When a judge is plainly wrong, especially when he claims to interpret the obvious, it is not wrong for any right thinking member of the public to cricitize him.
by N H Chan
In the New Sunday Times of April 19, 2009 there appears this astonishing remark (because it is erroneous in law) which was attributed to a Minister in the Prime Minister’s Department:
KUALA KANGSAR: Minister in the Prime Minister’s Department Datuk Sen Mohammed Nazri Abdul Aziz has hit out at Perak DAP chairman Datuk Ngeh Koo Ham for questioning a Federal Court ruling pertaining to Perak.
He said Ngeh should not question the court’s decision that Perak state assembly Speaker V Sivakumar did not have the power to suspend Mentri Besar Datuk Zambry Abdul Kadir and six Barisan Nasional (BN) state executive council members from attending the state assembly sittings. They were suspended for unprofessional conduct early this month.
There was no question of the judiciary interfering in the legislature as claimed by Ngeh as the courts were the best place to seek interpretation of the Constitution or law, he told reporters.
Nazri said the law did not intend to equip a speaker of a legislative assembly with unrestricted authority.
(the emphasis is supplied by me).
Everyone knows that Ngeh was talking about Article 72 (1) ofthe Federal Constitution which states:
72. (1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.
But what the Minister was saying is that “the courts were the best place to seek interpretation of the Constitution”. Now I ask the readers, do you, as a member of the general public, need a judge to interpret Article 72, Clause (1) above? But when the judges were asked to apply Clause (1) of Article 72, as we have recently observed, they have blatantly refused to apply the constitutional provision as it stands. We know that the words mean what they say. According to the dictionary the word “interpret” means “explain the meaning of”. I don’t think we need the Federal Court or any court to explain the meaning of Article 72 to us – the meaning is plain enough for us ordinary Malaysians to understand. No one in his right senses would attempt to interpret the obvious meaning of the words in Article 72(1), unless he wants to say the words mean something else as Humpty Dumpty did in Lewis Carrol: Through the Looking Glass, 6 Humpty Dumpty:
“I don’t know what you mean by ‘glory'” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t – till I tell you. I meant ‘there’s a nice knock-down argument for you!'”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument,’ ” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”
Alice was too much puzzled to say anything;
Then, like Humpty Dumpty, Nazri made this amazingly naive statement: “the law – [meaning Article 72(1)] – did not intend to equip a speaker of a legislative assembly with unrestricted authority”. But that was not the point of what Ngeh said. So what if the speaker was wrong on what he did or said or ordered in the legislative assembly? The supreme law of the land says that “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”. This could only mean that all differences which occurred in the legislative assembly could only be resolved by the assembly within the assembly itself. The validity of any proceedings in the Assembly is beyond the reach of the courts – so said the Constitution of Malaysia. The “law” does not mean, as the Minister wanted it to mean, that it “did not intend to equip a speaker of a legislative assembly with unrestricted authority”. Like Alice, the general public were too much puzzled by such a naive remark.
Anyway, why should a judge be afraid of criticism of his judgment if he has done nothing wrong and he is only doing his duty to administer justice according to law? Judges do not fear criticism, nor do they resent it: see R. v Metropolitan Police Commissioner, ex parte Blackburn (No. 2) [1968] 2 Q.B. 150, at p 155 where Lord Denning said: “We do not fear criticism, nor do we resent it”.
This is because “justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”. In the Privy Council case of Ambard v. Attorney-General for Trinidad and Tobago [1936] A.C. 322, this was what Lord Atkin said, at p. 335:
“. . . whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
#1 by yhsiew on Wednesday, 22 April 2009 - 9:16 pm
I wonder if Datuk Sen Mohammed Nazri Abdul Aziz had passed his law degree.
#2 by limkamput on Wednesday, 22 April 2009 - 9:36 pm
Jeffrey, you see, you must now realise the difference between a wannable and a real judge. You are just a wannabe, no more, no less.
#3 by All For The Road on Wednesday, 22 April 2009 - 9:43 pm
Justice N H Chan, a former Court of Appeal judge, is a very prominent, learned and distinguished judge who has served the nation well during his tenure of service. He is also vastly experienced in legal matters and his observations in the court judgments of late are highly noteworthy and food for thought.
