Perak: the judge has made the judgement

[ NH Chan's full article - please consider subscribing to Malaysiakini; it's only RM20/month or RM150/year - much lesser than paying for the BN-controlled MSM. ]

NH Chan is 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, withnessing 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’.”

Now we know why the people of Perak and elsewhere in Malaysia, are making harsh statements about the sultan. …

It is the perception of the people that matters; and the confidence of the people is destroyed when they go away thinking that he was biased – that he had been influenced by Najib.

It is very sad that Sultan Azlan Shah, who had been held in high esteem internationally and by the populace, has, in a careless moment, lost all that.

His reputation for fairness and justice has been shattered when they go away thinking that he had been influenced by Najib or that he has favoured BN. It does not matter whether he did, in fact, favour one side unfairly.

Suffice it that reasonable people might think that he did. The die is cast and we cannot put the clock back. Hereafter, there may be many who will no longer believe in his speeches on good governance and the integrity of the judiciary.

The impression is that he does not practise what he preaches.

The full article shows the full methodology and logic on how he derives at his judgement. You should read it in detail if you have access to Malaysiakini. 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.

Unwillingness to heed the demands of public opinion can lose the mandate of the populace in the next election.

I think the writing is already on the wall. The demands of public opinion is a universal one. If the old order has been found wanting, it must give way to the new.

Now, his judgement is very clear: Sultan Azlan Shah of Perak has made a fatal error and as a result lost all the esteem he has commanded all these years.

One can’t help but wonder what ‘magic’ Najib has that causes Sultan Azlan Shah to do what he did – in the process destroying all his esteem. To those who are adamantly shouting ‘Daulat Tuanku’, myself included, they should ask themselves this question: what has Najib done to destroy the good standing of many years of the sultan?

A politician so mired in scandals and controversies (C4, Mongolia, PI Bala), now has even caused such damage to Perak sultan, set to become Prime Minister from April this year, Malaysia is forecast for a stormy weather in the very near future.