N.H. Chan: An inconvenient judge

Chan tells why he feels compelled to speak out.

If the Sultan had executive powers to rule, it is legally wrong, so they could apply for judicial review of the Sultan's decision. But I pointed out in my first article he has no executive power to rule because he is not an executive monarch, he is a constitutional monarch. What he did was morally wrong.

By Debra Chong
Picture by Choo Choy May


IPOH, April 30 — Chan Nyarn Hoi lives in a modest two-storey semi-detached house in a quiet lane near the state stadium in Perak with his wife, a dog and seven large Japanese carp.

At 74 years old and with ruddy smooth cheeks under a full head of snowy white hair, few would connect him to the acerbic, no-nonsense former judge Datuk N.H. Chan, who has in the last couple of months done the unthinkable: fire away missives at judges who have trampled on the Federal Constitution in deciding issues related to the power grab in Perak. His lengthy articles have reminded Malaysians of a time gone by when towering individuals sat on the Bench and simplified the Perak constitutional crisis for the common man.

Still seething over the events that transpired in Perak and decisions of the apex court, he says that if Malaysians are upset with the state of the judiciary and think that the present crop of judges are not up to the mark, they should exercise the power of their vote to change the state of affairs in the country.

Born in Ipoh on March 27, 1935, Chan was admitted to the Bar in 1961. He was a lawyer for almost two decades before becoming a High Court judge and moving to Kuala Lumpur.

He was among the first batch of High Court judges to be elevated to the Court of Appeal, set up in 1994 to act as an intermediate court between the High Court and the apex court.

Chan's first book, “Judging the Judges”, was published in 2007 and is a collection of his articles for the Perak Bar. Only 1,000 copies were published.

His second book, “How to Judge the Judges”, is expected to come out some time in the middle of the year. The final draft has just been sent to the publishers. They wanted him to include the Perak saga as well, but because it is ongoing, he had to draw a line somewhere. He has included some information in the epilogue.

In an exclusive interview, the former judge, who was recommended to the Bench by none other than Sultan Azlan Shah, the Sultan of Perak and a central figure in the present crisis, tells The Malaysian Insider why he feels compelled to speak out.

Q: Unlike many former judges, you have been very vocal in your criticisms against the judiciary. What drives you?

A: In the first place, I am not against the judiciary. I am sure there are some good judges around, only they have not manifested themselves in the present constitutional, should I say, crisis in Perak.

I expected James Foong JCA (as he then was, he is now a Federal Court judge) to do the right thing but he failed to do that. I suppose it takes great courage for a Court of Appeal judge who sat as a winger in the Federal Court to give a dissenting judgment.

Now, back to your question. When I became a judge I had to be true to my calling which is to know that the essence of justice is fair trial and the duty of the judge is to administer it according to law.

Lord Devlin in his book “The Judge”, wrote on page 4: “...impartiality and the appearance of it are the supreme judicial virtues. It is the verdict that matters, and if it is incorrupt, it is acceptable. To be incorrupt it must bear the stamp of a fair trial.”

And at page 85 he said: “The first — ought one to say the whole — duty of the judge is to administer justice according to law.”

Back to page 3, the book said: “What is the function of the judge? Professor Jaffe has a phrase for it — 'the disinterested application of known law' (Jaffe in his book “English and American Judges as Lawmakers”, page 13)”

This means that the judge's only duty is to do justice in the disinterested application of known law. Known law means basic law and the term includes both common law and statute law.

The judge who gives the right judgment but does not appear to be impartial is useless to the judicial process. After that, the judge's whole duty or function is to decide the case according to law on the admissible evidence before him.

And what do you call a judge who does not administer justice according to law? A renegade judge? So now you know why I am so vocal when I admonish the errant judges who did not apply unambiguous law as it stands.

Q: You have been especially blunt in your views over the issues in Perak. Why so?

A: You mean for calling a spade a spade? What do you call a judge who doesn't follow or apply easy to understand and unambiguous statute law as it stands?

Like Article 72(1) of the Federal Constitution which says: “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.

This law applies to all members of the legislative assembly — it does not matter if you are DAP or PKR or MCA or Barisan Nasional or any political party. Even a child could understand the plain meaning of the words. We do not need the Federal Court to interpret (meaning “explain the meaning of”) the words for us. Nor do we need any law professor from Singapore to tell us Malaysians that the courts should have the power of judicial review over what has transpired in Parliament or a Legislative Assembly.

There is separation of powers between the Legislature and the Judiciary of this country. We all know that one can apply to the courts for a judicial review over executive actions. But there is no such thing as judicial review over what transpired in the legislature — if there is such a thing then we can have judicial review over the passing into law of certain Acts of Parliament that we don't like — like the ISA.

A long time ago when I was a High Court judge, I have sentenced many criminals to death without qualms. But personally I am against the death sentence because it is barbaric. But as a judge I must apply the law as it is.

To quote Lord Denning: “It is their [the judges] duty to administer and apply the law of the land. If they should divert it or depart from it — and do so knowingly — they themselves would be guilty of a misuse of power.”

I would never dream of doing such a thing.

Q: Why did you choose to air your views so publicly? I'm trying to understand why you got involved.

A: I'm only an outsider and I don't care. But when everybody is missing the point and all that — and some of them have not even read the Perak Constitution, I thought I better explain why the people are angry.

Q: Why do you think the people are angry?

A: Do you know why the Perakians were up in uproar against the Sultan of Perak?