If a judge has erred in his judgment, why can’t he be questioned on points of law. No one should be intimidated by whoever he is, even if he is the de facto Law Minister. There should be freedom of expression!
#4 by Cinapek on Wednesday, 22 April 2009 - 10:07 pm
Wah, Nazri and company kena “belasah” nicely for trying to act smart.
Not only any layman can easily understand and interpret the simple language of Article 72. (1) but even a primary school kid could interpret its meaning just as easily. The only people who have trouble interpreting it are those bent on twisting any law to suit their agendas. It is examples of such compromise of ministerial integrity and credibility in the public that alarms the rakyat to the extent they do not trust the BN govt one iota. And that is one of the key reasons for rejecting th BN govt and ungratefulness for BN bribes during elections has nothing to do with it.
#5 by frankyapp on Wednesday, 22 April 2009 - 10:38 pm
The judge was plainly wrong in his judgement while Nazi in his defence of the judge was plainly wrong too.He now thinks that two wrongs will make a plain right. Will Nazi pass NR’s KPI ?
#6 by wvee on Wednesday, 22 April 2009 - 10:39 pm
Selective interpretation of course. I personally don’t think the Boros Negeri (BN) will continue allow the stupid NAZRI to bark like a dog, OLD HAT has voiced out that this fella shouldn’t have been in the cabinet. However, if this continues, the people will judge by themselves in the coming 13GE, which is good for PR anyway.
Judgements made by the “judges” of BN will face the consequences sooner or later. Let the rodents continue doing what they want to do now. Their time is counting on days now… We see clearly the selective interpretation in both Perak and Gobinh’s suspension case. BN is not fit to govern this country ANYMORE!!! SOMEDAY, SOMEONE, SOMEHOW, FOR THE SAKE OF DEMOCRACY, THESE SCUMBAGS WILL BE PUNISHED!
#7 by StevePCH on Wednesday, 22 April 2009 - 10:46 pm
i agree with wvee …. Selective Interpretation.
Judiciary is above the highest law of the land. The Federal and state constitution.
We do not need a Parliament anymore. We only need judges to decide for us. The Judges should also appoint MPs and State Assemblyperson because they are above the constitution.
Even if PR win the next GE, the judge can dismiss the victory and call for a re election ? Just too obvious.
But guess whose above the poor judges…..
#8 by Loh on Wednesday, 22 April 2009 - 10:52 pm
Nasri only followed the doctrine of ‘whatever’. Whatever said by his boss was correct. Whatever said by his former boss who contradicts his present boss are wrong. Whatever said by the judges that support BN are right, and he is sometimes too smart by half when he tried to add words to support the judges.
It was said that there is a difference in the role of a president and of a King in their role for upholding the constitution. It seems that the president was a commoner so he has to follow the law. The king is of blue blood birth and so he can do no wrong and his action is always correct, and when the actions disagree with the law, the law is plainly wrong. So, the country has the mindset to follow the singer and not the song.
#9 by Cannottahan on Wednesday, 22 April 2009 - 11:39 pm
The outside world are filled with so much more laughter from this clown outfit,at all their doings,their abusive actions,towards suppressing the people of this land, on laws and constitutions rights.
Really stupidity at it’s utmost superior kind.
Reality,we don’t find it amusing but rather disappointing…a burning desire to rise up ,to uphold our rights and to preserves the true constitution as written.
Damn those corrupted clowns!
#10 by LG on Thursday, 23 April 2009 - 12:12 am
Nazri – Minister in-charge of law?
NH Chan wrote well, giving much clarity to the whole episode.
Nazri seemed unfit to be the Minister in-charge of law. How did he manage to get his law degree? He does not understand what Ngeh is talking. Also he does not even know how to interprete Article 72 (1) of the Federal Constitution when the definition is so obvious even to the general public.
“Amazingly he made that naive statement: the law – [meaning Article 72(1)] – did not….”. What a stupid statement. From a lawyer? From the Minister in-charge of law?
What kind of performance he has shown? Failed.
Dear PM, you need to send this minister back to the law school again.
#11 by HJ Angus on Thursday, 23 April 2009 - 12:42 am
This is the final phase to show how corruption has spread throughout the entire system of government.
It is time the people voted to change the government before it is too late to save our nation.
