We are pleased to share with CPI readers the full text by Judge N. H. Chan of his legal commentary on the constitutional tussle.  We thank him for sharing it with us and our readers.

Dr. Lim Teck Ghee, Centre of Policy Initiatives

Full text by Judge N.H. Chan

Comments
  1. Ellese says:

    Sang kancil is an imbecile

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  2. Sang Kancil says:

    Gopal R Kumar is an imbecile.

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  3. Gopal Raj Kumar says:

    There is perhaps no response yet to this man’s interpretation of the Sultan’s exercise of his Royal Discretion in the so called Perak crisis because the former judge NH Chan’s attack on the Sultan is embarassing, provocative, ignorant and it fails to properly identify legal issues at the core of his argument.

    Further and in many respects it is an exhibition of the man’s own incompetence as a man of the law. Hopefully the incompetence crept in after he stepped down from the bench and not during his tenure as a judicial officer in Malaysia.

    NH Chan’s analysis is flawed from the start for a number of reasons and I will attempt to go through each of these in turn. Forgive me if I do not complete my responses in great detail or if there are errors in the construction of my sentences or the structure of this document as I am only able to comment on these issues during my brief breaks from my normal duties. This to me is an indulgence.

    Chan’s claim that the Mentri besar can only dissolve the legislative (state) assembly where he does not “command the confidence of the majority of its members” is fundamentally wrong and is demonstrative of a narrow mindset which he extends throughout his feeble argument in this matter.

    The Mentri Besar can seek a dissolution of the house (legislature) where he also decides to go to the people in early elections before his government’s term in office is at an end.

    It may not be common practice, but the provisions for the early dissoloution of a parliament is universal and is often used by govenment’s seeking to increase their majority when the going is good.

    Alternatively where they are unablee to resolve an issue (such as the passing of money bills) where an uncopperative opposition blocks it. (Australia Whitlam Government dismissal 1970) government’s also use the dissolution mechanism to take the contention to the people in a new referendum or vote.

    Perhaps Chan is selectively using the constitution as a document cast in stone where people like him are unable to advance a proper contrarian acadmic or intellectual argument on the basis of substance.

    Where Chan’s argument and all of his fire power turns into that proverbial “damp squib” is when he goes on further and verbatim to quote to his detriment the key phrase from the relevant article of the constitution “May act in his discretion…………”.

    Now the Sultan like the Agong has reserve powers which they exercise as Discretions which are given to them to exercise as discretionary powers. These are not in the imperative nor are they compelled to act in one way or the other. They are discretionary. The operative word in that provision NH Chan quotes from is Discretion.

    Chan like many populists within the legal profession in Malaysia fail to distinguish betwee a prerogative power, like the discretion available to the Sultan to exercise, and an imperative which imposes upon a party whether that be the Sultan or NH Chan or you or I which compells us to perform in a certain way without the benefit of any discretion.

    He therefore bases his arguments on a conceptually flawed argument by attempting to make the discretion into something thats compelling or something which imposes a legal obligation on the Sultan that has to concur with Chan’s argument.

    And for that, the “peanut gallery” of loud hissing opposition condemns the Sultan disrespectfully and attempts to villify him by accusing him of acting unfairly. That of itself is treason. Of his own material Chan condemns himself to the guilt of that offence of treason.

    He has villified the Sultan, his office and brought it into disrepute. He has also in the process in other commentary attributed to him (which he has failed to properly disassociate himself from), defamed the Sultan brought the office of the judiciary in Malaysia into disrepute and properly must be said to have brought parliament in Perak into disrepute as well in the process.

    He goes on to quote copiously verbatim from the constitutional provisions relating to the state of Perak which he believes are relvant to the matter and gives each of these an ubalanced and embarassing interpretation as this following example shows:

    “There is Clause (7) of Article XVI which states (he does not use the word provide as it is a provision and instead refers to it as a statement) that ” The Executive Council other than the Mentri Besar shall hold office at His Royal Highnesses pleasure”.

    He then goes on to say that the Sultan “forgot” to sack the executive and rants and raves about consequences which are not provided for in the constitution. How does NH Chan come to the conclusion that the Sultan forgot to sack the executives in the process? What evidence other than a personal attack on the Sultan’s competence does he draw from?

    The Sultan did not forget to do what he could do. He merely exercised a discretion properly available to him under the constitution and some like NH Chan simply did not like that.

    In the exercise of his discretion the Sultan simply did not forget to sack the others. He instead allowed each of them to remain which he is able to do “at his pleasure”. Chan conveniently forgets or is oblivious to the meaning of what he quoted before making that utterly embarassing statement about the Sultan “forgetting”.

    There is more embarassment about NH Chan, his ownd ecisions as a judge and his contumely against the Sultan which I will save for future comment.

    The above for the moment is satisfactory for the fact it deals with not only what I believe are the critical issues in an unpopular decision the Sultan took.

    It is common knowledge to those who bother to read and whose ascendency to high office is not the result of lobbying like NH Chan’s career that there is more to popular nerdish reading that makes for a good accomplished professional. It all comes out in the wash in the end.

    NH Chan owes His Royal Highness the Sultan of Perak an unreserved apology as a former officer of the Supreme Court of Malaysia and as a former judicial officer.

    His conduct in shooting from the hip is unconscionable, ill informed, ill conceived, divisive, ignorant and dangerously provocative.

    Gopal Raj Kumar

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