It's because, as any lawyer will tell you, especially as he was Lord President before, that before you make a decision, you cannot see the parties. If you want to meet any of the parties, both of them must be present. You never do so by seeing one and then making a decision. The moment you do that, to the losing side or to any observer will think you have been influenced. So it's the impression that counts.

They were angry with the Sultan because they can sense it in their bones that it is wrong to make a decision to see the other side first.

Q: Is the Sultan morally wrong or legally wrong?

A: If the Sultan had executive powers to rule, it is legally wrong, so they could apply for judicial review of the Sultan's decision. But I pointed out in my first article he has no executive power to rule because he is not an executive monarch, he is a constitutional monarch. What he did was morally wrong.

Q: You must have seen many things during your time as a judge. What is wrong with Malaysia’s justice system? What can be done to correct it? And what’s stopping the necessary changes from taking place?

A: I don't think there is anything wrong with our judicial system. It is the players that we should be concerned with — if we get the right people on the Bench, that is, those people who are not interested in power — because power corrupts, those fair-minded individuals who would administer justice according to law, then we will have a judiciary to be proud of.

We used to have that at one time. And if the general public think that the present crop of errant judges are not up to the mark, then the remedy is to use the power of the vote to change the present state of things.

At the general election of 1906 the common people of England toppled the Conservative Government of the day because they were unhappy with the decision of the House of Lords in the Taff Vale case which had virtually put an end to trade unions six years earlier.

That case had immense political consequences. At the general election of 1906 the opposition pledged complete immunity for trade unions.

Lord Denning said in his book “Landmarks in the Law”, page 121: “The result of the general election was like an earthquake. ... It was a sweeping victory for the trade unions. Parliament immediately passed the Trade Disputes Act 1906. It is probably the most important Act ever put into the Statute Book. It reversed all the judicial decisions against trade unions. The Taff Vale case was overruled. No trade union could thereafter be sued for damages for any wrongs done by its members. Its funds were unassailable.”

There is a well known Spanish proverb which says, “He who goes with wolves learns to howl.” So that if the electorate don't trust the judges they tend to put the blame on the government who put the judges there.

Q: Many ordinary Malaysians today feel powerless to affect positive changes to the institution of the judiciary because they lack legal knowledge. Do you agree with this view? How do you think they can work to bring about the change they want?

A: I think the real problem is this. In most cases when you read about a court decision in the newspapers, the judgment of the court is expressed in such a way that the average reader will not know if the judge is right. So invariably, we assume that the judge must be right.

I do realise the problem, so I thought I should try to explain the issue in simple language so that everyone will be able to judge for himself whether the judge is doing the right thing or not.

Lord Denning was famous for explaining difficult law in such a way that any lay reader can understand it. Now that they know how to judge the judges by reading my articles, they could, if they thought they have been short-changed by the judges, do the same thing as was done by the electorate in 1906 England. They have the power to change the government of the day by their vote in the next general election.

The opposition, in order to get the people's vote, could pledge to undo all the wrongs done to the community by the judges. They could pledge that if they were given the mandate of the people to form the next government, they would pass an Act of Parliament to overrule such unjust decisions of the Federal Court such as Adorna Properties vs Boonsorm Boonyanit, the Asean Security Mills, PP vs Datuk Seri Anwar Ibrahim as well as all the decisions of the Federal Court pertaining to the Perak constitutional crisis which were not decided according to law — where the court had blatantly refused to apply Article 72 of the Federal Constitution.

They could also pledge to remove the errant judges from office. This is how it could be done.

In “What Next in the Law”, Lord Denning said, page 319: “Parliament is supreme. Every law enacted by Parliament must be obeyed to the letter. No matter how unreasonable or unjust it may be, nevertheless, the judges have no option. They must apply the statute as it stands.”

Yet the errant judges, especially the five in the Federal Court, have refused to apply Article 72 of the Federal Constitution as it stands.

In his book, “The Judiciary in Malaysia” (Asia Pacific Publications Sdn Bhd, 1994) the then Chief Justice of Malaysia Tun Abdul Hamid Omar said, page 88: “... the provisions dealing with the removal of judges in pursuance of an address in Parliament … was modified to provide for a special tribunal to be established for the removal of judges.”

That is incorrect. Actually Article 125(3) of the Federal Constitution only applies to judges of the Federal Court.

At the time of the fracas between the then Lord President Tun Salleh Abbas and Prime Minister Datuk Seri Dr Mahathir Mohamad in 1988, Article 125(3) of the Federal Constitution provides for the removal of judges of the Federal Court on the ground of “misbehaviour or of inability”.

Article 125(3) and (4) reads:

“125(3) If the Prime Minister, or the Lord President after consulting the Prime Minister, represents to the Yang di-Pertuan Agong that a judge of the Federal Court ought to be removed on the ground of misbehaviour or on the ground of inability, from infirmity of body or mind or any other cause, properly to discharge the functions of his office, the Yang di-Pertuan Agong shall appoint a tribunal in accordance with Clause (4) and refer the representation to it; and may on the recommendation of the tribunal remove the judge from office.

“125(4) The said tribunal shall consist of not less than 5 persons who hold or have held office as a judge of the Federal Court, the Court of Appeal or a High Court or, if it appears to the Yang di-Pertuan Agong expedient to make such appointment, persons who hold or have held equivalent office in any other part of the Commonwealth, and shall be presided over by the member first in the following order, namely, the Chief Justice of the Federal Court, the President and the Chief Judges according to their precedence among themselves, and other members according to the order of their appointment to an office qualifying them for membership (the older coming before the younger of two members with appointments of the same date).”