#12 by mendela on Thursday, 23 April 2009 - 1:18 am
To side track, when could the Opposition in Malaysia get a chance to defend in MSM like in Youtube below?
#13 by mendela on Thursday, 23 April 2009 - 1:19 am
http://www.youtube.com/watch?v=vZjRwHG7URk
#14 by sheriff singh on Thursday, 23 April 2009 - 2:29 am
Just thinking. Can Lord Atkin’s comments in Ambard v Attorney-General for Trinidad and Tobago be similarly applied to “any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done” by a Ruler? (Generally speaking, with no reference to any particular Ruler.)
“…. provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
#15 by mumzie on Thursday, 23 April 2009 - 2:55 am
Uncle Lim, this is what we call Malaysia boleh – apa pun boleh. We say Chicken (real chicken) BN will interpret it as that type of ‘ayam’…. We talk about subject ‘A’ they will be talking about subject ‘B’…. no ending. BN people don’t go to school.
#16 by KeenWatcher_01 on Thursday, 23 April 2009 - 3:25 am
Very very sad. History will tell our next generations that what we have are “cowboy” judges. Is it because the Constitutions were written in English and therefore the misintrepretations or otherwise?
#17 by daryl on Thursday, 23 April 2009 - 5:21 am
Very true but justice will not be served as long as BN is still in power. If PR come to power it will take another 10 years to clean PDRM, Judiciary and EC out. It will be painful 10 years but for the sack of Malaysia that needs to happen either soon or next PRU-13.
Sad day for Malaysia but this open up for Gobind to make a mockery of our Federal Court (BN/UMNO) judges. See what happened after 50 years of corrupt government.
#18 by Jeffrey on Thursday, 23 April 2009 - 6:16 am
NH Chan cited what Lord Denning said, “We do not fear criticism, nor do we resent it”.
The background to these remarks: they were made on a case [ R. v Metropolitan Police Commissioner, ex parte Blackburn (No. 2) [1968] where a politician as eminent as Michael Foot said: “Denning is an ass” and big newspaper like the “The Observer” gave the headline, “Why Denning is an ass…..”
Whilst NH Chan cited Lord Denning as saying judges are neither above criticisms nor fear criticism – which is relevant and applicable only in free societies and not totalitarian ones and regardless whether what a judge decided is plainly wrong or not so plainly wrong – Chan has selectively left out Denning’s caveat that criticisms must be fair, as judges, by nature of their position, cannot embroil in controversies and exercise the right to reply and defend against criticisms in public.
For context, this is the full quote of Denning for readers to take a full measure of the judge’s observations and thinking process:
“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”
“It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.”
“All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.”
#19 by Jeffrey on Thursday, 23 April 2009 - 6:49 am
Lord Denning was libertarian judge. (Here word “libertarian” is used in context of broad spectrum[1] of political philosophies known as “Libertarianism” which seek to maximize individual civil liberty[2] and minimize or abolish the state’s encroachments].
The other ‘libertarian’ judge quoted by ex judge NH Chan is Lord Atkin in Privy Council case of Ambard v. Attorney-General for Trinidad and Tobago [1936].
Note the date – in 1936 when England was facing (besides after effects of the 1930s Depression) also Hitler/Nazi’s threat of invasion. German spies were in England then, gathering logistic and other strategic information. And draconian emergency defense legislations (forming the basis of later draconian legislations in colonies like Malaya like ISA) were promulgated giving English Secretary of State (equivalent to our Home Minister) wide discretion to detain citizens at will people suspected of being a threat to national security.
The question then was whether Courts could review the Secretary of State’s decision to detain – since the emergency defense legislations provided in express language that the Secretary of State had the discretion.
(There are perennial questions. It is asked again and again even here when Raja Petra, Sin Chew reporter Tan Hoon Cheng YB Theresa Kok were detained under ISA).
The majority of the English Apex Court favoured vesting the Secretary State with the discretion (as stated in emergency legislation) that was said beyond review of judges. After all England was then in times of maximum danger from Hitler!
Lord Atkin was sole dissenting voice when he made these eloquent observations for the cause of civil liberties when construing the emergency defense legislation in Great Britain during World War II in the case of Liversidge v. Anderson in 1941:
“In England, amidst the clash of arms the laws are not silent…
They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that the judges are not respecters of persons, and stand between the subject and any attempted encroachments of his liberty by the executive, alert to see that any coercive action is justified in law…I protest, even if I do it alone, against a strained construction put upon words, with the effect of giving uncontrolled power of imprisonment to the Minister….”
