Do the honourable thing, Najib

MAY 15 — The last three months have seen a flurry of activity on the Perak political front. All of this was without any doubt occasioned by Datuk Seri Najib Razak’s blatantly cynical, barefaced manipulation of human greed. Najib is no novice when it comes to money matters. He succeeded spectacularly in seducing the three most unremarkable and positively unpleasant Pakatan Rakyat characters to declare themselves independent supporters of the Barisan Nasional.

They have, as to be expected, denied most vehemently that they had succumbed to any such unworthy and degrading temptation as money. Conventional wisdom, on the other hand, says that Malaysian politicians will only transfer their party allegiance for cash, and not principle. I leave you to draw your own conclusion in this particular case.

Najib’s single act of subterfuge has been remarkable for the damage, and repercussions, to the Malaysian body politic, quite apart from damaging further his own already seriously bruised reputation. If he thought what he had done was an example of cutting edge political sophistication, I suggest he should think again. He has by his reckless adventure only succeeded in portraying himself as nothing more than a common garden variety, and not the statesman that we thought he would become given his father’s honoured place in our history and his family credentials.

In the event, he seems to me to be no better than Tun Dr Mahathir Mohamad, the roughneck street fighter. What a bad start for someone who begins his premiership on a discordant note, encumbered with enormous baggage to boot: any chance of redeeming himself has gone down the Sungai Perak, baggage and all. However, all is not lost. If he has any sense of self-worth, justice and integrity, he should take immediate steps to untangle the political mess he created. My father’s injunction to me as a very playful boy was, “Don’t start something you can’t finish.”

It is still relevant and appropriate advice, in my view, to give particularly to Najib who desires so devoutly to be loved and embraced as a people’s prime minister. He should practise what he is preaching so fervently about the importance of “feeling the pulse” of the people. If his close advisers are not telling him what really is going on in the towns and cities, big and small, as well as in the poor and neglected villages and hamlets up and down the country, then let me tell him some inconvenient truths about Perak that he might not particularly want to hear.

The people of Perak and, by extension, the overwhelming majority of the people of this country want to see an immediate end to the unseemly and totally disgraceful and disgusting display of political opportunism by the Umno-BN axis that has dragged the much-loved Sultan of Perak into political controversy that could have been avoided in the first place. His Royal Highness could have been spared the indignity of being reviled and ridiculed if Najib had thought more carefully about the fallout from his politically immature act.

As a responsible “people’s prime minister”, he has a duty to the people and the Sultan of Perak to return some semblance of order to their state which has since become the butt of some very unkind jokes. Najib does, of course, recognise that what the people want is for the state assembly to be dissolved so that fresh elections may be held. He is on record as admitting this as a way out of the current impasse, but claims that it is really up to the Sultan to decide.

We naturally respect his concern not to be seen to interfere with royal prerogatives. However, we wish he would stop playing poker and drop the hypocrisy because the reality is that he exercises considerable influence in matters of state, and he jolly well knows it.

The Perak crisis is pregnant with potential for mischief making, and you do not have to be the director of the Special Branch to know that unless something was put right quickly, the seething public anger could be exploited by enemies of the state to the detriment of our nascent democracy, peace and security. Najib must finish the dirty job he started by going back to the people. His Royal Highness the Sultan will not stand in the way of a just and popular solution. This is the only way to stop the rot that has already paralysed the government of Perak. Another day’s delay to dissolve the state assembly is another opportunity lost to return Perak to political sanity. Najib cannot just sit tight and look the other way hoping the crisis he fomented would just blow away.

The choice for the prime minister is a simple one: either elect to conduct himself like a common, opportunistic politician and face the dire consequences of his perfidious behaviour or a statesman who is concerned more with nation building on a lasting basis than opting for short-term political gains that may well turn out to be illusory. His 1 Malaysia, already riddled with contradictions and inconsistencies, will not amount to anything if the Perak crisis remains stuck in limbo. The ball is in his court. -- The Malaysian Insider

---

About the Author:
Tunku Aziz, one of the prime movers in setting up Transparency International Malaysia, in happier times was regarded by Prime Minister Abdullah Badawi as "one man (who) was able to harness his personal passion and deep commitment to the values of ethics and integrity, give it a larger purpose and meaning, and turn it into a force to transform society for the better." Why then was he left out of the MACC Advisory Group? He is regarded as being too outspoken for comfort and, therefore, difficult to handle.

A Most Courageous Judge - A High Court Judge Succeeded Where The Federal Court Failed

By Matthias Chang
Tuesday, 12 May 2009 09:24



The pressure on the High Court Judge to do what is “politically correct” must have been intense. There is a culture prevalent among some members of the judiciary that it is better to make “politically correct” decisions so as to secure one’s career than to do justice on the spurious ground that there are appellate courts which should bear the weight and responsibility of such controversial decisions.