The book “The Judiciary in Malaysia” said — this part is significant so do pay special attention to it — page 89: “Until the recent amendment in 1994, the grounds for the removal of a judge was 'misbehaviour or of inability', The Constitution (Amendment) Act 1994, however, substituted for the word 'misbehaviour', the words 'any breach of any provision of the code of ethics prescribed under Clause 3A...'. The effect of this amendment is that, besides the inability, either from infirmity of body or mind, or any other cause, properly to discharge the functions of his office, a judge may be removed if he has breached the code of ethics prescribed for judges.

“Article 125(3A) provides that the code of ethics shall be observed by every judge, be it, the judge of the Federal Court, the Court of Appeal or the High Court.”

This is what Section 2 of the Judges' Code of Ethics 1994 says:

“2(1) This Code of Ethics shall apply to a judge throughout the period of his service.

“2(2) The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.”

So now we all know that any serving judge could be removed from office for a breach of any provision of the Judges' Code of Ethics 1994.

Section 3(1)(d) is the provision in the Code of Ethics to apply against the errant judges. It reads: A judge shall not conduct himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto”.

I think the words in Section 3(1)(d) are clear enough — we all know what they mean. So that if a judge brings the judiciary into disrepute or discredit, as the errant judges have done by not administering justice according to law, they could be removed from office under this provision. It's a bit harsh, but it can be done.

Umno did not win, Sivakumar did not lose

By Hanipa Maidin
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

APRIL 19 – By now I believe many have heard ad nauseam Umno’s version of the true nature of the Federal Court’s decisions on April 16, 2009. This version proclaims that Datuk Zambry Abdul Kadir and his six exco members can now enter the Perak Assembly without any hassle.

Out of desperation, Umno may say anything except the truth. What are the core truths of the Federal Court’s decisions? Let us share the truths which have been conveniently buried by Umno.

The truth is that out of 10 court orders sought by Zambry and his six exco members, only two orders were granted by the Federal Court. I dare to say that these two orders are ineffective and inconsequential in nature. They are not, in any manner, capable of reining in the speaker’s power.

They merely declared that V. Sivakumar’s decisions on Feb 18, 2009 was null and void. I strongly believe that these orders will be met by the following response by Sivakumar: “So what”?

The truth is that the Federal Court did not grant the other eight orders prayed for by Zambry and his six exco members in their summons against Sivakumar. These eight orders have been hidden from the public knowledge.

The truth is that, despite the fact the court invalidated the decision of Sivakumar in suspending Zambry and his six exco members from attending the Assembly for a period of 18 months and 12 months, respectively, the Federal Court also at one fell swoop refused to grant a declaratory order allowing Zambry and the six exco members to attend and participate in all of the proceedings in the Assembly.

Without this crucial court’s order, one fails to understand the basis on which Zambry’s lawyers have formed an opinion that Zambry et al could enter the Assembly without any legal impediments blocking their entry.

The truth is that Umno miserably failed to state that the Federal Court also declined to grant an order declaring that the act of Sivakumar in suspending and prohibiting Zambry and his six exco members from attending the Assembly was contrary to law.

The truth is that the Federal Court rejected a declaratory relief which says that the Perak State Assembly was not bound by Sivakumar’s decision in suspending Zambry and his six exco members.

The truth is that, by not granting all the 10 orders sought by Zambry et al, the Federal Court implicitly acknowledged the doctrine of trias politica (the French term for separation of powers) that is the Speaker is still the final arbiter as far as the internal affairs of the State Legislative Assembly are concerned.

Whatever grouse we may have against the Federal Court judges, the fact that only two inconsequential orders were granted by the court demonstrates that the court still exercised “judicial self-restrain” in questioning any decision of the another branch of the government’s arms i.e the legislative body.

In the circumstances, the court deserves a bit of respect for at least exhibiting judicial minimalism when confronted with the issue of questioning the speaker’s powers.

The decision would, of course, be for the court to follow, thus creating certainty, the stare decisis (the past judicial precedents).

There are at least five judgments of the Malaysian courts, given by judges of impeccable integrity, which in unison held that any decision by the speaker or legislative body would not be amenable to judicial intervention.

The truth is that, notwithstanding Umno’s attempts to have the sitting under the tree declared invalid by the court, this too was also not entertained by the latter.

Thus no declaration has been made to date by the court that such a sitting was invalid. It follows therefore that the sitting was valid until proven otherwise.

The truth is that Nizar’s suit against Zambry has nothing to do with Zambry’s suit against Sivakumar. The two suits are poles apart.

Thus a suggestion by Umno’s lawyer, Datuk Hafarizam, that Nizar should consider withdrawing his suit against Zambry, was clearly a preposterous proposition unsupported by any legal foundation.

Lastly, the truth is that by filing the suit against the speaker, Zambry and his six exco members have allegedly infringed section 10 of the Legislative Assembly (Privileges) Enactment of Perak 1959 in that they had given evidence outside the Assembly in respect of the contents of documents laid before the Assembly or any committee without special leave of the Assembly.

Whether such an act by Zambry et al was tantamount to abuse of their privileges and whether such an abuse may attract a new sanction by the speaker remains to be seen.

Zambry dan enam ADUN BN tidak boleh hadiri sidang DUN Perak — Mohamed Hanipa Maidin

APRIL 18 — Saya sedar ramai yang ingin tahu kesan keputusan Mahkamah Persekutuan pada 16 April lalu yang memutuskan bahawa keputusan V.Sivakumar, Speaker Perak menggantung dan melarang Zambry dan enam Exconya hadir di DUN Perak selama 18 bulan dan 12 bulan adalah terbatal dan tak sah.