These were the kind of libertarian judges that helped lay the foundation of civil liberties that the English are fond of saying they uphold and enjoy.
#20 by Jeffrey on Thursday, 23 April 2009 - 7:48 am
There is a point in the two preceding postings above.
As much as judicial review of Executive decisions/proceedings ought not to be excluded (as in Liversidge Anderson’ case or our local ISA case of Raja Petra, Sin Chew reporter Tan Hoon Cheng YB Theresa Kok) so too judicial review of Legislative proceeding or a decision cannot be excluded if it were unjust, unfair, contrary to proper procedures etc, notwithstanding 72. (1) of Constitution that states “the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.
NH Chan is just selective in his argument when he says it is plain that under article 72 the plain language is that the Courts cannot review and strike proceedings of Legislative Assembly down……..
The fact is NH Chan and sympathisers to his point of view are just doubtful that judiciary will be impartial in judicial review to bring justice to PR, and so it is better not to have judicial review…..which is quite different issue from the question whether if the Judiciary is perceived independent and competent to render a fair review, article 72 in spite of its plain language will preclude review…..Don’t mix up the issue of confidence in Judiciary to render a fair review from the other issue of whether proceeding strictly upon law and logic, article 72 really, in spite of its apparent plain language, exclusionary of review as what NH Chan argues, selectively, i would say.
The fact is here (in Sivakumar versus Zamri suspension case), it is PR that was dominating the State Assembly that suspended Zamri & 6. If it were a State Assembly dominated by BN reps, and BN Speaker suspended PR’s assemblymen, would NH Chan cite article 72. (1) of Constitution – “the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court – to argue against PR suspended Aduns’ applying to court for judicial review of BN Assembly Speaker’s suspension decision?
Just like at Parliamentary level DAP MP for Puchong Gobind Singh Deo is initiating legal proceedings to challenge his one-year suspension as Member of Parliament by the BN Parliamentary Speaker .
Gobind didn’t do so earlier because Article 63(1) of the Malaysian Constitution (applicable to Federal Parliament) stipulates in same vein as article 72. (1) (applicable for State Assembly) : “The validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court.”
Is NH Chan going to tell Gobind not to seek Court’s review of Speaker’s decison to suspend him because all of us as a member of the general public can read plain language of the Constitution – “The validity of any proceedings in either State Legislative Assembly (as in Article 72(1)) or House of Parliament or any committee thereof (as in Article 63(1)) shall not be questioned in any court?” Or is NH Chan going to turn around and now say (in Gobind Deo’s case) what Nazri Abdul Aziz argued – that “the courts were the best place to seek interpretation of the Constitution” (where a person is seeking it is PR’s rep and not BN’s rep)?
The point here on ruule of law is that whether we’re dealing with executive or Legislature, if suspension is unfair or unjust by reason of procedures, rules of natural justice not being followed, etc, the courts can always intervene and review to cure the injustice.
This is the principle inviolate but many (including an ex judge) twist and selectively apply it because of the implicit unarticulated assumption that our courts cannot deliver justice except to the Ruling Coalition so therefore judicial review is Ok and included if PR is seeking it against BN Speaker and not OK and excluded if BN is seeking it against PR Speaker!
Sad to say we have reached a point no one cares about what is right or wrong, the law or not law. There’s only interests and only emotions – and everything including one’s judgment is selective and situational, depending on whether one is for or against the establishment/ruling coalition/vested interest or the Opposition/PR.
Rules then can be bent, logic and law can be twisted, black can be twisted to white depending on which side of fences one sits. Looks like the country is divided and torn in an irreconcilable war to the finish.
#21 by Godfather on Thursday, 23 April 2009 - 7:50 am
After 20 years of “evolution” through the anti-Darwinian process of unnatural selection, the Judiciary has become an insurance tool for UMNO. It has become embroiled in political controversies to support only their political masters, while justice gets thrown out of the window. If the highest court in the law decree that black is white (or vice versa) then however much criticism we heap upon the judiciary isn’t going to matter – until we have control of the federal government and change the political patronage of the judges.
