In our earlier posting on 3 March, under (Click here)"Perak Crisis: UMNO's Strangle-hold of the JUDICIARY Versus Pakatan Rakyat's LEGISLATURE with the Mandate of the Rakyat", we wrote:Related articles:" It is ALL politics, and LITTLE about the Law and the Constitution.
Malaysians now realised , and angrily so, it is a total waste of their time to seek justice and neutrality in the Courts...
Malaysians should NOT hold their breath to know how the court will rule in the hearing on March 5, when the three independents who left Pakatan Rakyat and now support Barisan Nasional, ask the court to quash the speaker’s decision to consider their state assembly seats vacant. Make a bet.
When one of the estates of democracy becomes an unwitting arm of the Executive....there is virtually NO hope for the Pakatan Rakyat or any political parties to win when faced with the political interests of UMNO/Barisan Nasional."
How to judge the Judge?
by N.H. Chan
(NH CHAN is former Court of Appeal judge, currently lives in Ipoh)
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.The Arrogance of a Novice Judge
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.”
I was taken aback by the astonishing ruling of the High Court judge. 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”.The Sun reported:
“(Tommy) Thomas (Sivakumar’s leading lawyer)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.The objection (by Judicial Commissioner Ridwan Ibrahim) was made under section 24 of the Government Proceedings Act (note: Read below what Section 24 of the Act says).
Thomas said, 'An objection was made against me and my team, saying that we had no locus standi to represent the Speaker.....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 (Thomas) asked if he couid sit in and hold a watching brief with speaking rights, (Judicial Commissioner) 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.
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.
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 it means ‘one who advises the court in a case’.
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 (RIDWAN IBRAHIM) 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.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.
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.”
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 (ie Ridwan Ibrahim)
You cannot judge a judge unless you know the basic law yourself. 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.
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.
Section 24 of the Government Proceedings Act 1956
(Point to remember: This Section of the Act used by Judicial Commissioner RIDWAN IBRAHIM )
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 lawAs you can see this subsection is not relevant as it only applies to CIVIL suits brought by or against the State Government.(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 …"
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 -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.(a) by virtue of his office; orSection 2 of the Act defines:
(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 … “” ‘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”
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
Is the Speaker of the Legislative Assembly a Public Officer and Article 132 of Federal Constitution
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 -(Thus), the SPEAKER and the MEMBERS of the Legislative Assembly of a State are NOT part of the PUBLIC SERVICE as they do nNOT hold office as such Public Officers.(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;”
Therefore, section 24(2) of the Government Proceedings Act (used by Ridwan Ibrahim) does NOT apply to them (ie the Speaker and members of the Legislative Assembly).
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.
Can the Courts Decide on the Validity of the Proceedings in the Legislative Assembly?
Mentri Besar Zambry (had told )the court the decision of Speaker Sivakumar to suspend him and his 6 exco members unconstitutional and unlawful.
The answer is 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 CORT.From the Federal Constitution itself, 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.
(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.”
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”.
(Update: Perak Speaker V. Sivakumar was again summoned by the police to give a statement at the state contingent over the deluge of reports lodged against him for suspending Perak Mentri Besar Datuk Dr Zambry Abd Kadir and six executive council members from the state assembly.
Continue reading HERE for more on NH Chan's article Lord Denning's comments on the Common Law of England.
(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.)
The Tree Injunction -my thoughts
Read here for more
I shall call it the "tree injunction". Not because it was granted under a tree. But it was obviously aimed to stop the sitting of the Perak Legislative Assembly under a tree and any other similar "unlawful" assembly.
Firstly, the question is whether Sivakumar should be represented by the State Legal Adviser. The Judicial Commissioner said he should be and therefore "private lawyers" were banned from the hearing. At the risk of being pedantic, I have to say, first of all, there is no such thing as private lawyers. There are advocate and solicitors. And on the side of the Government, there are Federal Counsel, or State Legal Adviser who appear in civil cases and Deputy Public Prosecutor or the Attorney General himself who appear in criminal cases.
On the issue whether Sivakumar must be represented by the State Legal Adviser, an opinion has been rendered at Loyar Burok. I find myself in complete agreement with that opinion and I will not add anything.
Secondly, I am just puzzled and bewildered at the stand taken by Zambry, the person whom the BN is saying is the legitimate MB. Now, if he is the legitimate MB, shouldn't he be represented also by the State Legal Adviser? If so, how come he was represented by "private lawyers"? I don't understand this part.
Thirdly, I am even more puzzled and bewildered at the end result of the argument by Mohd Hafarizam on the first issue above. If what he said is correct, namely, that Sivakumar should be represented by the State Legal Advisor, and consequently Zambry also has to be so represented, wouldn't there be a clear and obvious conflict of interest on the part of the State Legal Adviser in this matter? How could he act for both parties, who are advancing, quite clearly, directly opposing arguments in the matter?