It is the passing-the-buck syndrome. These judges would surmise that if they handed down a judgment which is not politically correct and on appeal, the judgment is overruled, it is as good as ending their career – cold storaged till retirement age. Better that the Federal Court (the Apex Court) being the final authority, bear the brunt of the Executive’s wrath as they have the advantage of strength in numbers, as the corum of the Apex Court can be enlarged to nine. There is safety in numbers.

Therefore, credit must be given to the Honourable Justice Datuk Abdul Aziz Abdul Rahim for handing down this historic judgment.

Lawyers are officers of the court and like judges, must likewise be courageous in the discharge of their duties. They must not pander to the whims and fancies of their client, no matter how powerful.

If a case is crystal clear and the client is wrong, it behoves the lawyer to advice the client accordingly so as not to pervert the course of justice.

A courageous lawyer in such circumstances will also lend assistance to a Judge to arrive at a just decision and not succumb to the temptation to do what is deemed “politically correct”.

The observation of the Judge as to the conduct of the State Legal Adviser, Datuk Ahmad Kamal illustrates the above principle. It was reported in the Sun newspaper and I quote:

“On the issue of the affidavit by Perak State Legal Adviser Datuk Ahmad Kamal Md Shahid, Abdul Aziz ruled that he was not a neutral and impartial witness. ‘It was his own admission that he was instructed by the respondent’s counsel to affirm the affidavit. The word instructed is a very strong word. To me, he is not a neutral or impartial witness; his testimony was coloured by the instruction that he received,’ said Abdul Aziz.

“Kamal is the State Legal Adviser and his duty is to advise on all legal matters referred to him, including advising Nizar on the draft proclamation…”

Given the above observations by the said Judge, it seems to me not right for the Counsel for the respondents to “instruct” the State Legal Adviser to affirm an affidavit in the manner in which it was done.

It has been indicated by the Prime Minister that Barisan Nasional would be appealing to the Court of Appeal against the judgment handed down by the High Court.

If, the Prime Minister is sincere in his comments that politicians must be humble and gain the trust of the rakyat, then he must practice what he had preached. And if he has the confidence and trust of the rakyat, he should have no qualms in agreeing to the dissolution of the Perak State Assembly, have a snap election and let the rakyat be the ultimate judge as to which government they want to rule over them in the state of Perak.

If the Prime Minister insist that might is right, he will be the first one-term prime minister in Malaysia. While Badawi has the ignominious distinction of having wrecked the Barisan Nasional, it would be Najib who will be vilified for burying UMNO under the rubbish heap of history.

Members of UMNO, you better ensure that Najib makes the right decision or your “gravy train” will be derailed for good.

Najib must clear his own mess

The MALAYSIAN Insider - I never for a moment thought I should live to see the day when a traditional hereditary ruler of a Malay State has taken such a rapid slide in his people’s estimation, approbation and adulation as has the Sultan Azlan Shah of Perak. It took one unfortunate, ill-conceived and ill-considered decision over a petition by the Pakatan Rakyat Mentri Besar Datuk Nizar Jamaluddin, to dissolve the Perak State Assembly that has turned Perak into a politically difficult and dangerous situation.

His Highness Sultan Azlan Shah is no ordinary ruler. As a former Lord President and head of the Malaysian judiciary, he ascended the throne of Perak as someone well-qualified by education and training for what, for all practical purposes, is a largely ceremonial sinecure. Be that as it may, the position carries a heavy constitutional responsibility.

It has become quite apparent that while his legal knowledge may be assumed to be extensive, his training more than adequate, his wisdom in dealing with a delicate and important political matter of public concern, on reflection, has in my humble opinion, turned out to be questionable. A great deficiency in a ruler who showed so much early promise of being a wise, liberal minded and benevolent leader.

When the final chapter of the Perak constitutional fiasco comes to be written, the country, and the world, will be able revisit and understand better the magnitude of the debilitating effects of the royal decision on the Malaysian body politic. Malaysians, in particular, will view with horror the ugly scars left on their nation’s nascent democracy, and they will be constantly reminded how one hasty error of judgement was enough to trigger a political tragedy of the worst imaginable kind. A Greek tragedy pales by comparison.

The saddest part of all is that the resultant unseemly legal wrangling could have been avoided. The fact that the flawed decision was not reversed, within a day or two when it became abundantly clear that the decision not to dissolve the Assembly and call for fresh elections was manifestly unfair and unethical, was nothing if not sheer carelessness, in all the circumstances. I maintain that even now it is not too late to reverse that politically fatal decision and bring to an end this disgraceful episode in the history of participatory representative government in our country.


