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From constitutional monarchy to constitutional anarchy

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On 22 May at 3.30pm, the three judges of the Court of Appeal came to a decision that would have far-reaching implications, writes Mohamed Hanipa Maidin.


It is 2.30 am in January 2010. Najib and Rosmah have just reached their official residence in Putrajaya. Their arrival is met with a letter by the King declaring that Najib has to vacate the residence simply because the King has appointed a new Prime Minister replacing him.

The letter sets out this reason namely that Members of Parliament from Pakatan Rakyat (PR) together with a few MPs from Barisan Nasional (BN) have expressed their undivided support for Anwar Ibrahim to become the new Prime Minister. The letter ends with the following ultimatum: Mr Najib you are hereby ordered to tender your resignation failing which your premiership will be terminated forthwith.   

The bewildered Najib immediately seeks an audience with the King. The audience is duly granted. Najib expresses his dissatisfaction. He laments that it is unfair for him to be swiftly removed as Prime Minister in the absence of a motion of no confidence against him in Parliament. He confidently cites Article 44 (4) of the Federal Constitution and in turn contends that nowhere in the said Article does it empower the King to remove him as Prime Minister.

The King smiles and softly reminds him with this timely advice:

“Mr Najib, don’t you remember that on 22 May 2009 at 3.30pm in the case of Dato Zambry v Dato Nizar, the three judges of the Court of Appeal unanimously held that

•    A Chief Minister (at state level) or a Prime Minister (at the federal level) can be dismissed if the King unilaterally decides that the CM or PM respectively has lost the confidence of a majority of the state assembly members or MPs.
•    Article 16(6) of the Perak Constitution, which is equivalent to Article 43(4) of the Federal Constitution, makes no reference to the mode of determining whether the CM or PM has lost the confidence of the members. Be that as it may, constitutionally speaking, there is no explicit requirement for a vote of no confidence to be passed before the CM or PM can be removed from his office.
•    The case of Stephen Kalong Ningkan (1966) is no longer a good law.  In Ningkan, the Sarawak High Court laid down the universally accepted constitutional convention namely the Governor or the King has no power to dismiss the CM unless a motion of no confidence has been passed by a state legislature.

To add salt to the injury, the King may add:

“Was it not you who badly wanted such a perverse ruling in order to gain a short-term political victory?  Was it not you who failed to hear the public outcry demanding the dissolution of the Perak State Assembly in order to solve the constitutional impasse in Perak? Was it not you who refused to solve the Perak crisis via democratic means namely by going back to the voters to decide which party they want to represent them in governing Perak. Sorry, Mr Najib, the problem you are facing now is of your own making. You are to blame yourself. You are hereby ordered to vacate your residence with immediate effect.”

The above scenario is, in my view, an appropriate illustration to depict the brunt of the Court of Appeal’s decision, overturning the landmark decision of the learned High Court Judge Dato’ Abdul Aziz Abdul Rahim on 11 May 2009.

Legitimacy lost

When Dato Abdul Aziz made a decision allowing all the prayers sought by Nizar in his judicial review application, the learned High Court judge, to his credit, gave a reasoned judgment. Therein, he discussed in great detail all the points canvassed by all parties in their respective submissions. Armed with such a reasoned decision, the people are not kept in the dark as to the reasons why Nizar won the suit.

On the other hand, when the Court of Appeal allowed Zambry’s appeal, only cursory grounds were given. Despite a very profound submission made by the respective parties and given the fact that the appeal dealt with very crucial constitutional points, the unholy haste in making the ruling makes one wonder whether the judges really read or appreciated the arguments put forward by the respective parties.  

We, the lawyers in Nizar’s legal team, have no other choice but to accept the court’s decision. But frankly speaking, we wonder if the people on the street also share the same sentiment – accepting and respecting the court’s decision without any trepidation.  

Whilst the people’s tantrums on our dented judiciary continue unabated, the latest perverse decision of the Court of Appeal aggravates the state of affairs. This is what happens when our machinery of justice has lost its legitimacy.

When the BN overstays in the political arena, the people start questioning its legitimacy to rule the country. Unfortunately, government agencies in particular those involved in the administration of justice such as the judiciary, the police force and the Attorney General’s office have also been duly affected when the BN lost its legitimacy to rule. In other words these agencies unnecessarily carry the BN’s burden of legitimacy.

The Perak’s legal and political turmoil reinforces what Raja Azlan J. (as he then was) said in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd ( 1979 ) 1 MLJ 135:-

“Every legal power must have legal limits;otherwise there is dictatorship .. Power tends to corrupt and absolute power corrupts absolutely.”

Since day one, the BN has indulged in unlawful activities as far as the Perak crisis is concerned. To cover its unlawful acts, it has to resort to other unlawful measures. The best way to illustrate what BN has done in Perak is by citing the following example:

When A being a Muslim commits a sinful act by drinking liquor , the intoxication leads him to commit adultery, which is another sinful act. In order to hide his treacherous act, he subsequently kills the woman he cohabited with, fearing that the latter may become a threat to him.

The same happened to the BN in Perak. Intoxicated with power, the BN committed a series of unlawful acts, the glaring one being the “sodomising” of the Perak constitution. Using (read abusing) the court to hide its unlawful acts, the former was then asked to kill the constitutional doctrines and conventions. The court willingly submitted to the BN’s nefarious scheme. Thus for the first time, the apex court demolished the doctrine of trias politica (the French term of separation of powers) when it, without any sense of guilt, nullified the decision of another branch of the government’s arms i.e the legislative body.

The doctrine of separation of powers recognises that the Speaker of the legislative body is the final arbiter as far as the internal affairs of the State Legislative Assembly are concerned.  There are at least five judgments of the Malaysian courts, given by judges of impeccable integrity, which in unison held that any decision by the Speaker or legislative body would not be amenable to judicial intervention. Legally speaking, the decision of the Speaker is unjusticiable.

But to keep such a well entrenched doctrine would definitely frustrate the BN’s illegal plan to remain in power in Perak illegally. Thus, the doctrine needed to be buried once and for all.

Being a “serial constitutional killer”, the BN craves to “kill” another constitutional tenet enshrined in our constitution, namely the doctrine of constitutional monarchy. Again, the BN was able to accomplish its malicious design.

Hence on 22 May at 3.30pm, the three judges of the Court of Appeal officially pronounced and declared the demise of constitutional monarchy in Malaysia. When constitutional monarchy ends, constitutional anarchy definitely begins. Welcome anarchy!

Mohamed Hanipa Maidin is the Pas legal adviser

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