NH Chan a Myth in his own Lunchtime

AN INTRODUCTION TO JUDICIAL OPPROBRIUM

There is not yet an outpouring of public sentiment in support of NH Chan’s novel interpretation of the Sultan’s exercise of his discretion in the so called Perak crisis. This is perhaps because the former judge NH Chan’s attack on the Sultan is embarrassing, provocative, demonstrates an unparalleled level of ignorance and it fails to properly particularise those legal issues at the core of his argument. Those who claim to support him will not lend their name to his egregious position in this matter. Not for now at least.

Those who do support the retired judge and the position he has adopted in the Perak constitutional crisis as it is now referred to, do so out of a misguided sentiment of respect for the man who for a time held high office as a judge in Malaysia.

There is also a suicidal remark from one of his colleagues, the  Court of Appeals Judge Sri Ram Gopal who for reasons of self preservation I suspect refers to NH Chan as a fine judge (Malaysian Insider). A daring testimony and one that must hang like a millstone around Sri Ram Gopal’s neck after a review of NH Chan’s performance in the link below.

In many respects Chan’s argument on the Perak crisis is an embarrassing  manifestation of his very narrow understanding of the constitution or how it operates in the context of political and legal matters. Hopefully his views in this regard are limited to his politics alone and not characteristic of his tenure as a judicial officer in Malaysia.

NH Chan’s analysis of the so called “Perak Crisis”  is flawed for a number of reasons. I will attempt to go through each of these in turn. Forgive me if I do not complete my responses in greater detail to NH Chan’s gratuitous insults on the intelligence of average readers of the constitution.

I now add to this essay a link to a public address to lawyers by the controversial judge NH Chan:

http://www.youtube.com/watch?v=mPXGff2Smlg&feature=related

NH Chan struggles to come to terms with words in his prepared speech which lacks any depth, flow or logic, raising serious doubt about the man’s understanding of the law even as he sees it. The irrelevance of his speech and the precedents he draws from makes one wonder if there will ever be a tribunal for people like him in future over his imposition of the death penalty on prisoners who have appeared before him during his tenure as judge.

NH CHAN’S THEORY-ABOUT THE DISMISSAL AND DISSOLUTION

At the outset NH 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 unenlightened. His flawed understanding of the workings of government and the constitution unravels itself throughout a rather unconvincing,  feeble and desultory argument to support his views on this matter.

It is fact that the Mentri Besar may, under the constitution, seek a dissolution of the house (legislature) for other reasons than that single reason postulated by NH Chan. Only one of these reasons being a situation where the Mentri Besar  “ has lost the confidence of the house“. This is but just  one situation where the Mentri Besar may seek the dissolution of the house and not the only situation as NH Chan claims.

There are many other instances where the Mentri Besar may seek dissolution of parliament. They include a situation where the Mentri Besar could decide to take advantage of his government’s increased popularity at  an any stage of his government’s life, to opportunistically enlarge his majority at an election he may wish to call before the end of his government’s term in office.

The latter may not be common practice in the state of Perak (at least on its contemporary recent history), but the provisions for the early dissolution of a parliament is universal within the commonwealth and in other common law countries as well. It is a tactical privilege available to any incumbent  government of the day.

Chan appears to be selectively interpreting provisions of the constitution as a document for his own ends (as if it were the ten commandments cast in tablets of stone). In the absence of any valid reason on his part to support his limited conclusions it is open to any reader then to extrapolate his reasons for doing so.

The constitution may and can be amended, circumvented or circumscribed for particular political, tactical, strategic or legal ends by those with a clearer understanding of the subject. It is a malleable document (where it exists in such form) and the idea of stretching its boundaries outside of its conventions is not new or novel.

WHERE AND WHY CHAN IS UNCONVINCING AND EMBARASSING

A DISCRETION TO EXERCISE

The Federal Constitution of Malaysia like the constitutions of most other common law nations, is a dynamic document on doctrine and theoretical concepts. Constitutions are principals fashioned on political concepts  and theories. They are not ‘Supreme Laws‘ as postulated by NH Chan and many Malaysian legal observers of the Malaysian Constitution. Even though the Constitution of Malaysia in its documentary form does say in its preamble that the Federal Constitution is the ‘Supreme Law of the Land’, an enlightened reader of the Constitution will know that that statement can be and is often misleading and that the Federal Constitution is not law.