Ramai yang bertanya saya adakah keputusan tersebut bermakna Zambry dan enam exconya kini boleh menghadiri sidang DUN Perak?

Jika kita melihat kenyataan peguam Umno dan laporan akhbar pro-Umno seperti Utusan Malaysia (April 17) mereka dengan tidak bertanggungjawab menyatakan bahawa Zambry dan enam exconya kini dibenarkan menghadiri sidang DUN Perak yang mungkin akan diadakan dalam masa terdekat.

Sebagai salah seorang peguam yang terlibat dalam kes tersebut, saya menasihati rakyat agar tidak terkeliru dengan kenyataan peguam Umno dan laporan akhbar Umno tersebut. Banyak yang mereka sembunyikan dan tidak jelaskan tentang apa yang sebenarnya berlaku di Mahkamah Persekutuan pada tarikh tersebut.

Marilah kita mulakan dengan melihat apakah perintah-perintah yang dipohon oleh Zambry dan enam exconya di dalam saman yang mereka kemukakan ke atas Sivakumar di Mahkamah Tinggi dan kemudiannya didengar di Mahkamah Persekutuan.

Sebenarnya Zambry telah memohon sepuluh (10) perintah Mahkamah dan dari sepuluh perintah tersebut Mahkamah hanya membenarkan dua (2) perintah sahaja. Dua perintah yang dibenarkan oleh Mahkamah adalah seperti berikut:

Pertama, perintah membatalkan keputusan Sivakumar yang menggantung dan melarang Zambry hadir di DUN Perak selama 18 bulan.

Kedua, perintah membatalkan keputusan Sivakumar yang menggantung dan melarang enam exco Zambry untuk hadir di DUN Perak selama 12 bulan adalah terbatal dan tak sah.

Lapan permohonan Zambry tidak dilulus Mahkamah.

Itu sahaja dua perintah yang Mahkamah Persekutuan benarkan pada 16 April lalu. Tidak lebih dari itu. Apa sahaja kenyataan dari peguam Umno selain dari dua perintah tersebut bukanlah perintah Mahkamah sebaliknya adalah kenyataan mereka yang tidak berasas.

Memandangkan Mahkamah Persekutuan hanya membenarkan dua perintah di atas, adalah jelas Mahkamah tidak membenarkan lapan (8) perintah lain yang juga dipohon oleh Umno dan dihujahkan oleh para peguam Zambry dan pasukan peguam Sivakumar.

Apakah perintah-perintah yang dipohon oleh Zambry dan enam exconya tetapi tidak dibenarkan oleh Mahkamah Persekutuan? Mari sama-sama kita saksikan lapan perintah yang TIDAK DIBENARKAN tersebut.

Meskipun peguam Umno berhempas pulas dan bermati-matian berhujah, Mahkamah Persekutuan TIDAK MEMBENARKAN perintah-perintah berikut:

1. Perintah untuk Mahkamah mengisytiharkan bahawa keputusan Sivakumar (defendan pertama di dalam kes tersebut) menggantung dan melarang Plaintif Pertama (Zambry) menghadiri pada sidang DUN selama 18 bulan adalah ultra vires (bertentangan) dengan Undang-Undang Tubuh Negeri Perak, Perintah-Perintah Tetap Dewan Perhimpunan Undang Negeri Perak (standing orders) dan Enakmen Dewan Perhimpunan Undangan (Keistimewaan) 1959 dan/atau undang-undang yang berkaitan dan oleh itu adalah terbatal dan tak sah.

2. Perintah untuk Mahkamah mengisytiharkan bahawa perbuatan Sivakumar menggantung dan melarang Zambry menghadiri sidang DUN selama 18 bulan adalah menyalahi undang-undang.

3. Perintah untuk Mahkamah mengisytiharkan bahawa keputusan Sivakumar menggantung dan melarang Plaintif ke-2 hingga Plaintif ke-7 (enam Exco) menghadiri sidang DUN selama 12 bulan adalah ultra vires (bertentangan) dengan Undang-Undang Tubuh Negeri Perak, Perintah-Perintah Tetap Dewan Perhimpunan Undang Negeri Perak (standing orders) dan Enakmen Dewan Perhimpunan Undangan (Keistimewaan) 1959 dan/atau undang-undang yang berkaitan dan oleh itu adalah terbatal dan tak sah.

4. Perintah untuk Mahkamah mengisytiharkan bahawa perbuatan Sivakumar menggantung dan melarang enam Exco menghadiri sidang DUN selama 12 bulan adalah menyalahi undang-undang.

5. Perintah untuk Mahkamah mengisytiharkan bahawa Zambry dan enam Exconya adalah berhak menghadiri dan mengambil bahagian dalam semua sidang DUN dan menjalankan segala fungsi dan kewajipan mereka di dalamnya.

6. Perintah untuk Mahkamah mengisytiharkan bahawa DUN Perak adalah tidak terikat dengan keputusan Sivakumar menggantung dan melarang Zambry dan enam Exconya menghadiri sidang DUN Perak.

7. Perintah untuk mengisytiharkan bahawa DUN Perak adalah tidak terikat dengan apa-apa arahan, perintah dan/atau petunjuk Sivakumar yang berbangkit daripada atau berhubung dengan keputusan Sivakumar yang bertarikh 18 Februari, 2009.

8. Perintah-perintah, perisytiharan dan/atau relif lain yang difikir suaimanfaat oleh Mahkamah.

Sekali lagi saya ingin tegaskan di sini bahawa lapan perintah di atas yang Zambry dan enam exconya pohon TIDAK DIBENARKAN oleh Mahkamah Persekutuan.