There is no disgrace or humiliation in coming to terms with one’s honest mistake. No one, even the wisest among us, is infallible. If the Sultan believes, as we know he does passionately, that his royal duty is to serve the public interest, then NOW is the time to give that commitment practical effect.

The Perak fiasco is not about to run out of steam. We must accept that the situation will get worse before it gets better. I saw the images from the State Assembly “sitting” on national television at lunch time today (7 May 2009) with a sense of unbounded revulsion. The scene of warring politicians shouting invective was not a joy to behold.

To use a medical analogy, the Perak affair will be a running sore. Only the Sultan of Perak can provide an effective cure. To ignore what is obviously an untenable constitutional position is an act of grave irresponsibility, and while the Prime Minister thinks it is a great idea for him to give the impression that he is above it all, I should like to remind him that he is not blameless, far from it. It was his active act of muddying the Perak political waters that brought about this current crisis in the first place.

He now has a chance to show that he is not a partisan prime minister, but a national statesman who is prepared to intervene decisively to put matters right in fairness and equity.

Looking back, it was not such a clever personal coup after all. His machination was so abysmally repugnant even judged by the consistently low ethical and moral political standards of UMNO/BN that I find myself wondering whether I could trust him enough to buy my next second-hand car from him; this is the same man trying to persuade us to buy his 1 Malaysia. What a man! (With apologies to G.B.Shaw)

The Lesson From Perak

M. Bakri Musa
www.bakrimusa.com


The current political paralysis in Perak reflects the major failures of our key institutions. It is a total breakdown at the palace, the legislature, and the permanent establishment. It also exposes the glaring inadequacies of the judicial system which has yet to adjudicate this critical and urgent matter of state.

It is not however, the failure of the people, as some pundits have implied by quoting the old adage that we deserve the government we get. It is the voters’ prerogative whether to grant the incumbent party a stunning victory, humble it with an unstable slim majority, or even throw it into the ranks of the opposition. Canada and Italy have a long history of minority governments, and they have managed well.

A mark of a mature democracy, or any system for that matter, is the transfer of power from one entity to another smoothly and predictably. Perak is a spectacular failure; it is also a preview for Malaysia.

Perak is one of three state governments that changed hands as a consequence of the 2008 general elections. In the other two, Kedah and Penang, the transition went much smoother. There were hiccups of course, like the destruction of state documents and the dissolution of legislators’ wives’ club in Selangor, for example. That reflected more infantile behaviors than institutional failure. Why Perak should be the exception merits careful consideration.

We used to assume that if only we could get qualified and experienced people, then no matter how battered or inadequate our institutions, those people would rise up to the challenge. In Perak, we have a sultan who by any measure is the most qualified and experienced, having served as the nation’s top judge for many years. Yet his decision in this critical matter, which demanded the most judicious of judgment, proved to be unwise and precipitous. And that is putting it mildly.

This is not hindsight. Even at the time when he made that pivotal decision (which was the singular event that triggered developments which culminated in the spectacle of May 7), the voice of the people was loud and clear. Only that the sultan refused to hear or chose to ignore it. No amount of subsequent royal pontifications will ever rectify or justify this error. Only a reversal of that earlier erroneous decision would.

It was too bad that Sultan Azlan Shah deputized his Raja Muda to the May 7th opening of the legislature. While that may have spared the sultan the spectacle and embarrassment of being physically entrapped by the bedlam, he missed a splendid opportunity to witness firsthand what his modern-day version of hulubalangs was up to! Instead it was his Raja Muda who was left to cool his heels for a good six hours! Well, let us hope that at least it was an edifying experience for him.

It was nonetheless pathetic to see the Raja Muda reduced to pleading for respect for his speech! Few, not even the normally pliant mainstream media, bothered to carry his speech in full. So much for the respect that he desperately sought!


Amazingly in his speech, the Raja Muda did not deem it important or necessary to comment on the ugly spectacle he had just witnessed and been a part of. He remained aloof and strangely uncurious. He must have been in temporary suspended animation, oblivious of his immediate surroundings, during his six-hour wait. He was from another planet, earlier programmed to deliver his royal speech and then leave! Nothing more; for that you would have to reprogram him again!

The principal political protagonists here were Barisan Nasional’s Zamry Kadir, a Temple University PhD, and Pakatan’s Nizar Jamaluddin, a professional engineer fluent in multiple languages. Then there was the Speaker of the House, Sivakumar, a lawyer by profession. Their impressive diplomas and credentials meant nothing; they only looked impressive when framed and hanged on their office walls.

