Article 72, Clause (1) of the Federal Constitution clearly states: The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.
Politikus
72. (1) The validity of any proceedings in the Legislative Assembly of
any State shall not be questioned in any court.
=====
When justice is not administered according to law — N.H. Chan
(Justice N.H. Chan was a former Court of Appeal judge.)
See http://www.themalaysianinsider.com/index.php/opinion/breaking-views/23485-when-justice-is-not-administered-according-to-law--nh-chan
APRIL 16 — The story unfolds with the application of three turncoat
members of the Perak Legislative Assembly for a declaration that
Speaker V. 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 theSun
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) of the 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. Therefore, 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 case is Boustead Trading (1985) Sdn Bhd
v. Arab-Malaysian Merchant Bank Bhd [1995] 3 M.LJ. 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 -
nether 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) of the 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, 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 Alauddin Mohd Sheriff. Sitting with him were Datuk
Arifin Zakaria, Datuk Nik Hashim Nik Abdul Rahman, Datuk Sen 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 Hew Yit
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 appraise 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 election 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 of a 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 “(t)he 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 has 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. —
loyarburok.com
Justice N.H. Chan was a former Court of Appeal judge.