Atas dasar itu jika peguam Umno atau akhbar pro-Umno mengatakan bahawa Zambry dan enam exconya boleh menghadiri sidang DUN Perak, jelas kenyataan itu bukan datang dari mana-mana perintah Mahkamah sebaliknya ianya hanya kenyataan tidak berasas dari peguam Umno dan akhbar mereka.

Kenyataan tersebut tidak mempunyai apa-apa nilai di sisi undang-undang. Rakyat tidak perlu melayan kata-kata mereka yang dibuai khayalan tersebut.

Bagaimanakah Umno boleh mengatakan keputusan tersebut bermakna Zambry dan enam Exconya boleh menghadiri sidang DUN Perak sedangkan Mahkamah dengan secara jelas tidak membenarkan perintah yang mereka pohon iaitu perintah bahawa Zambry dan enam exconya adalah berhak menghadiri dan mengambil bahagian dalam semua sidang DUN dan menjalankan segala fungsi dan kewajipan mereka dalamnya.

Kalau perintah tersebut dibenarkan oleh Mahkamah Persekutuan barulah mereka boleh mengatakan Zambry dan enam exconya boleh ke sidang DUN Perak.

Saya harap penjelasan di atas sedikit sebanyak dapat menjelaskan bahawa apa yang Umno kata di media massa adalah tidak menggambarkan apa yang sebenarnya berlaku.

Sivakumar masih Speaker dan beliau masih berbisa. Jika Umno terus mengeluarkan kenyataan mengelirukan tidak mustahil mereka mungkin akan dipatuk oleh Sivakumar dan saya percaya patukan selepas ini akan membuat Umno menderita lebih panjang.

Saya juga ingin tegaskan di sini apabila Zambry dan enam exconya membawa kes mereka di Mahkamah dengan mencabar keputusan Sivakumar sebagai Speaker yang sah, mereka mungkin tidak sedar bahawa mereka sedang melakukan satu kesalahan kerana mendedahkan dokumen-dokumen rasmi DUN Perak tanpa mendapat kebenaran terlebih dahulu dari Sivakumar sebagai Speaker.

Marilah kita sama-sama tunggu dan lihat apakah yang berlaku selepas ini. — Harakahdaily.net

When the highest court in the land could bring down the Government of the day

The judges of the Federal Court have failed the people and the government of this country when they chose to ignore the law of the Constitution of Malaysia. In other words the judges have refused to do justice according to law - N. H. CHAN Justice N.H. Chan is a retired judge from the Court of Appeals. The front page of the Star newspaper of Friday, 17 April 2009 carries this startlingly outrageous decision of the Federal Court. The headline proclaims “Court: Siva does not have right to suspend seven”. The report reads: PUTRAJAYA: The Federal Court has unanimously ruled that Perak Assembly Speaker V Sivakumar does not have the power to suspend Mentri Besar Datuk Zambry Abd Kadir and six state executive council members from attending the assembly. It granted a declaration that the seven assemblymen were entitled to take part in all the assembly sittings and to carry out their duties. Court of Appeal president Justice Alauddin Mohd Sheriff, who chaired a five-man panel yesterday, said the Speaker’s decision to suspend the seven applicants was ultra vires (outside the law) and invalid. … The other judges were Chief Judge of Malaya Arifin Zakaria and Federal Court Judges Nik Hashim Nik Ab. Rahman, S Augustine Paul and Zulkefli Ahmad Makinudin. This is a perverse judgement of the Federal Court. It is perverse because it is a decision that was made in blatant defiance of Article 72 (1) of the Federal Constitution which says,”The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”. The judges of the Federal Court have failed the people and the government of this country when they chose to ignore the law of the Constitution of Malaysia. In other words the judges have refused to do justice according to law. Incidentally, ultra vires does not mean “outside the law”. It means “outside one’s jurisdiction, beyond the scope of one s power or authority”. And we may ask, who is the Federal Court to say what is beyond the jurisdiction of the Speaker when the supreme law of the country says that “the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”. Don’t these judges realize that they have actually done a disservice to the Government of the day? Perhaps they have never heard of the Taff Vale case. In 1900 the English House of Lords, which as you know is the highest court in the land just as our Federal Court is the highest court in this country, handed down an outrageous decision which was unpopular to the common people of England. The judges of the House of Lords by their judgment had unwittingly done a great disservice to the Conservative Government of the day because in the general election of 1906 it was toppled by a landslide. The case which was the cause of the fall of the Conservative Government by a landslide was Taff Vale Rly Co v Amalgamated Society of Railway Servants [1901] 1 QB 170, [1901] AC 426, HL. It is best that I let Lord Denning take up the story from his book Landmarks in the Law, Butterworths, London, 1984, pp 119-121: There was the great Taff Vale case. To understand it, you must know that the trade unions were virtually friendly societies. The members paid their subscriptions into a fund out of which benefits could be paid to members if they were ill or out of employment. Now in the Taff Vale case the railwaymen’s union called a strike at the railway station at Cardiff. The men left work and set up peaceful pickets so as to persuade others not to go to work. The trains could not run, and the company lost money. The railway were advised to bring an action against the union itself, seeking an injunction and damages. The Court of Appeal threw out the action. But the House of Lords, in a startling judgment, overruled the Court of Appeal. They issued an interlocutory injunction against the trade union itself, restraining it from setting up the pickets, and said that the railway company could recover damages which could be enforced against trade union funds. Later, at the trial itself, the damages were assessed at £23,000 and that sum was paid out of the funds of the trade union. £23,000 in 1900. What would that be now? In the eyes of trade unions, that was an outrageous decision. It meant that the railway company could take all the funds subscribed by the members so as to meet the damages. It meant that, in future, a trade union could never call a strike, else it would be in peril of losing all its funds. It meant virtually the end of trade unions. As G.M. Trevelyan says in his History: ‘It struck at the very heart of trade union action’. That case had immense political consequences. At the general election of 1906 there came into being a new political party. It was the Labour party. They ran a host of candidates themselves. They pledged complete immunity for trade unions. Many of the Liberal candidates gave the same pledge. The result of the general election was like an earthquake. Liberals had 397 seats. The new Labour party had 50 seats. The Conservatives only 157. It was a sweeping victory for the trade unions. Parliament immediately passed the Trade Disputes Act 1906. It is probably the most important Act ever put into the Statute Book. It reversed all the judicial decisions against trade unions. The Taff Vale case was overruled. No trade union could there after be sued for damages for any wrongs done by its members. Its funds were unassailable.” I think the message of the Taff Vale case to our judges of the Federal Court should be clear enough. The electorate may decide, just as the voters did in 1906 England to the Conservative Government, to use the power of their vote to unseat the BN government in the next by-election or general election because they do not trust the judges. Poor Najib our new Prime Minister, it is the judges who have let him down. Unfortunately it would be the Prime Minister who has to carry the baby, but not the irresponsible judges who did all the damage by not administering justice according to law. To all those judges who think they are above the law, I would suggest that they pay careful attention to the warning by Lord Denning M.R. in Gouriet v. Union of Post Office Workers [1977] 1 Q.B. 729, 761-762: To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: “Be you never so high, the law is above you” And the law, in the present context, is the Federal Constitution, in particular, Article 72 which states: 72. (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. Suppose the Speaker Sivakumar were to ignore the declarative decree of the Federal Court, what then? Clause (2) of Article 72 of the Federal 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 any State or of any committee thereof”. The Federal Court can say anything they like but the Speaker is not 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. The order of the Federal Court seems to me to be a brutum fulmen which in Latin means “ineffectual thunderbolt; (action which is) loud but ineffective”. It reminds me of the words of Horace: Parturient montes, nascetur ridiculus mus which in Latin means “Mountains will be in labour, the birth will be a single laughable mouse”. The errant judges of the Federal Court should heed the warning of the late Lord Denning, What Next in the Law, Butterworths, London, 1982, p 330: May not the judges themselves sometimes abuse or misuse their power? It is their duty to administer and apply the law of the land. If they should divert it or depart from it a - and do so knowingly - they themselves would be guilty of a misuse of power. And he posed this question: Suppose a future Prime Minister should seek to pack the Bench with judges of his own extreme political colour. Would they be tools in his hand? --loyarburok.com