Instead of being the stabilizing force and buffering factor, the permanent establishment, from the State Secretary to the State Legal Advisor and the Chief of Police, was hopelessly ensnared in the mess through their highly partisan performances. They rapidly degenerated to being part of the problem (and a very significant one at that) instead of the solution.

As for the judiciary, it failed to appreciate the urgency and gravity of the crisis. Thus the case did not merit an expedited hearing and left to meander through the usual slow judicial pathway. By contrast, the 2000 American elections that saw the Florida ballot counts being litigated, the case ended up at the Supreme Court for a definitive decision in a matter of days, not months.

Lessons Learned

Thanks to modern technology, those who were not there in Ipoh could still follow the unfolding events in real time, trumping the severe censorship machinery of the government. Not that it was ever effective, just like the rest of the government.

Unfortunately there is not much that we could learn from the sorry spectacle. Even to declare that it reflected the sorry state of our institutions would be inadequate. Besides, we already have too many affirmations of that sad reality.

The next reflex reaction would be to declare, “Everyone is to be blamed!” While that is an understandable response, it does not solve anything, for the corollary to that statement would be that no one is to be blamed. That would be a cop out; we are all not equally culpable.

Everyone in the chain of events could have stopped if not reversed the destructive sequence right up to the day before the infamous debacle at the legislature. Failing that, the buck must and should stop somewhere. In our system, the buck stops at the highest level, the palace.

Consider the chain of events again. First there were those renegade legislators switching party affiliations. No law against that; it was their choice. Perhaps that would galvanize the leaders of the party they had deserted to do a better job of screening and scrutinizing their future candidates. Maybe primary elections among party members (as in America) instead of a decision from headquarters would produce better and more reliable candidates. That certainly would be a useful lesson.

However, this being Malaysia, things get more interesting. It turned out that those turncoats were earlier being investigated for corruption. Miraculously after their switchover, the charges were not pursued! So far no journalist has any thought of following that lead.

Even if those characters were pure, their switching over should never have triggered such a mess. Surely they could wait till the next sitting of the legislature to introduce whatever vote of no confidence they may have in mind of the leadership, and thus bring down the sitting government in the traditional and only legitimate way.

Even if leaders of the Barisan coalition were to petition the sultan to dismiss the sitting Chief Minister (which they did), the sultan ought to first also hear out the incumbent before making a decision. Common sense dictates that. One does not have to be a judge or have read the weighty tomes of legal luminaries to appreciate that elementary dictum. Hear both sides before rendering a decision! Even a new father knows that.

Sultan Azlan Shah cannot pretend to be able to read or predict the thinking of his legislators after only a few moments of “chat” under the most severe royal protocol at the palace. That would be the height of royal arrogance. In any other circumstance, decisions made under such surroundings could be considered as coerced. Besides, it is their collective judgment expressed openly in a properly convened legislative forum that matters. Not only could you not predict individual behaviors, you could never foretell the group dynamics and the final collective decision.

If our political leaders make a mistake, they are held accountable. Just ask Abdullah Badawi. The buck with the present imbroglio stops at the palace, with Sultan Azlan Shah. Unfortunately in our system at present, there is no effective system of checks and balances with respect to our monarchs, both at the state as well as federal levels. They are also immune to prosecution in the conduct of their official duties. There is no mechanism to fire or censure them. The Special Tribunal is only for prosecuting their personal misconduct. Well, at least that is a beginning, a measure of some accountability.

Regardless whether we have an effective system of checks and balances with respect to the sultans, our society has irreversibly changed. The old feudal order is now gone, for good, and never to return. Get used to it! In today’s world, the people is sovereign. Just ask the descendents of the late Shah Pahlavi and King Farouk, or closer to home, the Sultan of Sulu.

I tried to convey this in my poem, Makna Merdeka 50 (Meaning of Merdeka 50), I wrote to commemorate our 50th year of independence. I quote a couple of stanzas:

Rakyat negri bukan nya kuli

Untok di kerah ka sana sini

Zaman purba tak akan kembali

Mungkin menteri di buang negri!

Renungkan nasib si Idi Amin

Yang Shah Pahlavi pun tak terjamin

Pemimpin negri mesti meninggati

Rakyat – bukan Raja – yang di daulati!

(Blessed with freedom and reason are God’s children/To lords and kings we are not beholden/The feudal order has long been toppled/Let’s be clear, the sovereign is the people!

Ponder the fate of one Idi Amin/That of Shah Pahlavi was equally grim!/Those realities our leaders must heed/“Power to the people!” is the new creed.)

That in essence is the pertinent lesson from Perak.