Judges in Malaysia dealing with a matter of constitutional law are often confronted with the principles they have to apply in interpreting the constitution. That is because unlike most constitutions there is no guide to the Constitution of Malaysia as to what principles of interpretation should apply. It is not codified anywhere or stated  within the Constitution itself as to what principles of interpretation should apply. More often than not judges in Malaysia are found to deal with constitutional matters as if dealing with a statute and therefore they end up dealing with a constitutional matter as if they were dealing with a criminal, property or a matter of administrative law. NH Chan exemplifies that problem with the Malaysian Constitution and the inability of its judges to deal with properly such matters.

Neither the Federal Constitution nor the State Constitutions of Malaysia manifested exclusively in or restricted to the articles of the written document.

It (the Constitution) consists instead of a combination of written documents and conventions that become whole when read together when put into practice. Conventions exist in every constitution. They are as binding as the written components of the Constitution.

The Malaysian Federal Constitution and its state derivatives are not static principles or documents or a combination of both and were never intended to be so by their drafters.

Where Chan’s argument and all of his fire power turns into that proverbial “damp squib” is where he quotes verbatim to his detriment, the key phrase from the relevant article of the constitution “May act in his Discretion…………”. Discretion being the operative word in the relevant article he reads from. The word “He” is in reference to the Sultan.

The Sultan of Perak, much like the Agong as sovereign, enjoys certain powers under the Constitution. Some of these powers, they are able to exercise as Discretions. It is bestowed on them by the Constitution to exercise as discretionary powers. They are not powers imposing obligations on them compelling them to act in any specific way. Chan argues otherwise.

Chan fails to distinguish properly between a prerogative power, like the discretion available to the Sultan to exercise, and an imperative which imposes a duty upon a party, whether the party is the Sultan, NH Chan, you or I. That obligation compels the subject of the obligation to exercise their powers in a certain way.

Chan’s inability, his failure to distinguish between a discretion and an imperative is evident in and fatal to his commentary on the subject. He does not address the issue of the Discretion to the extent it is at the core of the Sultan’s decision derived from his powers under the Constitution.  Instead he attempts to sideline it to a collateral issue that requires a brief passing comment.

GRATUITOUS INSULTS AND VILIFICATION OF THE SULTAN

The opposition and elements of the Malaysian legal profession sprinkled with a vocal chorus of hot heads, without thinking for a minute about the accuracy Chan’s view, joins him in condemning the Sultan, treats the Sultan disrespectfully and vilifies him and his office by accusing him of having acted unfairly and unconstitutionally. That of itself is seditious.

In the process Chan and in other published commentary attributed to him (which he has failed to properly disassociate himself from), has brought the judiciary in Malaysia into disrepute. And it must be said that in doing so he has also brought parliament in Perak into disrepute as well.

THE SULTAN FORGETS WHAT CHAN WANTS

Chan goes on to quote copiously and verbatim from the constitutional provisions which he believes are relevant to his argument and gives each of these an unbalanced and embarrassingly narrow interpretation as this following example shows:

“There is Clause (7) of Article XVI which states that ” The Executive Council other than the Mentri Besar shall hold office at His Royal Highness’s pleasure”. (He does not use the word “provide” as it is a Provision of the constitution he refers to here. Instead he refers to it as a Statement which it is not by his saying “it states”). May sound a bit trivial but if someone argues perfection then they may as well be perfect themselves.

Interestingly Chan then goes on to suggest patronisingly that the Sultan “forgot” to sack the executive. He then rants and raves about consequences of not having done so which are not provided for in the constitution. How does Chan come to the conclusion that the Sultan “forgot” to sack the executives in the process? What evidence other than a personal dislike of the Sultan’s decision does he draw from?  Why could the Sultan not of his own volition in the exercise of his Discretion not decide that a sacking was not in order?

The Sultan did not forget to do what he could do. He merely exercised his Discretion properly available to him under the Constitution and some like Chan simply quite clearly did not like that. Perhaps it is because it failed to satisfy Chan’s very limited knowledge of the constitution or the outcomes Chan decided.

 

 

 

 

 

Gopal Raj Kumar