Look at the recent judgment of the courts involving Pahang UMNO having to pay 60+ million of damages to a logging company – who dares to bet that relief will not be granted to UMNO by a higher court ? UMNO clearly doesn’t have the money, but the courts have found that it has done wrong, and now it has to exercise its insurance policy to ensure that it doesn’t go bankrupt financially.
#22 by Godfather on Thursday, 23 April 2009 - 8:04 am
Sorry, should be “highest court in the land decrees….”
#23 by Jeffrey on Thursday, 23 April 2009 - 8:13 am
I appreciate that many would viscerally be unhappy with anything that is said in question or rebuttal of NH Chan’s opinion especially that of an esteemed ex judge whose force of opinion is helpful to PR’s cause, and for this alone and nothing else, many would go along….and would not listen to anything else.
We’re however trying to rationally determine certain issues here – interpretation of constitutional provisions (article 63 or 72)principles of judicial review and its relevance based on objective considerations (independent of political causes).
Mr Lim was a founder of law firm Chor Pee & Hin Hiong, in 1964…. 491. …. file icon When justice is not administered according to law
N H Chan himself would relish arguments even in those days in late 1960s & early 70s amongst friends in his chambers when he was partner in law firm Chor Pee & Hin Hiong, Ming Building.
#24 by Godfather on Thursday, 23 April 2009 - 8:29 am
Many of us know that the courts could only be relied upon to serve the executive after 1988 when Salleh Abas and colleagues were summarily dismissed by Mamakthir. A succession of questionable Chief Justices right up to the present one only served to compound our fears. It doesn’t take an opinion by NH Chan to sway our position.
#25 by Lee Wang Yen on Thursday, 23 April 2009 - 9:02 am
I think Jeffrey is right on this count. According to Prof. Kevin Tan, an adjunct professor at the Faculty of Law, National University of Singapore, ‘[b]asic constitutional theory observes the limitation of all power within a state. It therefore cannot be the intention of the framers of the Federal Constitution to make the LA a law unto itself.’
He says that the Federal Court is correct in intervening in this case, and that the court could argue that either the decision to suspend member of the LA is a procedural matter governed by law (i.e. standing orders of the LA) and thus subject to judicial review or that the suspension does not fall within the definition of the term ‘any proceedings’.
I’m not a lawyer. I’m just conveying what Prof. Tan said and wrote to me in a series of discussion after I attended a seminar on the Perak constitutional crisis at NUS last week.
#26 by Bigjoe on Thursday, 23 April 2009 - 9:26 am
Who screw up this part:
‘the law did not intend to equip a speaker of a legislative assembly with unrestricted authority’?
BN.
The Speaker power, orginally in founding, was governed by assembly checks and balance, was destroyed by BN over the decades. Sivakumar, when this thing started, says to blame his actions on BN screwing around for decades.
The fact it has gone to the courts at all is the fault of BN and what we are seeing is the screw things up one thing after another and then says that entitled them to screw things up even more.. What more proof do we need of BN’s prodigal inheritors?
#27 by lee wee tak_ on Thursday, 23 April 2009 - 9:34 am
there is a shorter saying in Chinese
“point to deer and claim it is a horse”
this episode is 1,000 times worse than the referee’s mistake in Maradona’s hands of god goal decision.
if one is patriotic, one should not drag the country’s good name down the gutter
#28 by fbelmah on Thursday, 23 April 2009 - 9:58 am
It is very strange that people who can’t even think as normal persons is elevated to a ministerial position in Malaysia. People without calibre, knowledge, common sense, big mouth, senile and with bought degrees can be appointed as ministers. First please check the credentials of the degree before appointing a person as ministers.
Datuk Seri, purge these type of people from the cabinet. They are insane and open their mouth when they shoul not.
#29 by kbong on Thursday, 23 April 2009 - 10:06 am
The Bar Council should investigate if Nazri and all those judges actually sat for and passed their law exams to become lawyers. After all there have always been cases of people using forged degrees and professional certificates for job applications and employers rarely check the authenticity of their qualifications.
Do not be surprised if the investigations turn up shocking revelations such as that some of them only finished primary school. After all they cannot even understand the meaning of some simple words contained in a simple sentence: “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.”