1 Malaysia? Not Even 1 Perak!

By Dzulkifli Ahmad

The Malaysian Insider, MAY 9 — It has finally come to this. An impasse or a deadlock in the Perak state assembly for the last three months has finally turned into anarchy. A total disgrace to the nation witnessed by the entire world. In utter contempt of the legislative body, the ugly scene where a disputed speaker could summon the sergeant-at-arms to forcibly remove the rightful speaker tells it all. It wasn’t just crude and brute but smacks of contempt for the august House. The rest was hell broke lose, total chaos and a great dishonour to the nation, quite unknown and unheard of in any civilised society.

What has become of the BN government under the newly minted premiership of Datuk Seri Najib Razak? Only into the first month of his regime, he has already committed excesses which indeed spell doom for this nation. The recent spate of detentions is totally uncalled for and extremely disturbing. And all these after pronouncing his famous mantra of 1 Malaysia! Disgusting. Is he out of his mind? What 1 Malaysia is he talking about? He can’t even put 1 Perak in place!

What is most disconcerting is the fact that the entire fracas could have been tactfully avoided if only the BN could wait for the outcome of the judicial review submitted by Mentri Besar Datuk Seri Nizar Jamaluddin that will be heard in the High Court in Kuala Lumpur on Monday. Nizar would by then know whether he is successful in having the High Court proclaim him as the rightful Perak mentri besar. Why did they want the assembly to proceed in haste despite knowing of the pending ugly scenario that will shame all? Many are still left wondering.

The court decision could bring to an end the prolonged impasse in the state triggered by the defections of the three Pakatan representatives to become BN-friendly independents. This situation has allowed BN to have the strength of numbers in the state assembly, which resulted in the Perak Sultan requesting that Nizar step down and immediately appointing Datuk Zambry Abd Kadir as the new mentri besar in February.

Justice Datuk Abdul Aziz will make his ruling on Monday after having heard submissions from Nizar’s lead counsel Sulaiman Abdullah. For the record, his lead counsel has reminded the court that the function of the monarch is to appoint a mentri besar after the general election and to dissolve the assembly.

Sulaiman has emphatically argued that under no circumstances can the Ruler decide to investigate or hold an inquiry to find who commands the majority and then appoint a new mentri besar. While admitting that there is a lacuna or loophole in both the Federal and Perak state constitutions on matters of removal of the mentri besar or the chief executive, such powers are, however, not provided for in the constitutions, argued the lead counsel.

Now that the situation has turned into such a dreadful ending, one can’t help thinking why has the monarch, who was once Lord President of the Supreme Court, a great legal mind, allowed this impasse to turn so chaotic and into anarchy. Couldn’t the monarch have averted all this by dissolving the legislative assembly on that fateful Feb 5 and render back to the rakyat their mundane and democratic role of electing a new government for the state in accordance with and abiding by the rules and dictates of a free and fair electoral process.

That would have doubly served the interest of safeguarding the sanctity of the constitutional monarch much as it would render the right of choosing the government of the day to the people of Perak. By so doing, not only would the monarch be above politics but actually seen to be so.

Regrettably that wasn’t made possible by political bigotry that now attempts at hoodwinking the rakyat by spinning the slogan of 1 Malaysia. It takes a different paradigm shift of mindset and leadership to bring the nation out of this mediocrity and to propel it to greater heights.

The unfortunate events of May 7 have undoubtedly showed that sanity must return in order to restore order and stability to the government in Perak. And that can only be possibly achieved by dissolving the legislative assembly and holding fresh elections. Until such time, the people of Perak and the rest of the nation must be in black, to together say that we are repugnant to consigning the death of democracy in Perak! -- The Malaysian Insider

Dr Dzulkifli Ahmad is the PAS director of strategy and also Kuala Selangor MP.

Sivakumar remains Umno’s stumbling block

Mohamed Hanipa Maidin sits on the Pas central committee and is the Pas legal adviser. He is also a lawyer who blogs at peguampas.blogspot.com

On Thursday the Federal Court declared that the three independent Perak state assemblymen have not resigned and remain as state assemblymen. A five-man panel, in an unanimous decision, made this declaration after it ruled that the Election Commission has the right to decide the status of the three state seats.

The three — Hee Yit Foong (Jelapang), Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Mohd Jailu (Changkat Jering) — had applied to the Federal Court for an interpretation of points of law in the Perak Constitution with regard to vacancies of state seats and whether it was the EC or the Speaker of the Perak legislature who had the final say in determining the vacancy of a state seat.

Court of Appeal president Justice Alauddin Mohd Sheriff, who chaired the panel, said the EC was the rightful entity to establish if a seat in the Perak State Assembly was vacant.

One may ask whether the Federal Court decision finally determines once and for all the legal status of the three assemblymen. The simple answer is a resounding no.

Before I share the reasons, it is germane to highlight here the thrust of the Federal Court’s judgment.

