Regardless of points of law or consideration of justice, a ruling in favour of ousted Perak menteri besar Mohd Nizar Jamaluddin may mean more trouble ahead for the Silver State.
"Should the court rule in favour of Nizar tomorow, it would put the state in a difficult position," said renowned constitutional law expert Abdul Aziz Bari.
He
was commenting on the impending judgement of the controversial Nizar (left in photo) versus current Perak MB Zambry Abdul Kadir (right in photo) case.The UIA law professor explained that in the past year or so, Zambry had made a lot of decisions in his 'rule' over Perak.
"A ruling in favour of Nizar would render those decisions illegal," he stressed.
This situation will surely wreak havoc with the Perak government, especially in its currently fragile state. As it is, the state is already purportedly suffering a loss of investor confidence.
A decision for Nizar may unravel all the administrative decisions of the past year or so, including the recently passed budget.
Abdul Aziz also refuted suggestions from certain quarters that the courts make a prospective ruling to avoid that difficulty.
'Prospective decision improbable'
In most cases, the law would apply retroactively, meaning that the decision decided on today will also be applied to past events in relation to the case.
There are arguments that in the Perak situation the law should only apply prospectively, that is, only to events transpiring after the date of the judgement.
However in this case, the new MB will of course need to put his own policies in place and remove those of his predecessor. Zambry did the same when he came to power.
"I personally just do not see how that (a prospective ruling) can be done," he added.
'Wife with uncertain husbands'
The root of this problem, Abdul Aziz contends, were the gross judicial errors committed by the Court of Appeal in the first place.
"It was wrong for the Court of Appeal to suspend the High Court ruling which held that Nizar was the rightful MB last year.
"The judges in the appellate court should instead have made a ruling; either confirming or reversing the high court's earlier decision," he said.
Abdul Aziz (right) likened what the Court of Appeal did was like allowing a man (Zambry) whose status as a husband was still unclear to live with a woman (Perak) whose marriage to another man (Nizar) was still undecided.
The decision to simply suspend the earlier ruling affirming Nizar as MB, he believes, is like allowing the man (Zambry) to cohabit with the said woman (Perak) until it eventually led to the birth of children.
The 'children' in this case being the decisions Zambry has made since.
"But then one should not be too surprised with the clumsy manner the judges handled the Perak case. This was not the first time the judiciary has erred," he added.
Doubtful decisions
Abdul Aziz gave the example of how a magistrate granted an injunction (to the police) to prohibit citizens from exercising their constitutional right to assemble peacefully as granted under article 10(1) of the federal constitution.
"Under this (constitutional) provision only parliament has the power to deny that right," he exclaimed.
He also pointed to another case in which the Federal Court in 2005 ruled that the prohibition on gender discrimination under the constitution did not apply to MAS as it was a private company.
This, Abdul Aziz said, obviously ran counter to the principle of constitutional supremacy contained by the constitution.
He also gave an example when a court decision could throw a state into turmoil. In 1966, the first Sarawak Chief Minister, Stephen Kalong Ningkan, was ousted when the state governor showed him a letter of no confidence issued by 21 out of 42 legislators and asked Ningkan to resign as chief minister.
Ningkan refused, saying the letters were not the equivalent to a vote of no confidence in the state legislative assembly. He was sacked by the governor but eventually reinstated by the Borneo High Court, which saw the necessity of a formal vote of no confidence.
Abdul Aziz said the court was right in its decision, but it catapulted the state into chaos, when the federal government, upset and embarrassed, declared a state of emergency and suspended the state constitution.
The Perak hullabaloo
The hullabaloo surrounding the Perak case, both in the past and impending future, he said, underlined the point that taking political problems to court, was not the answer. "Especially when judges fail to act swiftly and correctly," he concluded.
Abdul Aziz's view is echoed by others. Indeed there are many who feel that the right to determine the government of Perak should have been returned to the people.
news courtesy of Malaysiakini
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