Also remember that Bar Council guy who is about to go to jail for forging and manipulating The Bar’s CLP exam results. He was not caught at his first attempt but after a few years of criminal activities.
#30 by kbong on Thursday, 23 April 2009 - 1:10 pm
Jeffrey (Today at 07: 48.39) asked:
“If it were a State Assembly dominated by BN reps, and BN Speaker suspended PR’s assemblymen, would NH Chan cite article 72. (1) of Constitution – “the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court – to argue against PR suspended Aduns’ applying to court for judicial review of BN Assembly Speaker’s suspension decision?”
If am NH Chan I shall answered Jeffery thus: “Yes, I will also cite article 72.(1) of the constitution.” Are you, cynical Jeffrey, going to call me a liar if you not like my answer?
Again Jeffrey asked:
Is NH Chan going to tell Gobind not to seek Court’s review of Speaker’s decison to suspend him because all of us as a member of the general public can read plain language of the Constitution – “The validity of any proceedings in either State Legislative Assembly (as in Article 72(1)) or House of Parliament or any committee thereof (as in Article 63(1)) shall not be questioned in any court?” Or is NH Chan going to turn around and now say (in Gobind Deo’s case) what Nazri Abdul Aziz argued – that “the courts were the best place to seek interpretation of the Constitution” (where a person is seeking it is PR’s rep and not BN’s rep)?
Again, if I am NH Chan, I will answer cynical Jeffrey thus:
“Gobind has not appointed me as his counsel. Therefore the question of how I will advise him does not arise. However I will be a busybody and give my opinion that although Section 72(1) is extremely clear that “the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”, nevertheless in the case of Gobind, he should and must appeal to the Federal Court to review the Dewan Rakyat Speaker’s decision, not because I believe he has the right to such an appeal, but because I am curious as to how the Federal Court will make it’s decision in the case of a BN Speaker. Better still if the same 5 judges form the panel to hear Gobind’s appeal.
Jeffrey also wrote:
“There’s only interests and only emotions – and everything including one’s judgment is selective and situational, depending on whether one is for or against the establishment/ruling coalition/vested interest or the Opposition/PR.”
Jeffrey is right on this score. That’s because we are humans, and the last time I checked, normal humans still have emotions, and different humans tend to form different opinions that are influenced by their own emotions, surrounding and environment. Different humans with different opinions end up forming different groupings, be it social, political, religious, sporting etc. Society has accepted that it’s members have a right to join different groupings with different ‘vested interests’ (using Jeffrey’s words). In order for different groupings with different vested interests to engage one another in a so-called ‘civilised’ manner, we have rules of engagement which everyone agree to follow. It so happens that one of the rules says very simply and clearly that:
“The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.”
Unfortunately right now the party who is holding the bigger gun has decided not to follow the agreed rules of engagement.
#31 by Jeffrey on Thursday, 23 April 2009 - 3:13 pm
This is in response to kbong’s posting Today at 13: 10.47 above.
The purpose of my hypothetical/rhetorical questions is not to be “cynical” or impute in any way NH Chan a “liar”. Hardly.
The purpose is to underline/dramatise by rhetorical approach the importance – especially for PR – the consistency of policy positions and principles for example, supporting judicial review.
Judicial review is important to safeguard against abuse of power by an all important Executive or a Legislative Assembly dominated by majority ruling coalition and parties.
If you, as supporters of Opposition, were to construe articles 72 or 63 in restrictive way to exclude judicial review just because the legislative proceedings and procedures in question at this moment (in Sivakumar versus Zamri case) were initiated by PR’s Speaker supported by PR’s assemblymen, where do you stand the next time around in other legislative assemblies dominated by BN aduns, the BN Speaker suspend PR’s representatives without just cause or reason? Are the PR/Opposition members suspended “estopped” from going to courts because in earlier case of Sivakumar against Zamri & 6 rthe PR has already taken the position that there was no judicial review of proceedings in legislative assembly?
Remember when the other side pitched for PR “frogs” to leap – which caused the downfall of PR Perak state government and present constitutional crisis – what was the first argument that the perpetrators of the coup de grace offered for the power grab as a sorry excuse in undermine of the rakyat’s mandate ? Wasn’t it that defacto PR chief Anwar had, the year before, consistently boasted of power grab at parliamentary level by 30+ kataks from East Malaysia?