Basically the court was asked to determine the following issue, namely which authority has the power to determine the casual vacancy of the three state seats. Was the power vested in the speaker or the EC?

Since the court ruled that the power was vested in the EC, the latter was therefore entitled to establish that the three state seats were not vacant. Be that as it may the EC was not required to hold any by-election in those three state seats.

As the EC had made a decision that the three state seats were not vacant, it therefore follows that the three state assemblymen remain as state assemblymen.

It is submitted that despite the aforementioned decision of the Federal Court, the legal status of three assemblymen could still be challenged. There are few reasons for that.

The Federal Court merely decided which authority was empowered to determine the casual vacancy of the state seats. Nothing more, nothing less.

Just because the EC has the power to determine the casual vacancy of a state constituency, that does not ipso facto mean such a decision is valid and good in the eyes of law. The legality of the decision of the EC may still, under the law, be challenged by any aggrieved party.

The Federal Court’s judgment did not touch upon the issue of the legality of the EC’s decision and the reason being it was not asked to do that by the three assemblymen.

It is trite law that any decision by a public authority such as the EC is susceptible to judicial review. Since the court has not decided on the legality issue of the EC’s decision, the EC’s decision can still be quashed by the court if it is proven that it was legally flawed or tainted with elements of illegality or irrationality or procedural impropriety or bias or mala fide, etc.

To his credit, Perak Speaker V. Sivakumar has filed an application for a judicial review against the decision of the EC in the Kuala Lumpur High Court. The latter has fixed the hearing of the application in May.

Even the Federal Court conceded that its decision did not prejudice the judicial review application filed by Sivakumar. When one of the lawyers representing Sivakumar, Ranjit Singh, asked if the decision meant that it would be without prejudice to two related judicial review applications in the Kuala Lumpur High Court, Justice Alauddin said: “It is understood (that it would be without prejudice).”

In the circumstances, until and unless the court has finally determined the status of the three assemblymen via the judicial review application by Sivakumar, the status of the former remains in limbo despite the Federal Court’s decision.

If that is the case one may ask whether Sivakumar has the power to restrain the three assemblymen from entering the state assembly. Frankly speaking I can see no reason for Sivakumar not to exercise his power to bar these three individuals from going in.

Nowhere in the Federal Court’s judgment is said that Sivakumar is prohibited from restraining the three state assemblymen from entering the state assembly. The three assemblymen merely obtained declaratory reliefs and such reliefs, from the legal perspective, are incapable of imposing any obligations on Sivakumar. In other words as far as Sivakumar is concerned , the declaratory reliefs obtained by Umno are impotent.

In short, one may conclude that the Federal Court may send the three assemblymen in but it seems to me that the Federal Court implicitly allows Sivakumar to send them out in the absence of any order restraining Sivakumar from doing that.

Despite the victorious judgment obtained by Umno, that per se does not help it in curbing Sivakumar’s power. No matter what it takes, Umno has to acknowledge that Sivakumar remains its stumbling block “dulu, kini dan selamanya”. ---The Malaysian Insider

How to judge the judge?

by N. H. Chan

In The Sun newspaper, March 4, 2009, I read on page 1 this alarming report:

“Ipoh High Court grants injunction sought by Datuk Dr Zambry Abdul Kadir and the six State Executive Councillors to stop speaker V. Sivakumar from convening any state assembly sitting.
Court also ruled that Sivakumar’s five lawyers have no legal standing to represent him in the case filed by Zambry to seek a declaration that Sivakumar’s decision to suspend him and his executive council was unconstitutional and unlawful.”

The arrogance of a novice judge

I must say I was taken aback by the astonishing ruling of the High Court judge. The full report is on page 6 of the newspaper. There I find that the judge was Mr Ridwan Ibrahim, a judicial commissioner. He ruled that the lawyers “engaged by Sivakumar had no locus standi to represent him in an application by Perak Mentri Besar Datuk Dr Zambry Abdul Kadir, who is seeking a declaration that Sivakumar’s decision to suspend him and his executive council was unconstitutional and unlawful”.

Sivakumar’s leading lawyer was Mr Tommy Thomas, and I quote from the newspaper of what he said:

“Thomas recounted what happened in chambers at a press conference outside the court.
He said the judge had earlier asked that only one lawyer from each party enter his chambers, so he (Thomas) went in on behalf of Sivakumar, while Zambry was represented by a counsel and the state legal officer.
‘An objection was made against me and my team, saying that we had no locus standi to represent the Speaker’.”

The objection was under section 24 of the Government Proceedings Act:

” … ‘the judge ruled against us saying that we had no locus standi and therefore we cannot defend the Speaker who can only be represented by the state legal adviser’.
. . . when he asked if he couid sit in and hold a watching brief with speaking rights, Ridwan ruled that no speaking rights would be granted but he could hold a watching brief.”

