Against the Opposition Parties
The BOSS of High Court Judge Azahar Mohamed
Read here for more in Malaysiakini
The Ipoh High Court today struck out with costs the suit by Perak Pakatan Rakyat legislative assembly speaker V Sivakumar against BN speaker R Ganesan, seeking damages for assault and battery and wrongful detention, as well as aggravated damages.
(Note: Judge Azahar Mohamed was appointed Judicial Commissioner on 1 August 2004. and as High Court Judge on 21 December 2004.)
Selective Application of the Law in the Perak Constitutional Crisis by the Court
(Read here article by Kim Quek on the Judge Azhar 's ruling)
Judge Azahar Mohamed said the court could NOT interfere with what had been decided by the Perak assemblymen at their sitting on May 7 in accordance with Article 72 (1) of the Federal Constitution, "which states that the validity of any proceeding in any state legislative assembly cannot be questioned in any court".
He said any matter arising with regard to the dismissal or appointment of the speaker at the assembly sitting should be examined, discussed and resolved in the assembly and not in court.
Azahar said in his judgment which he read out in court:
"The Perak Legislative Assembly has an exclusive jurisdiction over the matter.The judge Azahar said he therefore had no other choice but to dismiss the plaintiff's application with costs.
To me as far as this court is concerned, the decision of the legislative assembly on May 7, 2009 to remove the plaintiff as speaker and to appoint the defendant was conclusive and had been fairly determined by the state assembly on May 7, 2009.
"To question the validity of the removal and appointment is to question the validity of the constitution. This cannot be done in virtue of Article 72," Azahar said in his judgment which he read out in court."
Sivakumar in his writ of summons filed through Messrs Chan & Associates at the High Court registrar's office here on May 15, had also applied for an injunction to prevent the defendant or his workers or agents from denying him entry into the assembly, or to prevent or restrict him in whatever manner from holding the post or from carrying put his duties as the legitimate assembly speaker.
Sivakumar had also applied for an injunction to prevent any further abuse, attack or assault by the defendant or his workers or agents.
In is statement of claims, Sivakumar stated that he was still the Tronoh assemblyman and Perak legislative assembly speaker.
He claimed that the defendant was not elected as an assemblyman and hence his presence at any assembly sitting was an insult to the House.
Dragged and Ejected from the House
Sivakumar also claimed that about 2pm on May 7, while he was chairing the assembly sitting at the Perak Darul Ridzuan building as the legitimate speaker, the defendant's workers or agents had forcefully held, then dragged and ejected him from the assembly hall on the defendant's order.
(Image courtesy of Malaysiakini)
Speaker Sivakumar forcefully dragged out of his chair in the Perak State
Assembly by the police in plain clothes
He claimed that in his forced absence, the defendant had illegally assumed the post of speaker, sat on the speaker's chair and wore the speaker's robe.
Sivakumar was represented by lawyers Chan Kok Keong and Leong Cheok Keng, and Ganesan by Firoz Hussein Ahmad Jamaluddin who was assisted by Hafarizam Harun, Abu Bakar As Sidek, Cheng Mai, Badrulhishah Abdul Wahab, Faizul Hilmy Ahmad Zamri and Syed Faisal Syed Abdullah.
Judge Azahar Mohamed Slapped His Own Face
Read here for more in Malaysiakini
THE DOUBLE STANDARDS IN AZAHAR'S JUDGEMENT
A tragic yet hilarious court proceeding took place in the Ipoh High Court on Sept 8 when the judge blatantly contradicted himself in dismissing a suit brought by Perak's Pakatan Rakyat speaker against the state's Barisan Nasional speaker (yes, two speakers in the Perak assembly).
Judge Azahar Mohamed rejected V Sivakumar's suit to seek damages from R Ganesan for assault and false imprisonment during the chaotic and violent state assembly sitting on May 7.
He said the court had no jurisdiction to hear the case due to Federal Constitution Article 72 stipulating that "the validity of any proceeding in any state assembly CANNOT be questioned in any court".