When justice is not administered according to law

by N.H.Chan

The story unfolds with the application of three turncoat members of the Perak legislative assembly for a declaration that Speaker Sivakumar’s order, which was made in the legislative assembly, that their seats in the assembly have become vacant because they have resigned was illegal. Here is the report from the Sun newspaper, Thursday April 2 2009:

IPOH: The High Court yesterday dismissed the application by Perak State Assembly Speaker V Sivakumar to strike out an original summons brought by the three independent assemblymen, seeking a declaration that Sivakumar’s order to declare their assembly seats vacant was illegal.

Justice Datuk Balia Yusuf Wahi set April 8 to hear the suit by the assemblymen Mohd Osman Mohd Jailu (Changkat Jering), Jamaluddin Mohd Radzi (Behrang) and Hee Yit Foong (Jelapang) against the speaker.

He also dismissed an application by three former Pakatan Rakyat state executive Councillors . . . and three registered voters to intervene in the case, ruling that they are not interested parties as claimed.

Sivakumar had declared the three state seats vacant based on their pre-dated resignation letters as the three assemblymen were formerly from the ruling coalition. Their resignation from their parties caused the balance of power to shift to Barisan Nasional.

Sivakumar had informed the Election Commission (EC) to call for fresh elections for these three seats but the EC declined and said the seats were not vacant. The three assemblymen then referred their suit to the High Court here for a ruling that they had not vacated their seats as declared by Sivakumar.

I don’t have to tell you how to judge the judge. You must know by now how to do it if you have read my articles in the internet. You will know he is a bad judge if he behaves unfairly to one side as against the other. It is your perception as a member of the public that matters and not what the judge thinks of himself. A judge who does not appear to be fair is useless to the judicial process. As such he is a bad judge and is therefore unfit to sit on the bench. The other essential qualification of a judge is to administer justice according to law. That said, we can now judge this judge.

Article 72, Clause (1) ofthe Federal Constitution clearly states:

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

Yet Mr Justice Balia Yusuf Wahi, who knew that the Speaker’s order which was made in the legislative assembly was a proceeding in the Legislative Assembly, dismissed the Speaker’s application to strike out the summons of the three turncoat assemblymen who were asking the court to question the validity of what the Speaker had done in the assembly. As you know what the Speaker did in the assembly, rightly or wrongly, is not to be questioned in any court. Isn’t what the judge had done by dismissing the Speaker’s application to strike out the turncoats’ summons, not administering justice according to law? The judge had gone against the Constitution of Malaysia which is the supreme law of the land. What do you call a judge who has defied the law of the land? A renegade judge?