I am appalled at the arrogance of the judge. I am quite sure he is not an expert in constitutional law and even if he were, in a case of such great public importance to the nation, it is wise to listen to the views of the other side. Especially in this case, when eminent counsel Mr Tommy Thomas was available to assist him. The judge could have invited him to submit as an amicus curiae - in Latin it means ‘friend of the court’ and when the phrase is used in a court of law i means ‘one who advises the court in a csae’. I have done that many times even when I was in the Court of Appeal. Judges of far greater eminence than this Judicial Commissioner have often asked lawyers of great experience who are in the court for their valued views. Yet this judge thought he knew everything that he did not require any assistance from one of the top lawyers in the country. Dick Hamilton in his book Foul Bills and Dagger Money wrote, at pages 244, 245:

“It is always easy to criticise judges, and some of them deserve it from time to time; but it is even easier to underestimate the difficulty of their task, and to take their successes for granted. No member of the Bar pretends to understand every branch of the law. … But a High Court Judge has to deal with any sort of case which comes before him.”

In order for the judge to tackle all sorts of cases which come before him, the wise and able judge is always humble enough to ask any of the lawyers in court who is an expert in his field for assistance. Here we have Tommy Thomas who is one of the top lawyers in the country who was only too willing to assist the judge, yet this probationary judge, who thinks he knew more law than some of the most eminent judges who have sat on the bench, refused to hear Mr Thomas.

How you can judge this judge

You cannot judge a judge unless you know the basic law yourself. But you do not have to worry because I shall now provide you with the law applicable so that you are in a position to judge the judge. You may be surprised at your own ability after you have read this. You might think that even a layman, after reading the applicable law, knows what is the right decision to make. And when a judge does not know the correct answer, it makes you wonder how such a thing could have happened.

On section 24 of the Government Proceedings Act 1956

I shall start with section 24 of the Government Proceedings Act 1956. I have highlighted the important words for easier reading. Subsections (1) reads:

“(1) Notwithstanding any written law
(a) in civil proceedings by or against the Federal Government …
(b) in civil proceedings by or against the Government of a State a law officer … authorised by the Legal Adviser of such State … may appear as advocate on behalf of such Government … “

As you can see this subsection is not relevant as it only applies to civil suits brought by or against the State Government.

And subsection (2), which is relevant on the subject of discussion, reads:

“(2) Notwithstanding any written law in civil proceedings to which a public officer is a party -
(a) by virtue of his office; or
(b) in his personal capacity, if the Attorney General certifies in writing that it is in the public interest that such officer should be represented by a legal officer;
a legal officer may appear as advocate on behalf of such officer … “

See also section 2 of the Act which gives the definition of:

” ‘legal officer’ includes a law officer”
” ‘law officer’ means . . . in respect of proceedings by or against the Government of a State or to which a State officer is a party, includes the Legal Adviser of such State”

This subsection only applies to civil suits brought by or against a public officer. In such a case, a public officer may (the word is “may” not “must”) be represented by a legal officer which could include the Legal Adviser of the State. There is, therefore, nothing in section 24(2) of the Government Proceedings Act to suggest that a public officer if he sues or if he is sued must be represented by a legal officer such as the State Legal Officer.

In any case, section 24(2) of the Government Proceedings Act only applies to civil proceedings to which a public officer is a party. Therefore, the question is, does the Speaker of the Legislative Assembly of a State hold office as a member of the public service - if he does then he is a public officer. Article 132, Clause (3) of the Federal Constitution states that:

“(3) The public service shall not be taken to comprise -
(a) …
(b) the office of President, Speaker, Deputy President, Deputy Speaker or member of either House of Parliament or of the Legislative Assembly of a State;”

So now you koow that the Speaker and the members of the Legislative Assembly of a State are not part of the public service as they do not hold office as such public officers. Therefore, section 24(2) of the Government Proceedings Act does not apply to them. Now we all know, except the judge because he thought he knew better, that Mr Tommy Thomas could not be prevented to appear for the Speaker Sivakumar. If only he would hear Mr Thomas, instead of barring him from speaking, he would not have made such a grave error.

On the conflict between the Speaker of the Legislative Assembly and the Law

According to newspaper reports the case is an application by Mentri Besar Zambry to the court the decision of the speaker Sivakumar in the legislative assembly to suspend him and his 6 exco members unconstitutional and unlawful. The question is, can the courts decide on the validity of the proceedings in the Legislative Assembly?

The answer is staring right at us here in Federal Constitution. Article 72, Clauses (1) to (3) states:

“(1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

(2) No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the Legislative Assembly of any State or of any committee thereof.

