactive" and "to cease from operation for a time". In that sense it might be said that an order which had already taken effect could be suspended temporarily. However, once a declaration has been made, as here, that a deed is void it seems to me that the order itself has done its work. The legal rights or obligations of the parties which depended upon whether the deed had any effect or not are, subject to appeal, settled. In the absence of clerical or similar errors arising from a slip or accidental omission the order stands unless set aside on appeal.

I decline to make that order on the basis that, in my opinion, the power to do so does not exist."

(please note that words in brackets are mine and all emphasis are added by me).

So, there we go. I am right. Thanks to the commenter. I suppose Nizar's lawyers and Counsel know what to do.

26 comments:

berea said...

Now we know the kind of judges we have at the Court of Appeal!!!!

Anonymous said...

Dear Readers,

I hope the particular COA judge will be humble enough to retract/ cancel the stay that he has mistakenly given. To err is human, to remedy is noble.
Cheers
Raja chulan

donplaypuks® said...

Bro

What is this African case Shafee is spewing all over the deck about. He says this is a precedent that a vote of no confidence or that the MB has ceased to command the respect of the majority NEED NOT BE TAKEN ON THE FLOOR OF THE HOUSE.

I mean, did they have a Sultan in this African nation to complicate matters? What's your take?

http://donplaypuks.blogspot.com

art harun said...

Don,

That is Adegbenro v Akintola, a Privy Council decisions from Nigeria. The provision there are different. Our Consti (Federal as well as Perak's)say the MB must hv the "confidence" of the majority. There, the provision says the Premier must have "support" of majority. Furthermore, their provision gives discretion to the Governor to determine the "support". If I am not mistaken it says "if it appears to the Governor that...". That phrase gives some right to the Governor to use his subjective mental judgement on the matter. That phrase is absent in our Consti.
Those are the distinguishing factors.

elizabeth said...

Muthu cannot do anything about it, becuz Meenachi comes from a family with connections.... with not just big shots, even the jaga at the ladies toilet is her clan....

Hamba said...

with UMNO high ranking members as CJ, what do we expect? As usual anything that can be twisted is twisted, anything that needs omission is omitted. Now we have weird interpretation and skewed translation of a simple law. A haram animal now can be made halal. Does UMNO now say that pig is now halal for muslim, just because it had found another way of interpreting the prophets words? Looks like it, with UMNO nothing is impossible. UMNO Boleh ! and Zambry lagi boleh ...be anybody! Mandela..Ghandi anybody? Why not Condoleeza Rice...at least they both lie with a straight face... George Bush is too pale for Zambry..

Frank said...

I am sorry, I still don't understand from the case referred.

Somebody help to translate to a stupid person like me, please.

What is the relevance to the Nizar vs Zambry case?

Please help.

Anonymous said...

I guess the hurried manner the request 'order' was asked has made the judge erred.

Now let's see the outcome when nizar's counsel bring this up.

Nanda said...

Sir, on the question by donplaypuks and your answer, would like to ask some clarifications.

Our constitution as well as Perak constitution, as you pointed out, say MB 'must have the confidence of majority. But it doesn't specify that the method to determine the confidence of the majority is solely a vote of confidence/no confidence.

Contrasting Adegbenro v Akintola with Perak situation, your explanation was in terms of discretion provided to the Governor or The Regent in our case to use his/her subjective mental judgement to determine support. But it doesn't address methods by which the state assembly members make known their confidence/non-confidence i.e parties expressing their support/non-support by communicating with the palace without actually bringing it to the assembly.

There's no limitations in terms of how the Sultan determines that the MB still has the support of the majority provided it is not solely based on his mental judgement without being substantiated with any other telling proof. The direct communication with palace without going through the assembly is one such case, I think.

In such situation (as what they are now claiming had occurred in Perak), wouldn't it still be constitutional for the Regent to arrive at the conclusion that the MB no longer commands the support of the majority? Would like to hear your thoughts sir.

Thanks.

Anonymous said...

Nanda,

Perhaps you can get some idea/the answer if you refer to Mr Art posting in February 6.

Dear Art, i do hope you dont mind my offer in helping Nanda.

sowhatsup said...

Dear Art,

If possible can you give us the link or the case name and citation so that I can read it...

THanks,

Voice of the Oppressed, Suppressed said...

Nanda,
All you need to do is to read the High Court judgement. It's all there, plain and simple.

Anonymous said...

Just like how they can get an Imam to witness Saiful's swearing, they can get a CoA judge to hear Zambry bin Mandela Gandhi's appeal.

MALAYSIA BOLEH!

Caretaker_y said...

