A Clever, Conveniently Contradictory and Convoluted Judgment

by Martin Jalleh

The perversion of justice in Bolehland continues to persist with the judiciary playing politics to please and pander to the will of the powers that be. 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.

The judiciary descends into abysmal depths as it blatantly disregards constitutional provisions and treats the doctrine of separation of powers with deference,. 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.

Striking out a civil suit by Perak Pakatan Rakyat legislative assembly speaker V Sivakumar against BN speaker R Ganesan, 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!

Confusing Contradiction

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).

Indeed, one is forced to ask how is it possible that in One Malaysia one consistent interpretation of the law by the judiciary is sorely lacking or even non-existent! Is whimsical interpretation of the law part of the “judicial renaissance” that the Chief Justice is preaching about and supposedly pushing for?

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.”

“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.”

Kim Quek rightly concludes that from the operative words “proceedings” in Clause 1 (of the Article) 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.

“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.”

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. 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!

  1. #1 by KeenWatcher_01 on Friday, 11 September 2009 - 6:19 am

    Malaysia has the highest number of “professional and qualified ” doctors ie Spin Doctors. This should earn a place in the Guinness Books of Record 2009!

  2. #2 by TheWrathOfGrapes on Friday, 11 September 2009 - 8:44 am

    Another aptly and artfully articulated article – always admire author’s alliterations.

  3. #3 by Jeffrey on Friday, 11 September 2009 - 9:39 am

    There is something cardinal in the administration of laws and courts. It should dispense justice – and be seen so. What is just or justice then?

    In the vicissitudes of social life where burdens or rewards fall to be distributed, the general principle is that individuals, parties and litigants are entitled in respect of each other to a certain relative position of equality or inequality in proportion or balance to the circumstances.

    What justice exactly boils down to is (since the time of Aristotle) encapsulated in this precept – (1) treat like cases alike; and (2) different cases differently.

    When the court interpreted article 72 of the Perak State Constitution in two diametrically contradictory way –

    · that the court could not interfere and review with what had been decided by the BN Perak assemblymen at their sitting on May 7 when they ejected PR Speaker Sivakumar, and

    · that the court could interfere and review with what had been decided by the PR Perak assemblymen at their sitting when they ejected BN Speaker Ganesan as not the rightful speaker,

    what the court system had done was violating (1) in treating “like” cases differently….

    Why the case cannot be brought under (2) of ‘treating different cases differently’ is because PR majority assembly cannot – and ought not – be treated differently from a BN majority assembly for purposes of interpreting article 72 of Perak Constitution to impute judicial interference/review is not permitted in the first mentioned instance/proceedings of BN assemblymen’s actions against PR speaker but not the second case/proceedings of PR assemblymen’s actions against BN Speaker when judicial interference/review is interpreted contrariwise as being permissible….

    The reason for this is also simple – the fact whether the assemblymen were BN affiliated or PR affiliated is not a rational differentia (or a rational differentiating factor) to distinguish with how article 72 of Perak Constitution will apply to the state assembly proceedings. In short the difference in political affiliation bears no relevance or rational nexus/connection to the issue of whether or not the court could interfere and review the assembly proceedings for purposes of divining (interpreting) the intent and effects of article 72.

    So when one treats essentially “like” cases here “differently” instead of “alike” with their differences of political affiliation bearing no rational basis to justify treating PR assemblymen “differently” from BN assemblymen, justice is not seen administered. In fact injustice is.

    When such selective administration of law is repeated enough, sections of people will lose confidence in and be alienated from administration of law, will lose respect of it and will soon defy it, potentially leading to a breakdown of law and order.

  4. #4 by ktteokt on Friday, 11 September 2009 - 9:51 am

    The Federal Constitution – another piece of “toilet paper” at the disposal of UMNO!

  5. #5 by Loh on Friday, 11 September 2009 - 11:20 am

    ///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”!/// Martin Jalleh

    Justice Azahar ‘s conclusion shows that he considered it legal to remove the speaker by physically carrying him out of the Assembly. So the group used muscle power to make the Speaker absent in order that the deputy speaker could be said to have legally deputised the Speaker.

    Clearly the way the Speaker was dragged out of the hall was a criminal act, and yet the Judge considered it legal. The state assembly now becomes a battlefield to decide issues not by majority votes but by brute force. From May 7, parliament and the state assemblies have become battlefields where brute force reigns. That was why Karpal Singh was not allowed free movement in the parliament, and the gangsters did not have to face the law.

    Najib’s intention to grab power in Perak confirms to the world that the Judges in the country are implements of Najib. The laws are selectively implemented and selectively interpreted. That is truly 1Malaysia, the only kind in the world that claims to practice parliamentary democracy with constitutional monarchy where the participation of ruler could alter the interpretation of the constitution.

  6. #6 by Winston on Friday, 11 September 2009 - 3:54 pm

    I think that the Ipoh constitution backfired on UMNO.
    In fact, when they were in control of the whole Malaysia, they made very certain the Speaker has “uncheckable” powers. And they are not shy about using his absolute power to whack the opposition.
    Now, when the opposition is running the state and is using the same power against them, they cried foul!
    What idiots are these people!
    And they are using all sorts of ways to wrest the state from the opposition, regardless of whether it’s legal or otherwise!
    Let the BN BeEnded!

  7. #7 by cseng on Friday, 11 September 2009 - 5:50 pm

    Famous physicist Einstein defined insanity by “repeating similar action but expecting different results”. In bodoh-land, similar action does produce different result, therefore we were called bodoh-land.

    It is also equally insane to expect just judgment from a totally corrupted system, key institutions in bodoh-land are parts of corrupted system.

    We are seeing things are way out of order, is not the case of PR MB vs BN MB, it looks more like whole government vs. PR MB. In TBH inquest we see the similar pattern, is whole government vs. TBH. All avenues to seek fairness/justice are shut, the only option open is government change, untill then keep shouting!.

  8. #8 by ekompute on Friday, 11 September 2009 - 10:15 pm

    “The perversion of justice in Bolehland continues to persist with the judiciary playing politics to please and pander to the will of the powers that be. ”

    As you also mentioned, this is Bolehland what. Very soon, our economy also boleh jatuh dan ringgit boleh ditukarkan pada kadar 1 ringgit = 1 rupiah, what with so many multi-billion scandals. History will then remember this period as Zaman Kemelesetan 1Malaysia, thanks to UMNO and its pack of chowkia dogs.

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