(3) No person shall be liable to any proceedings in any court in respect of anything published by or under the authority of the Legislative Assembly of any State.”

So now you know from the Federal Constitution itself that the validity of the suspension of Zambry and his 6 exco members by the Speaker in the State Assembly cannot be questioned in any court.

Lord Denning tried to inquire into a private Act of Parliament on the ground that Parliament was misled by fraud but he failed. The case is Pickin v. British Railways Board [1974] A.C. 765. He recounted this in his book What Next in the Law at page 319:

“A little while ago there was a case where the British Railways Board got a private Act vesting a man’s land in the Board without payment. He alleged that Parliament had been misled by fraud. In the Court of Appeal we held that the judges could inquire into it. But the House of Lords overruled us. They held that no inquiry by the judges could be permitted.”

It is important to remember that the United Kingdom does not have a written constitution. What more when we have a written constitution which says that “the validity of any proceedings in the State Legislative Assembly shall not be questioned in any court”.

From what we have read from the newspapers it seems that there is an injunction against the Speaker. You may also wonder how an injunction can be obtained against the Speaker when our written constitution says that “no person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the Legislative Assembly of the State”.

In The Family Story, Lord Denning tells us this story, at pages 194, 195:

“I would recall the great case of Ashby v. White 1 Smith’s Leading Cases 253 in 1703. There was a conflict between the House of Commons and the Law. A ‘poor indigent’ man named Mathias Ashby went to the polling booth and claimed a right to vote for two members of Parliament: but the voting officers refused to allow him to vote on the ground that he was no settled inhabitant of the borough. Ashby brought an action for damages. The House of Lords then resolved that Ashby was entitled to bring his action and to recover his damages of £5. The House there not only vindicated the fundamental right of a citizen to vote, but it also established the great principle that wherever a man has a right, he shall have a remedy at law to enforce it. The decision, so clearly a broadening of freedom, was, however, furiously opposed by the House of Commons. They ordered the arrest of the solicitor who acted for Ashby; and they committed to prison five other men simply because they, like Ashby, brought actions against the returning officers. These men applied for a writ of habeas corpus. They had counsel to argue for them. But the House of Commons thereupon took action against the counsel. The Sergeant-at-Arms actually arrested two of the counsel and would also have liked to have taken a third, Mr Nicholas Lechmere, ‘but that he got out of his chamber in the Temple, two pair of stairs high, at the back window, by the help of his sheets and a rope’. The controversy between the two Houses was only resolved because Queen Anne prorogued Parliament and the prisoners were released.”

The above account is not as strange as it seems. It is the common law of England and the common law of England that was in force on 7 April 1956 is embodied into the common law of West Malaysia, and the state of Perak is in West Malaysia, by virtue of section 3(1) of the Civil Law Act 1956.

There is an interesting episode in Lord Denning’s The Family Story about a breach of the privileges of the House of Commons. He wrote, at page 192:

“In the ordinary way there is no conflict between our two great institutions - Parliament and the Courts. But in exceptional cases there has been. … The Houses of Parliament enjoy certain privileges. One of them is freedom of speech. Erskine May says: ‘What is said or done within the walls of Parliament cannot be enquired into in a court of law’.”

At page 193:

“On 8 February 1957 Mr Strause M.P. wrote a letter - on House of Commons paper - to Mr Maudling, the Paymaster-General. He complained of the behaviour of the London Electricity Board. He said that they were disposing of scrap cables at too low a price. He said their conduct was a scandal. Mr Maudling … passed the complaints on to the London Electricity Board. … The Board’s solicitor on 4 March 1957 wrote saying:
Your letter is wholly unsatisfactory and we are instituting proceedings …
That simple solicitor’s letter raised the great constitutional issue. Who was supreme? Parliament or the Courts of Law? Mr Strause said the letter (threatening a writ) was a breach of the priveleges of Parliament, and that the Board and its solicitor were punishable by the House itself. The London Electricity Boardsaid that they were entitled to have recourse to the Courts of Law and that the House of Commons could not stop them.
The issue was referred to the Privy Council. Seven Law Lords sat to hear them. I was one of them. I found myself in a minority of one. . . . They held that the House of Commons could treat the issue of a writ against a Member of Parliament - in respect of a speech or proceeding in Parliament - as a breach of its privileges.”

At page 194:

“So if you read the Report in the Law Reports - re the Parliamentary Privileges Act 1770 [1958] A.C. 331 - you would think that it was a unanimous opinion of all seven,”

Those of you who are lawyers will know that the decision or advice of the Privy Council is given as a single opinion - only the majority view is given.

——————————————————————————–
NH CHAN, who is former Court of Appeal judge, lives in Ipoh.