It is now even clearer that certain so-called Rice-bowl judges are at the beck & call of the UMNOBN plunderers.
Even the so-called AG(no backbone & a parasite of the UMNOBN goons) puts his dirty fingers & toes into the Nizar verses Zombie's (ZvN)appeal. Just like previously, the suspension of the illegal MB(Zombie) & the resignation letters of the 3 corrupted frogs cases.
He is just trying to throw his bloody weight around the Judges & influencing & undermining decisions to be made fairly & with integrity by the Bench.
It is high time he is knock off by some form of ailment or paralysis OR else the Judiciary will be a laughing stock throughout Malaysia & the whole wide World, which is already happening.
God protect the innocent & honest politicians & Rakyats. Remove the evil doers, the gilakuasa, the plunderers, the murderers, the corrupted & all of the cheats of all kinds.

peng said...

Excellent! And I thank you for enlightening us on the judiciary.
Like you say, it's now up to Nizar's lawyers to do the necessary.And we hope it's as simple as that (considering the inclinations of some judges..!).

Nanda said...

Anonymous at 18:33,

Thanks for pointing that out. I've read that piece when it was published on 6th February and revisited it today and I believe the relevant part taken from the Stephen Kalong Ningkan case that you may be referring to is 'Factually establishing no confidence is via a motion of no confidence and not via letter etc' I understood that part as detailed by Art in that piece.

Today I read Malik Imtiaz's post and there was a comment, which to a lay person like me, sounded valid. And while waiting for Malik's explanation, I was hoping to learn and understand from anyone who might know about it.

Just an attempt to seek some knowledge.

I reproduce the comment and the link to the post(s) below:

http://malikimtiaz.blogspot.com/2009/05/texture-of-justice.html

http://malikimtiaz.blogspot.com/2008/09/navigating-constitutional-impasse.html

----------------------------
Anonymous said...
1. Secondly, a Prime Minister who no longer commands the confidence of the majority has two options. He can ask the YDPA to dissolve parliament and use that to call for fresh elections. The YDPA however has an absolute discretion to withhold consent and as such, could legitimately refuse. This would leave the Prime Minister with no option other than to tender his resignation and that of his Cabinet and pave the way to the appointment of a new Prime Minister, one who in the judgment of the YDPA commands the confidence of the majority.

Thirdly, the Federal Constitution does not say how to establish that the Prime Minister has “ceased to command the confidence of the majority”. A vote of no confidence is an obvious method but not necessarily the only one. To read the constitutional provision otherwise would not only be unwarranted (an unnecessary implication of meaning) but would also allow for unconstitutional action, such as the use of the provision to impede the expression of the majority of the Dewan Rakyat.

2.it is open to the YDPA to form a view through other means, such as direct meetings with the majority of the Dewan Rakyat, so as to satisfy himself that the incumbent Prime Minister has in fact ceased to command its confidence. Events in Perlis and Trengganu earlier this year are illustrative of this course

My comments:
In relation to your reply to anon 4.57 whom i agree was rather uncouth, i have excerpted the above portions of your article in September 2008 ( which by the way dovetails with another by Tommy Thomas in the Sun to which Zainur Zakaria had penned a rebuttal)for your kind review and comments.I will divide my queries for ease of discussion:

a. Given that you have firmly averred that the Prime Minister has to tender his resignation if dissolution is not granted isnt it strange that Nizar refused to do so despite his assertion that he was requesting for dissolution under another article of the Perak Constitution, his approaching the Sultan suggests otherwise as do press reports of the said period also indicate.
Q: How do you square your apparently incompatible position vis-a-vis September 2008 and this circumstance?

b.In 2 you further opine that the YDPA has access to other means by which he can establish confidence. If you care to read the full judgement of Harley CJ in Stephen Kalong Ningkan, there were several discrepancies in the petitions 9 the other means) that prevented Harley CJ from using them to validate the dismissal of Ningkan.In other words, Harley was constrained by his own doubts to rely on the said documents to validate Ningkan's dismissal. So he selected the safe option by returning the issue for determination by the assembly.In fact these reservations were clearly impled in the judgement something which was also touched upon by the judge in Amir Kahar's (1994) suit.

Secondly your take as in (1) above is not out of sync with that of the Privy Council in overturning the (Adegbenro v. Akintola [1963] 3 WLR 63 verdict wherein it was noted in Harley's judgement that:

"The Privy Council took an opposite view and held that there was no limitation as to the material by which lack of confidence should be assessed."

and which Harley CJ himself affirmed:

........it appears to their Lordships somewhat unreal to try to draw a firm dividing line between votes and other demonstrations where the issue of 'support' is concerned."

Care to explain how HRH Azlan Shah's meetings with the relevant parties as photographed and published in press reports were not similar to the "direct meetings" you propunded in (2) above.