There is another thing. Why did the judge dismiss the application of the three voters from the Behrang, Changkat Jering and Jelapang constituencies, who claimed that their rights were affected because they had voted for the DAP and PKR? They were not allowed to intervene because they were not interested parties ruled the judge. Why are they not interested parties? The voters have voted for them as their representatives in the legislative assembly because they were DAP and PKR candidates. Now the turncoats have reneged on the arrangement on which they have stood for election on a DAP or PKR ticket. Such an arrangement has formed the basis of an underlying assumption on which they have conducted the dealings between them. Therfore,they would not be allowed to go back on that assumption when it would be unfair or unjust to allow them to do so. In other words, it would be unfair or unjust to allow them to say that they are no longer DAP or PKR members but are independent members of the assembly. The authority for what I have just said is so well known that I am surprised the judge had chosen to ignore it. The ease is Boustead Trading (1985) Sdn Bhd v. Arab- Malaysian Merchant Bank Bhd [1995] 3 M.L.J. 331, F.C., where Gopal Sri Ram JCA sitting in the Federal Court gave the judgment of the Court. He said, p. 344:

The time has come for this court to recognize that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless.

And at p. 345, he went on to say:

The width of the doctrine has been summed up by Lord Denning in the Amalgamated Investment case ([1982] 1 Q.B. 84 at p. 122; [1981] 3 All E.R. 577 at p. 584; [1981] 3 W.L.R. 565 at p. 575) as follows:

“The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption - either of fact or of law - whether due to misrepresentation or mistake makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.” (Emphasis added)

So the judge Balia Yusuf Wahi had wrongly ruled that the three voters were not interested parties. The voters’ interest in the matter is that they have a right to insist on the persons whom they have voted to be their elected DAP or PKR representatives not to change sides by switching to the other political coalition Barisan Nasional. “When the parties to a transaction proceed on the basis of an underlying assumption on which they have conducted the dealings between them neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands”

We know that the judge had adjourned the hearing of the suit by the turncoat assemblymen to April 8. But to our amazement we were told by the newspaper that the turncoats have also made two applications to the Federal Court on Friday, that was Friday April 3, for two declarations, viz:

Whether, on a true interpretation of article 36(5) of the Laws of Perak Darul Ridzuan (Perak Constitution) read together with section 12(3) ofthe Election Act 1958, the Election Commission is the rightful entity which establishes if there is a casual vacancy of the state legislative assembly seat. When a resignation of a member of the Perak state legislative assembly is disputed, is such resignation within the meaning as ascribed under article 35 of the Perak Constitution.

If they have applied to the Federal Court for a determination, then it is only proper to inform the High Court and the other side about it. So that what is pending in the High Court could be adjourned until the Federal Court has decided on the questions that have been referred to it.

Then on Friday, April 10, 2009 the New Straits Times carries this report:

PUTRAJAYA: The Federal Court has declared that three assemblymen who quit their parties are still members of the Perak state legislature.

This follows an unanimous ruling by a five-men bench yesterday which ruled that the Election Commission had the authority to declare a seat vacant.

“The Election Commission is the rightful entity to establish if there was a casual vacancy in the Perak state legislature,” said Federal Court judge Tan Sri Alauddlin Mohd Sheriff.

Sitting with him were Datuk Arifin Zakaria, Datuk Nik Hashim Nik Abdul Rahman, Datuk Seri S Augustine Paul and Datuk James Foong.

Last month, Parti Keadilan Rakyat’s Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Jailu (Changkat Jering), together with DAP’s Hee Ylt Foong (Jelapang), filed an urgent application for the Federal Court to decide their matter.

The three wanted a declaration whether it was the Election Commission or the Perak Speaker (V Sivakumar) had the final say in determining a vacancy.

In February, Sivakumar, using resignation letters signed by the three, had declared the seats vacant.

He informed the Election Commission, but the commission refused to hold by-elections on the ground that there was ambiguity over whether the assemblymen had resigned voluntarily.

Was the Federal Court right? Before you can judge the judges of the highest court in the country, it is necessary for me to apprise you of the law applicable which is found in the Constitution of Perak. Thus:

The heading of Article XXXI of the Perak constitution reads:

Disqualification for membership of Legislative Assembly

XXXI. (1) Subject to the provisions of this Article, a person is disqualified for being a member of the Legislative Assembly if -
(a) [he is of unsound mind]; (I have summarised the paragraph)
(b) he is an undischarged bankrupt;
(c) he holds office of profit;
(d) [he has failed to lodge any return of eleetion expenses within time] (I
have summarised the paragraph)
(e) [he has been convicted of an offence and sentenced to imprisonment of not less than one year or to a fine of not less than RM2,000] (I have summarised the paragraph)
(f) [disqualification involving election offences] (I have summarised the paragraph)
(g) [he has acquired the citizenship of another country] (I have summarised the paragraph) (2) [The disqualification ofa person under paragraphs (d) or (e) above may be removed by the Sultan or ceased at the end of five years] (This is a summary)
(3) . . .
(4) . . .
(5) A person who resigns his membership of the Legislative Assembly of this State or any other State shall, for a period of five years beginning with the date on which his resignation takes effect be disqualified from being a member of the Legislative Assembly of this State.

So that it is clear to all of us that Article XXXI, Clause (5) says that an assemblyman who resigns is disqualified from being a member of the Assembly for a period of five years from the date of his resignation.

And Article XXXIII, Clause (1) says:

XXXIII.(1) If any question arises whether a member of the Legislative Assembly has become disqualified for membership, the decision of the Assembly shall be taken and shall be final.

This means that whether a person is disqualified for membership of the Assembly is the decision of the Assembly. So that when a person has resigned he is disqualified from being a member of the assembly for five years from the date his resignation takes effect.