Fourthly, when asked whether the Tree Injunction which he obtained would cover the tree assembly which went on the morning before the tree injunction was granted, Hafarizam was quoted by MalaysiaKini reports as follows:
If indeed Hafarizam said what he was reported to have said above, with all due respect to him as a fellow practising Advocate and Solicitor, I wish to say that that statement is laughable in its absurdity! I don't know what book on injunction which Hafarizam reads and what obscure 16th century case law on injunction which he reads - or case law of which country for that matter - but my 22 years of legal practice don't support what he said.
"For Barisan Nasional’s lawyers, the order which bars the speaker from convening “any unlawful meeting” covers the emergency assembly sitting held under a tree yesterday.
“Frankly, there is no time frame. So it should include the assembly held yesterday,” said Mohd Hafarizam Harun, in a text message reply today.
Mohd Hafarizam is one of the lawyers acting on behalf of Perak Menteri Besar Zambry Abd Kadir and his six cabinet members, who obtained the court order against Sivakumar yesterday.
Mohd Hafarizam argued that the speaker was served a notice of the court action on Monday while the sitting was held on Tuesday. “So it would appear that it covers the (Tuesday) morning (sitting),” he told Malaysiakini."
Let me explain why. An injunction, the type of which was obtained by Hafarizam, is an order to restrain a person from doing an act. Now, if the purpose is to restrain, it goes without saying that the act which is sought to be restrained has not been committed yet. How to restrain an act which has been committed? If Hafarizam wants to deal with an act which has been done, he should obtain a declaration that such act is illegal or unlawful or both. He could also obtain a further declaration that all resolutions passed at that assembly are void and of no effect. The tree injunction does not operate to make illegal or unlawful the assembly which took place before the tree injunction was granted. I would have thought that that position would be elementary.
Fitfhly, Chan Kok Keong, the "private lawyer" (excuse me, I need to laugh...hahahaha) who acts for Sivakumar was quoted by Malaysia Today in its report as saying that the tree injunction says as follows:
"It is hereby ordered that the 1st defendant, YB Encik V Sivakumar is restraint from convening any unlawful meetings purporting it to be a meeting of the Perak state legislative assembly."
Which begs the question, what is "unlawful meetings"? What if Sivakumar convene an assembly thinking, honestly and sincerely, and after legal advice, that the assembly is not unlawful? Can he be committed for contempt for having breached the tree injunction? I don't think so. Because for him to be committed for contempt, he must be shown to have intended to breach the tree injunction. Now, if he was under the impression, after considering legal advice that the assembly he was convening was not unlawful, where is the intention to breach the injunction? And if any meeting convened by Sivakumar is unlawful on the face of it, why must he be restrained from convening such meeting in the first place? After all, that meeting is already unlawful and is of no effect whatsoever. Why bother?
I think the tree injunction is not valid and is liable to be set aside on appeal because it is vague. In legal jargon, that tree injunction lacks precision. In a case called lawrence David Ltd v Ashton reported at page 385 of the All England Law Report, the Court of Appeal in the UK was considering an injunction which sought to restrain a person from "disclosing to any person or making use of any confidential information or trade secret belonging to the Plaintiff".
The words in italic and bold letters above were however not defined in any way in the injunction. One of the appeal Judges said:
"I have always understood it to be a cardinal rule that any injunction must be capable of being framed with sufficient precision so as to enable a person injuncted to know what it is he is to be prevented from doing. After all he is at risk of being committed for contempt if he breaks an order of the court. The inability of the Plaintiff to define, with any degree of precision, what they sought to call confidential information or trade secrets militates against an injunction of this nature. This is indeed a long recognised practice." (all emphasis are mine).Similarly, in the tree injunction, what constitute "unlawful meetings" is not defined at all, let alone with precision. And so I think the tree injunction is as dead as a tree in a dessert!
Lastly, can a Speaker or his acts in a the Legislative Assembly be questioned in court? In legal jargon, are his acts jucticiable? The Bar Council says they are not. I agree. Otherwise, a Legislative Assembly would not be able to function as every decision of the Speaker could be brought to the Court and open up for questioning.
Could you imagine Pandikar Ali be sued each time he makes a ruling in the Parliament? The Courts might have to convene under a tree in such circumstances as there might not be enough Court room to hear the matters.
People’s hope in the judiciary has been misplaced
President , ALIRAN
Read here in ALIRAN.
Confronted by crisis in Perak, the people had reason to believe that the judiciary would be our last hope for justice to prevail. That hope is apparently misplaced. What a disappointment that proved to be!