Appendix:The main deduction that can be infereed from Stephen was that the failure to appeal that decision has ironically landed us in a legal cul-de-sac where the only valid way to assess confidence has been left immutably cast in stone so to speak. In fact, latitude should be given in interpretation of constitutional law for it to progress and for it to function as a living organism 9 not a parchment) as what the eminent Indian jurist Nano Palkhivala once observed:

"The Constitution is not a structure of fossils like a coral reef. It is a living organism and should be construed as such. Constitutional fundamentalism is far more reprehensible than religious fundamentalism."

and further to propel such progress, the role of the relevant personages should not be hamstrung by legalese as in:

"The President is not a mere robot or figurehead. As a general rule and in normal times, he is no doubt bound to act in accordance with the advice of the Council of Ministers. But this rule is not so inviolable and inflexible as to oblige him to observe it even when the result would be subverting the clear mandate of the Constitution.The President is the Head of the State and has to make his decision with perspicacity and in a totally non-partisan spirit when a crisis broods over the nation. A crisis IS implicit in the advice to dissolve the Lok sabha within a year of its formation- it is virtually and admission of the failure of the democratic process"

source: http://www.cili.in/article/view/1672/1286,

For further food of thought, study the comments excerpted below with regard to the need for latitude and flexibility:

i. "No one has suggested in the course of argument that the Governor exercising a power of selection is under any legal restriction as to the persons he may consult or the material to which he may turn in aid of his decision." [1963] AC at 632.

ii."the judgment as to the support enjoyed by a Premier is left to the Governor's own assessment and there is no limitation as to the material on which he is to base his judgment or to the contacts to which he may resort for the purpose. There would have been no difficulty at all in so limiting him if it had been intended to do so." [1963] AC at 629.

iii......... So if the words are capable of more than one meaning it is a perfectly legitimate intermediate step in construction to choose between potential meanings by various tests
(statutory, objective, anomaly, etc.) which throw light on what the draftsman meant to say." (Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231, 236, HL)

And regarding the ossification of constitutional processes, these two comments would be illuminating for starters:

iv."To such an organic statute (the British North America Act 1867, the Canadian Constitution) the flexible interpretation must be given which changing circumstances require...." Attorney General for Ontario v Attorney General for Canada [1947] AC 127, 154, PC.

v."The words used (in a Constitution) are necessarily general and their full import and true meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning." James v Commonwealth (1936) 55 CLR 1, 43, PC.

Although a simple fisherman, I would be grateful if you would deign to address the issues and contest my asssertion that today's verdict is a retrogressive step especially after Amir Kahar(1994) had heralded a more progressive and expansive interpretation of the relevant provisions.

Thank you.

P/S: by the way, congratulations on your award......

Peter the Fisherman

May 12, 2009 11:22:00 PM MYT

----------------------------


Best regards,

Nanda

Anonymous said...

If this Shafee wants to practice African Law, let's encourage him to migrate to Africa.....I suspect that he is referring to Zimbabwe!!

Cite Checker said...

Thank you for taking the level of dicussion to a rational and open manner.

However, if we are talking about legal issues and precedent, it would be imperative that a proper cite be given for the case mentioned.

Why the secrecy with respect to the case you are dependant on for your argument against the stay?

Anonymous said...

The only way to settle this man/woman issue once and for all is for the CoA judge himself to spend a night in bed with Muthu.

art harun said...

Dear Cite Checker,

Under normal circumstances, I agree with you. But the situation is not normal and I do not want to let the cat out of the bag just yet. I hope you know what I mean.

cheers.

art harun said...

Nanda,

An interesting point you have brought up there.

I read the remarks that you had kindly reproduced here. I must say that the writers have done an in depth study into the issue.

However I am surprised that non of them has touched on the very basic of Constitutional Law. Sometime we are too focused on the tiny little things so much so that we miss the very basic.

You see, Constitutional doctrines and the laws are not only contained in the written provisions of the Constitution (if the Constitution is a written one). There is such a thing called Constitutional Conventions. Loosely, conventions mean past practices. These are not part of the written Constitution. However, if the practices or conventions have become so widely accepted, these conventions then become entrenched into the Constitution and become part of it.

I give you one example. There is no written provision as to how the Agong or Sultan should form an opinion as to who "commands the confidence of the majority of the House". But that surely does not mean the Agong or Sultan can willy nilly do anything he likes to determine such thing. Otherwise, we would have a King who would conduct a TV reality show just to find out who commands the confidence of the House. Would that be acceptable?

In that case, convention kicks in. The power of the King or Sultan may appear absolute. But it is not. It is governed by conventions. And what is the convention here? The convention is the Prtesident of the party whivh wins the election would meet the Agong and inform him that his party has won a majority. With that the Agong appoints the President of the winning party as PM. The Agong don’t interview every member of the party or every MP from that party. Why? Because that is not the convention.