And yet in the same breath he declared that "the decision of the legislative assembly to remove the plaintiff as speaker and to appoint the defendant was conclusive and had been fairly determined by the state assembly on May 7, 2009."
Now, the crux of the entire contention between the two speakers is: Who is on the right side of law in the violent tussle for the speaker's chair on May 7?
JUDGE AZAHAR'S INCOMPETENCE OR UNDER INSTRUCTION FROM HIS BOSS
By declaring Ganesan as the rightful speaker, Judge Azahar is in fact making a LEGAL judgment. Is that not a breach of Article 72?
How come he has no jurisdiction to hear Sivakumar's grievances but has jurisdiction to judge Ganesan as legal speaker?
Is that not a contradiction of the highest order?
Apart from this atrocious double standard applied by the judge, the main flaw of the judgment is the INABILITY to differentiate between assembly proceeding and criminal behaviour.
What Sivakumar is seeking is redress for the unlawful physical violence inflicted on him.
And Article 72 covers only businesses conducted in the assembly - not unlawful and criminal act.
Judge Azahar has therefore WRONGLY used Article 72 to come to his judgment.To make it very clear that this is the case, I will quote in full the relevant clauses in Article 72 (Clauses 1 & 2) and explain the reasons why.
- Clause 1: The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.
- Clause 2: No body shall be liable to any proceedings in any court in respect of anything said or vote given by him when taking part in proceedings of the Legislative Assembly of any State or of any committee thereof.
Note the operative words "proceedings" in Clause 1 and "anything said or any vote given" in Clause 2. It is abundantly clear what Article 72 refers to are the speeches and resolutions made in the assembly, NOT any criminal or unlawful act.
Tragedy and comedy
But what happened on May 7 was complete pandemonium and chaos in the assembly hall. There was no chance to conduct any business at all, least of all any resolution passed. In fact, the only business done on that day was the address by the Perak Regent Raja Nazrin Shah.
And how was Sivakumar "replaced" by Ganesan during that pandemonium?
While Sivakumar was sitting in the speaker's chair, hordes of police personnel entered the assembly hall, allegedly on Ganesan's order, and physically lifted, carried, dragged and moved speaker Sivakumar into a room where he was forcibly detained until the assembly sitting was over.
And as soon as Sivakumar was removed from the hall, police personnel escorted Ganesan into the hall and ushered him to the speakers chair, with police personnel making a line to stand guard in front of Ganesan to prevent any assemblymen from reaching the speaker's chair.
The entire tragedy-comedy was stage-managed by the police, and it is therefore more appropriate to say that while Sivakumar was elected by the assembly through a resolution, Ganesan was physically planted into the speaker's chair by the police. And that about sums up what happened on that tragic-hilarious day.
And since Judge Azahar appears to be so respectful of the constitutional principle of separation of power as demonstrated by his professed adherence to Article 72, is it not puzzling that he should have chosen to ignore completely the heinous violation of the doctrine of separation of power when hordes of police personnel invaded the assembly to physically replace one speaker with another?
Is it not another shining example of double standard in the Malaysia Boleh tradition?After the series of judicial decisions that appear to wantonly trample the constitution and the law following the shameful power grab in Perak, the latest low represented by Azahar's decision makes us wonder how much lower our judiciary can sink into, as many more judicial decisions in the same series are still pending.
A Clever, Conveniently Contradictory and Convoluted Judgment
Read here for more
The Perak constitutional crisis has revealed a judiciary, the chief guardian of the Constitution, willing to compromise justice by ignoring the Federal Constitution and interfering in the proceedings of a state assembly.
It continues to deliver, in cases related to the Perak constitutional crisis, what former and retired Court of Appeal judge N H Chan describes as “bad” and “perverse” judgments.
Even when the judiciary chooses to interpret the Federal Constitution correctly, it does so when it is politically expedient and best suits the BN (also read as Umno).