The moral of the story is that consistency to principles is important. One never knows when taking an opportunistic and situational approach based on expedience and interest for present gain, it is going to be used against you in the future!
Besides PR and its supporters who advocate democratic approach cannot take a position that Judicial Review by Courts should be excluded from oversight of Executive and Legislative Branch.
Who else is going to check on abuse of power in any of these branches?
Not trusting one’s Judiciary of being capable of conducting an impartial judicial review (when one is on the opposite side against judicial review) is a SEPARATE and INDEPENDENT issue from whether we support in principle Judicial Review per se – if the other question of independence of judiciary were not linked and in issue.
As I earlier said, do not mix and confuse the two separate issues.
#32 by kbong on Thursday, 23 April 2009 - 7:46 pm
Jeffrey wrote:
“Judicial review is important to safeguard against abuse of power by an all important Executive or a Legislative Assembly dominated by majority ruling coalition and parties.” &
“PR and its supporters who advocate democratic approach cannot take a position that Judicial Review by Courts should be excluded from oversight of Executive and Legislative Branch.
Who else is going to check on abuse of power in any of these branches?”
He may be correct but unfortunately his point is not relevant here but will nevertheless make a good subject for a different discussion on a different occasion.
Jeffrey also wrote:
“If you, as supporters of Opposition,…”
“Remember when the other side pitched for PR “frogs” to leap…”
Again, the matters of political allegiance, or “frogs”, whether BN frogs or PR frogs, are not relevant here. We are discussing the meaning of a few simple words that make up this simple sentence: “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.”
Jeffrey also wrote “do not mix and confuse the two separate issues” besides claiming in his earlier posting that commentators other than himself are getting emotional. Sadly, poor Jeffrey himself has become so emotional over this subject that he has become completely confused. He is completely unaware that the subject and purpose of NH Chan’s article is the meaning of a few simple words that make up the simple sentence which reads:
“The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.”
In fact, in his article, NH Chan even posed this question:
“Now I ask the readers, do you, as a member of the general public, need a judge to interpret Article 72, Clause (1) above?”
The simple sentence that makes up Article 72(1) does not mention judicial review, or political allegiance or any other factors Jeffrey harped on. If there was any intention for a judicial review, it would have been included in the clause. If the government of the day feels that Article 72(1) is defective or insufficient and that proceedings in the Legislative Assembly should be subject to judicial review, then have Article 72(1) amended. Until then Article 72(1) means simply that “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.”, no more, no less.
As I mentioned earlier, “Unfortunately right now the party who is holding the bigger gun has decided not to follow the agreed rules of engagement”, the rule in this case being:
Article 72. (1) of our constitution which says “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.”
#33 by Jeffrey on Thursday, 23 April 2009 - 8:03 pm
If we were to follow strictly kbong’s approach in construing legislation according to the plain grammatical and apparent meaning of the words – what we call the literal approach in constuction – then there won’t be justice or check and balance under the pretext of ‘divining true intent” of legislature making the law, and in the literal and plain meaning of the words of the Internal Security Act tthe courts could not go behind and review whether Home Minister Hamid was rational or had basis when he exercised discretion to sign detention of (say) Hindraf leaders and RPK. :)
#34 by kbong on Thursday, 23 April 2009 - 8:22 pm
Judicial review becomes necessary when meaning and intent is vague or unclear. In the case of the sentence : “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.”, there have been comments that even a primary school student can understand its meaning. Does this mean that those who cannot understand this simple sentence were unfortunate enough not to have even a primary school education?
#35 by Jeffrey on Thursday, 23 April 2009 - 9:59 pm
If the proceedings in the State Legislative Assembly were alleged to be conducted in manner:
· Not in accordance with the House Standing Orders and rules; or
· Oppressively (say) in not giving persons/aduns suspended tne right and opportunity to be heard ; or
· Imposition of excessive punishment like for example suspension 3 years; or if
· Decision made in Assembly by majority without proper prior notice of agenda/motion of discussion being made known before the meeting;
· Or if certain quarters are prohibited by Speaker from speaking on any issue to be voted upon, contrary to freedom of speech,
can’t the Court, in each of such cases, judicially review and question the proceedings and decisions made in such a Legislative Assembly meeting, in the light of plain language of article 72???