It is difficult to believe or accept the decision of the Judicial Commissioner, Ridwan Ibrahim. To say the least, Malaysians are shocked into disbelief by his verdict. Technicalities were used to prevent a fair trial and counter arguments to help the judge to arrive at a sound decision. In this instance we are reminded of Aeschylus who said, “Wrong must not win by technicalities.” But that was what happened in the Ipoh High Court on 3 March 2009. It is a matter of grave disappointment to all of us.
To begin with, his decision to hear the case in chambers – not withstanding his discretionary powers - came as a complete surprise to the nation. Knowing that the entire country is very concerned with what is happening in Perak, the appropriate thing would have been to hear the case in open court as requested by senior lawyer, Tommy Thomas, representing the Speaker of the Perak Assembly. This fair request was denied.
What is at issue in this instance concerns every Malaysian and they have a right to know what persuasive arguments have been presented to support this case that has been brought to the Ipoh High Court by Zambry and others. We have a right to know what prevailed upon the Judicial Commissioner for his decision. Now, we will never know what transpired in the chambers.
Secondly, the decision to deny representation by lawyers of the Speaker’s choice on mere technical grounds is perplexing. The argument that the five lawyers chosen by the Speaker to represent them have no locus standi is difficult to accept as justifiable grounds to deny the Speaker his defence. That goes against natural justice.
To insist that the Speaker should be represented by the office of the state legal advisor is indeed baffling. It is incredulous that the court failed to see the obvious inherent conflict of interest. The legal advisor is currently representing ‘the other MB’ Zambry Abd Kadir in a case brought to court by the legitimate MB Nizar Jamaluddin. How could the legal advisor now seriously and consciously defend the position of the Speaker? Is it even possible? This is stretching absurdity to the extreme limits!
If it is true as is claimed that the “officer” of the government – in this case the Speaker - must be represented by the legal advisor, does it mean that the court recognises that the Speaker and his Executive Council is the legitimate government in Perak?
Or put another way, since the legal advisor is representing “the other MB” on behalf of the government in the High Court case in Kuala Lumpur, does it not imply that Zambry and his Council members are accepted and recognised as the “legitimate” representatives of the Perak government? That being the case, how can Zambry and the others then be represented by private lawyers and not by the legal advisor? Shouldn’t the same argument prevail that this so-called government must be represented by the state legal advisor? Why this double standard?
Thirdly, we are appalled that the request by Tommy Thomas to hold a watching brief with speaking rights was denied by the court, which ruled that he could hold the watching brief but could not submit or participate in its proceedings. This decision is clearly absurd and incredible!
How could the court in the name of justice choose to pass judgment without hearing the other side? How could the court arrive at a just decision without the benefit of the counter argument? How could the court not allow representation before passing judgment? “Fairness is what justice really is,” said Potter Stewart. Where is that fairness in this case?
Fourthly, the court has issued an indefinite restraining order - to stop the Speaker from summoning the sitting of the State Assembly - after a one-sided 90 minutes of submissions and 10 minutes of deliberation. Does this decision take into consideration the consequence of that ruling? It has been stated by legal experts that if the Assembly does not sit at least once within a span of six months then the Assembly is automatically dissolved.
The much anticipated reformation in the judiciary is illusory. It will not take place with the present set up of the judiciary. It would take a complete overhaul of the judiciary with new appointments of competent people of absolute integrity.
The crisis in Perak cannot be solved by the judiciary. The proceedings in the Ipoh High Court brought to mind what Thomas Fuller rightly observed, “Rigid justice is the greatest injustice.”
Ultimately, it is the will of the people of Perak that must solve their dilemma - not someone else or some other institution. Aliran hopes and pleads that common sense will prevail in the larger interest of the nation.
As we see it the only solution lies in the dissolution of the Perak State Assembly and holding fresh elections. Let the sovereignty of the people decide once and for all who should form the government in Perak.
Are we Malaysia or are we Zimbabwe ?
This seemingly ridiculous question has to be asked because of what is happening in Perak. The BN has failed to display the political maturity as the ruling coalition of a nation that has experienced 52 years of Parliamentary Democracy.
What is taking place in Perak brings us disgrace and disrepute. Malaysia comes across as no better than Zimbabwe or even Myanmar where the rule of law has been cast aside. It is no better than these despotic states that do not recognise the principles of democracy or the sanctity of the due process of the law.
We have, unfortunately, descended to this gutter level because of the corrupting influence of power and position. This greed for power has totally corrupted politics in Malaysia that we no longer pay homage to truth and justice; we no longer honour the will of the people.
In the maneuvering and manipulation that is taking place in Perak to topple a legitimate government by foul means, the BN politicians seem to have forgotten that sovereignty remains at all times with the people and they do not forfeit it even though the might of the ruling party has been brought into play to sabotage the democratic will of the people.