There is no better example of this “selective application” than the recent Ipoh High Court ruling that it had NO jurisdiction to hear the proceedings of the Perak legislative assembly.
Dumb High Court Judge Than This One !
High Court Judge
Ipoh High Court Judge Azahar Mohamed ruled that the court could NOT interfere with what had been decided by the Perak assemblymen at their sitting on May 7 in accordance with Article 72 (1) of the Federal Constitution. He said any matter arising with regard to the dismissal or appointment of the speaker at the assembly sitting should be examined, discussed and resolved in the assembly and NOT in court.
Alas, if only his colleagues in the Ipoh High Court, the Court of Appeal and the Federal Court who made decisions contrary to this, were as equally enlightened.
Just after declaring that the court “has no jurisdiction on the validity of the assembly proceedings and only the legislative assembly can decide on the legality of the two speakers", Justice Azahar added that “the decision of the legislative assembly on May 7, 2009 to remove the plaintiff as speaker and to appoint the defendant was conclusive and had been fairly determined by the state assembly on May 7, 2009”!
The judge conveniently contradicted himself.
What was on the surface a bold ruling (a brave departure from the erroneous decisions of his colleagues) was in reality convoluted bias – a conclusion most unfair to Speaker Sivakumar.
Azahar was making a LEGAL JUDGMENT . He was interfering in the legislative proceedings by inferring that Ganesan was the rightful speaker. The judge was guilty of breaching Article 72!
The judge’s portrayed bold front followed by his blatant and befuddling contradiction left Speaker Sivakumar bewildered:
"I had filed the two court cases against Zambry and his six executive councillors, and another against the three frogs (independent assemblypersons who left Pakatan to support BN which saw the collapse of the Pakatan state government in February this year).
“On both occasions, I had cited Article 72 of the Federal constitution to argue my case to which their defence lawyers had objected, and the courts ruled in their favour. Now the same article is used against me and the court has recognised the immunity of assembly proceedings from court jurisdiction. I'm very confused by the court's decision” (Malaysiakini).
Well-known and respected Malaysiakini columnist Kim Quek offers an interesting perspective to the judicial circus of the Ipoh High Court. He says that
“(a)part from this atrocious double standard applied by the judge, the main flaw of the judgment is the inability to differentiate between assembly proceeding and criminal behaviour.”Kim Quek rightly concludes that from the operative words "proceedings" in Clause 1 (of the Article) and
“What Sivakumar is seeking is redress for the unlawful physical violence inflicted on him. And Article 72 covers only businesses conducted in the assembly - not unlawful and criminal act.”
"..anything said or any vote given" in Clause 2, it is abundantly clear what Article 72 refers to are the speeches and resolutions made in the assembly, not any criminal or unlawful act.It is very evident that Justice Azahar had made use of Article 72 to strike out Sivakumar’s suit and as justification to declare Ganeson the rightful MB.
“But what happened on May 7 was complete pandemonium and chaos in the assembly hall. There was no chance to conduct any business at all, least of all any resolution passed.
In fact, the only business done on that day was the address by the Perak Regent Raja Nazrin Shah…Judge Azahar has therefore wrongly used Article 72 to come to his judgment.”
If the judge was truly convinced and committed to the adherence of Article 72 he would NOT have legitimized the position of Ganesan – for the manner by which the latter was installed Speaker was a clear violation of the doctrine of separation of power.
A horde of policemen had trespassed into the State Assembly. They had forcibly dragged out Speaker Sivakumar, an officer of the legislature, and detained him against his will. They replaced him with Ganeson who was smuggled into the Perak State Assembly by the illegitimate MB Zambry and facilitated by the police.
As an Umno leader would later comment in great disgust: “It was high-handedness at its foulest”.
Judges like Azahar Mohamed have allowed their courts (supposed portals of justice) to be turned into a playground of political expediency and the perversion of the rule of law.
The judicial circus continues and Chief Justice Zaki Tun Azmi appears to be cheering them on!