By N H Chan

Gobbledegook

Most, if not all, laymen will find the written judgment of Augustine Paul FCJ – who eventually put in writing the judgment of the unanimous decision of the infamous five – most perplexing. I am not surprised. I find it unintelligible also – in fact, it is what the word “gobbledegook” means in the English language, “unintelligible language”.

In case you have forgotten

In case you have forgotten, I shall try to jolt your memory. The infamous five were Alauddin bin Dato’ Mohd Sheriff PCA, Arifin Zakaria CJM, Nik Hashim Nik Ab Rahman, Augustine Paul and Zulkefli Ahmad Makinudddin FCJJ. Their story exploded on the front page of the Star newspaper of Friday, 17 April 2009. It carried the startling and outrageous decision of the Federal Court. The headline proclaims, “Court: Siva does not have right to suspend seven”. The report reads:

PUTRJAYA: 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 ececutive 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-men panel yesterday, said the Speaker’s decision to suspend the seven applicants was ultra vires (outside the law) and invalid.

In an article which was posted on the internet at the time, I wrote:

This is a perverse judgment 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 reffised 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”.

In case you don’t remember who Augustine Paul J (as he was then) is. It was he whose judgment for convicting Anwar Ibrahim of so-called corruption under s 2(1) of the Emergency (Essential Powers) Ordinance ran to 208 closely printed pages in the Malayan Law Journal. The case was reported as Public Prosecutor v Anwar bin Ibrahim [1999] 2 MU 1. That verbose judgment came to nothing – it was all about known law which any law student can find in the textbooks. But he had earned for himself a place in infamy. This is what I have noted in my book How to Judge the Judges, Second Edition, Sweet & Maxwell Asia, p 8:

It was not the judgment that was criticized (it could even be impeccable) but the way the trial was conducted which attracted so much adverse comment and disapproval from television broadcast abroad and from the international press. The remarks and behaviour from the bench: like when the lawyers for the defence were threatened with contempt of court, in fact one of the defence lawyers was actually charged with the offence, and with the judge being difficult with the witnesses and counsel for the defence at almost every turn of the trial, gave the impression to the media and to those who were there that the judge was one-sided. It did not matter that the judge thought he was not. As Lord Devlin observed, “The judge who gives the right judgment while appearing not to do so may be thrice blessed in heaven, but on earth he is no use at all” (Patrick Devlin The Judge, p 3). Mr. Justice Augustine Paul, like the infamous Judge Jeffreys before him, by the manner in which he had conducted the trial and his behaviour on the bench brought ignominy and embarrassment to the reputation of the courts of this country. The decision could be set aside for apparent bias: see Exparte Pinochet Ugarit (No 2) [1999] 1 All ER 577 (HL(E)).

Augustine Paul FCJ- the judge who misses the point altogether

This time around he did it with 64 pages, on A4 size paper, of gobbledygook. This time, he did not sully his name with apparent bias. This time he did something just as bad – he blatantly disregarded Artcle 72(1) of the Federal Constitution. He had refused to apply the constitutional provision as it stands. He gave a judgment which has missed the point altogether. The late Lord Justice Salmon in an article “Some thoughts on the Traditions of the English Bar” (and I quote from the Perak Bar Bulletin, Vol. 1, No 2, December 2004) gave this advice to budding lawyers:

But remember this, in few cases, however complex, is there usually more than one point that matters. Very seldom are there more than two and never, well hardly ever, more than three. Discover the points that really matter. Stick to them and discard the rest. Nothing is more irritating to a tribunal than the advocate who takes every point possible and impossible. To do so is a very poor form of advocacy because the good points are apt to be swept away with the bad ones. Stick to what matters.

That was very sound advice to budding advocates from a very experienced judge. It seems to me to be very good advice also to judges who are not as competent as they should be. The message of Lord Justice Salmon is clear – don’t bark at the wrong tree or don’t miss the point.

Although Paul FCJ dealt with many points – like any novice lawyer – in his written judgment, there is actually only one point that really matters for the Federal Court to decide on in the present case. Any advocate with some ability will be able to tell you that. And that point is Article 72(1) of the Federal Constitution. It reads:

The validity of any proceedings in the Legislative Assembly of any state shall not be questioned in any court.

