Perak Court of Public Opinion

Amid the constitutional crises involving differing legal opinions, interpretations and implications of: the powers of the Sultan, his dismissal and appointment of a Menteri Besar (or Chief Minister), his dismissal and appointments of Exco members; the legality of the newly appointed Menteri Besar while the former Menteri Besar is still claiming he is the rightful one; the power of the Speaker of the State Assembly to suspend the Menteri Besar (whose appointment is the subject of a pending court case)and his appointed Exco members, we now have the opportunity of a retired Court of Appeal Judge expressing his opinions over the matter, which incidentally involved a former Lord President who is the present Sultan.

The following are extracts from a blog being forwarded:

NH Chan is a former Court of Appeal judge, respected for his prudence and professionalism. He belongs to the old generation of Malaysian judges that commanded the glory of the region and the world, until the dark ages befell it in 1988 with the intervention by the executive under Dr. M.

In his retirement, witnessing the Perak state crisis unfolding at his home state, NH Chan wrote an exemplary commentary in Malaysiakini today. Most of us already know the right and the wrong of the crisis. In fact the title of Chan’s article, “Sultan has no powers to ask Nizar to quit”, will not attract most readers to read it at this juncture. We are already overloaded with many pieces from various subject experts.

However, what’s outstanding from Chan’s article is that it reads like a respectable judgement coming out of a reputable court of law. The process in which the various judgements are made is methodological and fair. In short, his judgements are convincing and sound.

Extract of his judgement:

Bernama later reported that Mohd Nizar was summoned to an audience to be informed of the sultan’s decision not to dissolve the state government.

Now what is wrong with that?

It is wrong because the sultan saw Najib without Mohd Nizar being present. Let me explain why it is improper for him to do that.

A fatal error

As a former Lord President, who was then the highest judge in the country, the sultan should know that it is improper to see an interested party alone without the other side being present before announcing his decision..

It was only after the ruler had seen Najib that he summoned Nizar to inform him that he had decided not to dissolve the legislative assembly.

That was his undoing. It was a fatal error. This is not a case of natural justice where both sides have a right to be heard. There was no hearing.
…
The personal discretion to grant or not to grant must be exercised without any suggestion or suspicion to any reasonable outsider that he was partial to one political party or coalition of parties.

In other words, it is about the appearance of impartiality - justice should not only be done, but should be seen to be done.
And in the present context, what is the right thing to do?

Every judge, unless he is a bad judge, knows that the right thing to do is to apply the oft-repeated saying of Lord Chief Justice Hewart in R v. Sussex Justices, ex parte McCarthy: “It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

As Lord Denning would have put it in Metropolitan Properties Co (FGC) Ltd v. Lannon [I9691 1 Q.B. 577: “The court will not inquire whether he did in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.”

Chan ended the article with:

The laws of the Perak constitution should be administered even-handedly and not unequally by giving the impression to the general public that preferential treatment was shown to some persons.

It is the appearance of impartiality that matters. It does not matter whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think that he did.
…
The executive branch of any government, be it federal, state or local, cannot ignore the people’s call for justice and fair play which throughout the ages have been “found necessary to promote the public weal, and to satisfy the demands of public opinion”.

The call of public opinion is a call to maintain “the rights and freedoms of the individual against the all-powerful bodies that stride about the place”. The executive branch of any government can ignore the voice of public opinion at its peril.

Meanwhile, another respected Perakian, Koon Yew Yin, expressed his opinion in his letter to Malaysiakini (extracts):

Many ordinary people are also questioning the wisdom of the Sultan of Perak, the former Lord President, in handling the case. Generally, many people are dissatisfied and some even angry with the way in which the government they elected to power in March last year has now been pushed out of office.

This constitutional crisis could have been avoided if all the political players, including the sultan, practised real democracy in resolving the matter in the state legislative assembly and not behind closed doors in the palace.

That is why in any democratic society, the state legislative assembly is open to the public so that the common people can see the constitutional process to be fair and open to scrutiny.

The sultan’s refusal to dissolve the state assembly to allow fresh states election may be within his power but it is generally perceived to be unfair. That is why so many people turned up to demonstrate to air their frustrations.
To add insult to injury, the sultan has refused to meet all the leaders of PAS, PKR and DAP after he ordered BN to form the new state government.

I think the best way forward is for PR leaders is to bite the bullet and wait patiently for the following situations to unfold:

1. BN. is allowed to form the new state government with only one Chinese from MCA and 27 Malays from Umno. Such a government with the three defectors will be very vulnerable because the defectors can change their minds at any time.
2. If the three unreliable independents switch their allegiance to PR, it will mean that the sultan has to request PR to form the state government again.
3. Moreover, if the two independent assembly persons who are being charged for corruption, are found guilty, their seats will be declared vacant, thus ensuring that by-elections will be called.
4. Anyone with a little foresight can foresee who will win in these by-elections. In such an event, the sultan again will have to ask PR to form the new government.
5. Even if the defectors do not switch their allegiance to PR or the corruption charges are dropped, eventually in the next general election PR will definitely win by a larger margin.

My advice is to just wait patiently for the durian to drop and for the political control of Perak to return to the rightful and legitimate political party sooner or later. In the meantime all Pakatan leaders must behave impeccably to gain more support.