You may want to know how an assemblyman can resign. Article XXXV states:

XXXV. A member of the Legislative Assembly may resign his membership by writing under his hand addressed to the Speaker.

So that a member can resign simply by writing to the Speaker. But whether the letter itself amounts to a resignation, as a resignation would disqualify him for membership of the assembly, is for the Assembly to decide. Article XXXIII, clause (1) says that the decision of the Assembly shall be taken on the disqualification if any question arises on it, which in the present context is the effectiveness of the letter of resignation. And the decision of the Assembly is to be final.

The above is simple enough for all of us to understand. But then, all of us are wondering how on earth the Federal Court could have decided that “The Election Commission is the rightful entity to establish if there was a casual vacancy in the Perak state legislature”? Don’t you all feel superior to the judges of the Federal Court because you know the correct answer whilst the highest court gave a wrong decision. So you see, when you know how to judge the judges you would be able to separate the wheat from the chaff from among our judges. The chaff, you will discover, may not be up to your expectations.

What really happened was that with their myopic reading of the Perak constitution they pick on Clause (5) of Article XXXVI and say that is the correct answer. This is what Article XXXVI, Clause (5) says - the article starts with the heading:

Summoning, prorogation and dissolution of Legislative Assembly
XXXVI. (5) A casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy.

A casual vacancy means an occasional vacancy which can be filled simply with a by-election. But the question whether the turncoat assemblyman have resigned or not will have to await the outcome of the decision of the Assembly which decision shall be final: see Article XXXIII, Clause (1). It is only upon receiving the decision of the Legislative Assembly will the Election Commission be able to establish that there is a vacancy. As it turns out the Federal Court have put the cart before the horse - in this case, just the cart without the horse - which is that the court has held that it is for the Commission to establish that there is a casual vacancy without waiting for the decision of the Assembly whether the three turncoat assemblymen have been disqualified for membership of the Assembly by resignation.

Altantuya murder: It's death for Azilah and Sirul

SHAH ALAM: Chief Inspector Azilah Hadri,32, and Corporal Sirul Azhar Umar, 36, were found guilty and sentenced to death for the murder of Mongolian national Altantuya Shaariibuu three years ago, wrapping up the country's longest trial ever.

Justice Datuk Mohd Zaki Md Yasin, said the prosecution had proven the case against them beyond reasonable doubt.

He said their defences were essentially ones of denial and of blaming each other and as such, were irreconcilable and unbelievable.

"Thus they have failed to raise any reasonable doubt in the prosecution's case which I find to be irresistibly conclusive on account of the physical and circumstantial evidence adduced before me.

"I therefore now sentence you, Azilah and Sirul Azhar, to death and both of you will henceforth be kept in lawful custody until you are brought to a lawful place where you will be hung by the neck until you are dead," he said.

The defense counsels said they would appeal.

Azilah, 33, is represented by two counsels, Datuk Hazman Ahmad and J. Kuldeep Kumar while Sirul Azhar, 37, is represented by Kamarul Hisham Kamaruddin, Hasnal Redzua Marican and Ahmad Zaidi Zainal.

In the high profile trial that hogged the local and international media, the duo were charged with murdering Altantuya, who was 28 then, between Lot 12843 and Lot 16735 Mukim Bukit Raja near here, between 10 pm, Oct 19 and 1 am, Oct 20, 2006.

Initially they were tried together with the executive director of Malaysian Strategic Research Centre (MSRC), Abdul Razak Abdullah Baginda, 48, who was charged with abetment in the murder of Altantuya.

However on Oct 31, 2008, the political analyst walked out a free man after the court found that the prosecution had failed to furnish proof on an important element on the abetment charge.

Abdul Razak since has left to United Kingdom and is said to be taking up a PhD at Oxford University.

While Azilah and Sirul Azhar -- who pleaded not guilty -- were hoping to be released, the prosecution went all out to prove they were the ones behind Altantuya's murder and the disposal of her remains using explosives.

The prosecution team consisting of Deputy Public Prosecutor Tun Abdul Majid Tun Hamzah, Noorin Badaruddin, Manoj Kurup and Hanim Rashid, stressed in their submissions that Azilah and Sirul Azhar were the people behind Altantuya's murder.

Based on the evidence gathered from prosecution witnesses, the explosive used to blow up Altantuya's body was probably placed in her mouth.

Manoj noted at the end of the prosecution's case that both accused had the motive to kill and it was a preplanned crime.

Manoj noted that several circumstantial pieces of evidence that the prosecution tried to prove were never denied, explained or answered by both defendants.

"Several of the strong evidence deduced from the testimonies when spun together will make two ropes that are strong enough to hang each one of them.

"The prosecution has proven beyond reasonable doubt on the actions of the duo calls for their conviction on the murder carried out with the common intention," he had said.

Azilah, who started his testimony on Jan 15, stated that he had no motive to kill or destroy the woman and instead he only met Altantuya to advise her politely not to harass Abdul Razak or create a ruckus outside the latter's home.

Azilah also told the court that he was ordered by a superior, DSP Musa Safri to help Abdul Razak and thus he would not have done something stupid like killing -- especially seeing he was a policeman.

While defending himself Sirul Azhar broke down a few times and claimed he had been made the sacrificial lamb in the murder.

The case has set many records including being the most number of days for hearing (159 days) and 84 witnesses at the prosecution stage and two at the defence stage, and it remained the high profile case for almost two years before Abdul Razak was released.

According to records, Azilah has been incarcerated at the Sungai Buloh Prison for 891 days while Sirul Azhar 895 days.