All of us ordinary folk knew what the words in Article 72(1) mean. This constitutional provision is couched in simple English without any ambiguity whatsoever so that all of us sensible people could understand. The words mean exactly what they say – no more, no less. No court, not even the Federal Court, can tell us the words mean something else. But then we have the infamous five in the Federal Court who said that the words mean otherwise. Now Paul FCJ, who was one of the five, in his written judgment tries to rationalize the ruling that they have made, which is that the speaker of the legislative assembly Sivakumar had acted ultra vires something or other – we are not told what exactly Sivakumar had acted outside his power – when he suspended Zambry and his band from the assembly. However his reasoning went askew because he missed the point entirely by citing the wrong cases which did not support what he says.

In his written judgment Paul FCJ refers to Ah Thian v Government of Malaysia [1976] 2 MU 112, at 113 where Suffian LP said:

The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of state legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.

What Suffian LP says is that Parliament, that is the legislature, is not supreme. The legislature cannot make any law which the supreme law does not allow. th other words, although Parliament can make any law, that law must not be a law which is prohibited or is not sanctioned by the Constitution. But how can this case be relevant to Article 720) which says “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”? Article 72(1) is a provision in the Constitution itself. It does not require the Constitution to sanction it. It is the Constitution itself . This case has no bearing whatsoever on the point in issue.

Next, he relies on Lim Kit Slang v Mahathir Mohamad [198711 MU 383 where Salleh Abas LP said this, at 386:

The courts are the final arbiter between the individual and the state and between individuals inter se, and in performing their constitutional role they must of necessity and strictly in accordance with the constitution and the law be the ultimate bulwark against unconstitutional legislation or excesses in administrative action.

Salleh Abas LP was speaking of unconstitutional legislation and excesses in administrative action. So, how can this be relevant to Article 72(1) which says that “The validity of any proceedings in the Legislative Assembly of any state shall not be questioned in any court”? What happens inside the assembly cannot be questioned in any court. But the law passed by the legislature itself or its enforcement can be questioned if it is shown to be unconstitutional or ambiguous. A statute is unconstitutional if it is not sanctioned by the Constitution. If a statute or any of it provisions is capable of having more than one meaning then it is the function of the court to interpret it. In the case of an administrative action, the remedy of judicial review is available.

The next case which Paul FCJ relies on is Tim Mohamed Adnan Robert v Tun Mustapha [1987] 1 MU 471 where Abdul Hamid CJ said this, at 485:

The mere fact that a litigant seeks the protection of a political right does not mean that it presents a political question. Whether a matter raises a political question; whether it has been committed by the Constitution to another branch of government is itself a matter of judicial determination because the Constitution has made the Courts the ultimate interpreter of the Constitution.

What do you think of this remark? It seams like gobbledygook to me. All that gobbledygook just to say “the Constitution has made the Courts the ultimate interpreter of the Constitution.” All of us reasonable people can understand the plain meaning of the words in Article 720). How can the court interpret the obvious meaning of the words in• Article 72(1) where there is nothing to interpret at all? “Interpret” means “explain the meaning of”. Only someone with the mentality of Humpty Dumpty would say a word means whatever Humpty Dumpty would want it to mean. The words in Article 72(1) mean exactly what they say. Only Humpty Dumpty or his ilk will say that the words mean something else.

Paul FCJ also refers to Tan Chiaw Thong J in the High Court whose judgment according to Paul FCJ was approved in the case above, at p 475:

The first authority is the case of Fan Yew Teng v Government of Malaysia [1976] 2 MU 262 and it was contended on that authority, that once a LA has dealt with a matter, in this case the matter of the appointment of the Chief Minister and who in that capacity commands the confidence of the majority of members, the Court should not interfere directly or indirectly, in the same matter. With respect, as a proposition, this in my view is obviously too wide, as the authority of the LA must necessarily be confined to matters within its constitutional and legal powers and functions.

