Thursday, 11 February 2010

Coffee Tablogs

A line from the Federal Court’s on Nizar versus Zambry decision:

“..terbuka untuk pemohon (Nizar) untuk membawa usul tidak percaya terhadap responden (Zambry) di LA (DPR) atau membuat representasi untuk Kebawah Duli (Baginda Sultan Perak) bila saja jika ia berfikir bahawa responden tidak menikmati sokongan daripada majoriti ahli LA..”

What exactly do these words mean?

Long, long ago, I learned of two Latin phrases – Ratio Dicedendi and Orbiter Dicta.

Both are concerned with legal decisions, but they are of different weight.

Ratio Dicedendi is the rationale behind a decision, while Orbiter Dicta are statements said in passing on certain issues which does not per se affect or influence the ultimate ruling.

The first is binding and sets a precedent, the latter does not.

What of the above remark by the Federal Court in the case? A plain reading seems to suggest it is mere Obiter Dicta as it doesn’t seem to have any weight on whether or not Nizar could succeed in his action against Zambry.

Bar Council’s Edmund Bon – who is also Nizar’s counsel – says it is an “escape clause” for the applicant.

It does suggest routes that could (should?) be taken when a government no longer seems to command the majority.

Two methods are spoken of: the motion of no confidence and a representation before the Ruler.

The first is quite common, but in reality, more a move to embarrass than to really do what it is supposed to be doing.

A move for such motion is usually proposed through the Speaker who will invariably be from the Government of the day. Enough said, I suppose.

More effective are those impromptu (technically speaking) vote of no confidence: Remember the Budget 2010 debacle when the Government scrapes through with only three (if I am not mistaken) votes?

That is one way of doing so without having to even raise such a motion in the first place.

Hypothetically, though, the government of the day can call such motion against itself and then represent to the Ruler dissolution of the State Assembly from loss of majority.

Will anyone do so, though? Nizar argued that he had attempted the same in his case.

In the MI article, Bon suggested the following to be truer to (political) reality: “If a Mentri Besar thinks he has lost the confidence already, he is never going to ask the Sultan to dissolve the Assembly anymore because backdoor dealings will be a better route to maintain or seize power.

More curious bit is the part about “the applicant”.

WHO exactly did the decision mean with respect making representations to the Ruler? The opposition? The prospective would-be Menteri Besar? The Speaker? Whosoever thinks that the majority is lost?

While Orbiter Dicta may well be opinions / legal views said in passing, but at the same time, they are persuasive in nature.

These are hypothetical suggestions but still very much based on legal applications, which later decisions can quote as persuasive views.

Weird, this one.

PS: As I am not a legal practitioner or a current student at law or even someone remotely related to the practice, the above are rants from one with the most basic of legal knowledge.

In other words, coffee table talk stuffs.

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