I therefore disagree with the writer of the remarks you reproduced when he says the power of the Agong to withhold consent to dissolve is absolute. There is no such thing. When the PM (or in the case of a state, the MB) requests a dissolution, the Agong, or as the case may be, the Sultan, does not have absolute power to reject or accept that request. Although it appears that he has absolute power, the reality is he doesn’t. The whole concept of Constitutional monarch is based on giving the real power to the people, and not to the King.

Constitutional experts such as De Smith says that it would be “revolutionary” if the Queen refused dissolution upon being requested so. He suggests that perhaps, if the Queen forms an opinion that a dissolution of Parliament may cause a civil war, then dissolution could be denied. It takes that kind of situation. Grave circumstances. It is not at the whims and fancies of the King or Sultan to refuse dissolution.

So conventions dictate that dissolution is never ever refused when requested for unless there are really exceptional circumstances.

Our recent history has shown that when convention is not followed, problems will arise. Just look at Trengganu and Perlis when the Sultan and Raja respectively, with all due respect, departed from convention in the appointment of the MB. Chaotic! I had warned of a day when a Sultan might want to change an MB in the middle of a term on Imtiaz’s blog. And that is what has exactly happened!

art harun said...

Nanda,

Sorry, I missed out one point. About vote of no confidence.

Just to reinforce my point of convention. Where does this creature called "vote of no confidence" come from? It is not written anywhere in the Consti, is it? You can't find it. So where does it come from?

Yes. It comes from convention. And it comes in many forms. There don't have to be a specific vote saying I have lost confidence in the government. But one thing is certain, a vote in the House is needed.

In the UK, it is accepted as convention that if the Government's budget is rejected by Parliament, that amounts to a vote of no confidence and the Government must therefore vacate. An important bill of supply, if defeated, would have the same effect.

That is the accepted convention. It is a part of our Constitutional doctrine and law. 3 frogs jumping ship and meeting the Sultan with the PM behind the back of the incumbent MB (who had earlier requested dissolution in accordance with his constitutional rights) is not the convention.

An attempt to create convention, maybe, but convention it is not.

Shamsul Yunos said...

Do tell us then whether it is OK for a body to ignore a declaration or two

Al Tugauw said...

Looks like the majority of persons in the Malaysian civil service, judiciary and police are still intent on towing the line of the executive which itself is still intent on perpetuating misgovernance, abuse of power, waste and manifold corruption.

This of course is subversion if it goes against the will of the majority of the electorate and the population in general who are represented by that electorate and those elected.

In democratic countries it is up to the electorate to decide, but even democracy and all its institutions can be manipulated to give a semblance of legitimacy to illegal acts on the part of the minority "entrusted" with power by the "majority".

The fallacy of democracy is that it decides who is right and who is wrong and that further it conveys upon those elected the "right" to do as they please.

It does not. Democracy merely decides who wins and who loses, rightly or wrongly.

Ultimately, the crisis in Perak can only be resolved by going back to the electorate, who will decide, rightly or wrongly, who wins or who loses.

In this regard, the opinion of the Perak electorate will certainly count for more than that of a few partisan judges.

What can we say of judges who allow their conduct of cases before them to bring disrepute and dishonour to the judiciary merely to appease and uphold a rampantly corrupt executive?

Is this the Malaysian way that we want to see being perpetuated?

It's time to say "Tak boleh!"

Nanda said...

Dear sir,

Thank you for your clarifications. I was of the thought (still am) that though the convention exists, it is not enforcable by a court of law, simply because it is a convention and not law.

But I guess referring back to Stephen Kalong Ningkan where precedent had been set, it may now follow the Common Law principles but what bothered me is the point b) raised by the commentator. I'll go read the full judgement first before attempting to comment further.

I do recall your differing opinion during the Trengganu issue and I can appreciate the angle you are coming from that conventions though it is not law, cannot be abandoned for the whims and fancy of a party.

Again, thanks for your kind explanations sir.

Best regards,

Nanda

Phaiji said...

Dear Art
both your pieces on the stay were superb. Clear, precise, to the point. It is submissions such as this that win the day. I have noted alot of comments about the alleged political bias of the CoA Judge. I think we need not go that far. In my my experiance (limited as it is) as the Bar i have realised that the fault in our Judiciary lies in the mettle placed there. Could it be that the Judge was simply "unlearned" or did not have the benefit of clear, concise, to the point (and perhaps totally sincere) submission such as yours. There so much time and effort spent in critising the CoA Judge with allegations of political bias no one has found time to commend the HC Judge who decided the matter intelligently on merits. The Judge on being congratulated for the decision responded that he was merely doing his duty and acting in accordance with binding precedent. Lets take a moment to appreciate that. Fatima