Actually what this High Court judge was trying to say is that he did not agree with Fan Yew Teng which was a decision of Chang Mm Tat J in the High Court. Now, let us take a look at Fan Yew Teng v Government of Malaysia [1976] 2 MU 262. It was a decision on the interpretation of Article 48 of the Federal Constitution. Fan was a member of Parliament who was convicted of sedition and was fined $2,000. In his judgment Chang I said, p263:

The conviction and fine imposed would appear to bring him within the scope of Article 48 of the Federal Constitution. This Article provides that –

“(1) Subject to the provisions of this Article, a person is disqualified for being a member of either House of Parliament if –
…….
(e) he has been convicted of an offence by a court of law in the Federation ……… and sentenced to imprisonment for a term of not less one year or to a fine of not less than two thousand dollars and has not received a free pardon.”

Fan applied to the High Court to declare that he has a constitutional right to exhaust his legal right of appeal up to the Privy Council and if unsuccessful to apply to the King for a free pardon before any question as to his disqualification can arise.

He succeeded before Chang Mm Tat J who granted him the declaratory orders applied for. But Tan Chiaw Thong J, according to Paul FCJ, disagreed. So there you are. It was a case on the interpretation of Article 48 of the Federal Constitution. The question is whether Fan has to be disqualified for membership of Parliament or was he entitled to exhaust his remedy of appeal all the way to the Privy Council, even to the Agong for a free pardon, before he could be disqualified. Again, this is not a case where Article 72(1) of the Federal Constitution is concerned.

After Paul FCJ has referred to the above Malaysian cases, he followed with two Indian cases: Indian Supreme Court in Cooper v Union of India AIR 1970 SC 1318, 1320 and Raja Ram Pal v The Hon ‘ble Speaker, Lok Sabha & Ors SCC 3 [2007] 184, para. 57.

He also included a South African case, The Speaker of the National Assembly v De Lille MP & Anor ZASCA 50.

None of these foreign cases have Article 720) or its equivalent in their country’s Constitution. Therefore all these cases are irrelevant to the application of Article 72(1) of the Federal Constitution..

Whether the speaker Sivakumar has the power to suspend Zambry and his band of six is not justiciable because Article 72(1) of our Federal Constitution says that “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”. The suspension of Zambry and his band of six in the Legislative Assembly of Perak was a proceeding in the Legislative Assembly. And the Federal Constitution in Article 720) says that the validity of the proceeding in the Assembly shall not be questioned in any court. Who is Paul FCJ to question the peremptory decree of the Constitution, the supreme law of the land?

Yet, in spite of the constitutional decree of Article 72(1) of the Federal Constitution that no court shall question the validity of the proceeding in the Legislative Assembly of Perak where speaker Sivakumah had rightly or wrongly suspended Zambry and his band of six, Paul FCJ has blatantly refused to apply the constitutional provision of Article 72(1) as it stands. Defiantly, or pompously like Humpty Dumpty, he says:

……. Article 72(1) must be read as being subject to the existence of a power or jurisdiction, be it inherent or expressly provided for, to do whatever that has been done. The Court is empowered to ascertain whether a particular power that has been claimed has in fact been provided for.

So what? Even if the speaker does not have the power to suspend Zambry and his band of six, Article 72(1) of the Federal Constitution has decreed that the validity of the proceeding in the Legislative Assembly in which the speaker had suspended Zambry and his band of six from attending it, shall not be questioned in any court.

Duty and function of a judge

The duty of a judge is to ensure a fair trial. After that, the only function of a judge is to administer justice according to law.

The infamous five with Augustine Paul FCJ among them have blatantly refused to administer justice according to law in that they have refused to apply Article 720) of the Federal Constitution as it stands.

Lord Denifing in What Next in the Law, p 319 said:

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.

More so if the law is the Federal Constitution. The judges of the Federal Court have no option. They must apply Article 72(1) as it stands. If they failed to do that then they have failed to administer justice according to law. By not administering justice according to law, the judges could have breached section 3(1)(d) of the Judges’ Code of Ethics 1994.

Section 2(2) of the Judges’ Code of Ethics 1994 provides:

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

And s 3(l)(d) of the Code states:

3. (1) A judge shall not

(d) conduct himself dishonestly or in such a manner as to bring the
Judiciary into disrepute or to bring discredit thereto;

I think the words ins 3(l)(d) of the Code are plain enough – we all know what they mean. So that if a judge brings the Judiciary into disrepute or to bring discredit to it, as the infamous five Federal Court judges have done by not administering justice according to law, they could be removed from office under this provision of the Code.