When the highest court in the land could bring down the Government of the dayBy Justice Dato’ N.H. Chan
The front page of the Star newspaper of Friday, 17 April 2009 carries this startlingly outrageous decision of the Federal Court. The headline proclaims “Court: Siva does not have right to suspend seven”. The report reads:
PUTRAJAYA: 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 executive 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-man panel yesterday, said the Speaker’s decision to suspend the seven applicants was ultra vires (outside the law) and invalid.… The other judges were Chief Judge of Malaya Arifin Zakaria and Federal Court Judges Nik Hashim Nik Ab. Rahman, S Augustine Paul and Zulkefli Ahmad Makinudin.
This is a perverse judgement 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 refused 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”.
Don’t these judges realize that they have actually done a disservice to the Government of the day? Perhaps they have never heard of the Taff Vale case.
In 1900 the English House of Lords, which as you know is the highest court in the land just as our Federal Court is the highest court in this country, handed down an outrageous decision which was unpopular to the common people of England. The judges of the House of Lords by their judgment had unwittingly done a great disservice to the Conservative Government of the day because in the general election of 1906 it was toppled by a landslide. The case which was the cause of the fall of the Conservative Government by a landslide was Taff Vale Rly Co v Amalgamated Society of Railway Servants [1901] 1 QB 170, [1901] AC 426, HL. It is best that I let Lord Denning take up the story from his book Landmarks in the Law, Butterworths, London, 1984, pp 119-121:
There was the great Taff Vale case. To understand it, you must know that the trade unions were virtually friendly societies. The members paid their subscriptions into a fund out of which benefits could be paid to members if they were ill or out of employment. Now in the Taff Vale case the railwaymen’s union called a strike at the railway station at Cardiff. The men left work and set up peaceful pickets so as to persuade others not to go to work. The trains could not run, and the company lost money. The railway were advised to bring an action against the union itself, seeking an injunction and damages. The Court of Appeal threw out the action. But the House of Lords, in a startling judgment, overruled the Court of Appeal. They issued an interlocutory injunction against the trade union itself, restraining it from setting up the pickets, and said that the railway company could recover damages which could be enforced against trade union funds. Later, at the trial itself, the damages were assessed at £23,000 and that sum was paid out of the funds of the trade union. £23,000 in 1900. What would that be now?
In the eyes of trade unions, that was an outrageous decision. It meant that the railway company could take all the funds subscribed by the members so as to meet the damages. It meant that, in future, a trade union could never call a strike, else it would be in peril of losing all its funds. It meant virtually the end of trade
unions. As G.M. Trevelyan says in his History: ‘It struck at the very heart of trade union action’.
That case had immense political consequences. At the general election of 1906 there came into being a new political party. It was the Labour party. They ran a host of candidates themselves. They pledged complete immunity for trade unions. Many of the Liberal candidates gave the same pledge. The result of the general election was like an earthquake. Liberals had 397 seats. The new Labour party had 50 seats. The Conservatives only 157. It was a sweeping victory for the trade unions.
Parliament immediately passed the Trade Disputes Act 1906. It is probably the most important Act ever put into the Statute Book. It reversed all the judicial decisions against trade unions. The Taff Vale case was overruled. No trade union could there after be sued for damages for any wrongs done by its members. Its funds were unassailable.”
I think the message of the Taff Vale case to our judges of the Federal Court should be clear enough. The electorate may decide, just as the voters did in 1906 England to the Conservative Government, to use the power of their vote to unseat the BN government in the next by-election or general election because they do not trust the judges. Poor Najib our new Prime Minister, it is the judges who have let him down. Unfortunately it would be the Prime Minister who has to carry the baby, but not the irresponsible judges who did all the damage by not administering justice according to law.
To all those judges who think they are above the law, I would suggest that they pay careful attention to the warning by Lord Denning M.R. in Gouriet v. Union of Post Office Workers [1977] 1 Q.B. 729, 761-762:
To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: “Be you never so high, the law is above you”
And the law, in the present context, is the Federal Constitution, in particular, Article 72 which states:
72. (1) The validity of any proceedings in the Legislative Assembly of any State shall not 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.
Suppose the Speaker Sivakumar were to ignore the declarative decree of the Federal Court, what then? Clause (2) of Article 72 of the Federal 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 any State or of any committee thereof”. The Federal Court can say anything they like but the Speaker is not 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. The order of the Federal Court seems to me to be a brutum fulmen which in Latin means “ineffectual thunderbolt; (action which is) loud but ineffective”. It reminds me of the words of Horace: Parturient montes, nascetur ridiculus mus which in Latin means “Mountains will be in labour, the birth will be a single laughable mouse”.
The errant judges of the Federal Court should heed the warning of the late Lord Denning, What Next in the Law, Butterworths, London, 1982, p 330:
May not the judges themselves sometimes abuse or misuse their power? It is their duty to administer and apply the law of the land. If they should divert it or depart from it a - and do so knowingly - they themselves would be guilty of a misuse of power.
And he posed this question:
Suppose a future Prime Minister should seek to pack the Bench with judges of his own extreme political colour. Would they be tools in his hand?
Pakatan to fight BN all the way for Perak
By Baradan Kuppusamy, The Malaysian Insider
The move to suspend Perak state assembly secretary Abdullah Antong Sabri today is a signal that neither the Speaker V. Sivakumar nor the Pakatan Rakyat is going to concede control of the legislature to the Barisan Nasional without a fight.
The issue was debated long and hard by top PR leaders in Penang today and the decision is to fight BN every inch of the way.
A number of PR leaders feel that since they consider the upcoming assembly “illegal,” their attendance may legitimise it.
But after heated debate the decision was taken to attend the assembly or otherwise it was felt BN would have a free hand to do what it liked.
A senior PR leader who attended the three-hour meeting said they would fight BN every step of the way.
“We have Plans A, B and C,” the leader said, promising a “climatic” outcome to the May 7 face-off between PR and BN.
The suspension of Abdullah by Sivakumar today is the first move by PR in what has become a game of wits.
Sivakumar first suspended Abdullah on March 3 for failing to take his instruction and he suspended him again today for sending out notices to all representatives for the assembly to convene on May 7.
“I am the Speaker and I am acting in accordance with all the rules and regulations of the Perak constitution,” Sivakumar said when contacted.
He declined further comment, citing possible legal complications.
Earlier, he told reporters in Ipoh that he had appointed Mohd Misbahul Munir Marduki as secretary of the state assembly.
He said the “purported sitting” on May 7 should not proceed pending further clarification.
Meanwhile, Ipoh Barat MP M. Kulasegaran said Sivakumar was neither informed nor consulted on the May 7 sitting.
“This act of calling an assembly sitting over the head of the Speaker is not only blatant but a direct usurpation of the powers of the Speaker by the mentri besar,” he told The Malaysian Insider.
“This is a coup… no less. This is against democracy,” he said.
He also said the courts had no business ruling on issues involving the legislature as the constitution clearly bars any interference by the judiciary.
“We are surprise and shocked by recent court decisions,” he said.
On Thursday, the Federal Court lifted Sivakumar's suspension of the MB and his six executive councillors from the state legislature.
The ruling has sparked controversy because it appears to ignore the principle of separation of powers and constitutional provisions which say proceedings of the legislature cannot be questioned in a court of law.
Although Sivakumar has suspended Abdullah and appointed another secretary who is presumably favourable to him, it remains unclear if the suspension will stop BN from convening the assembly sitting.
It is learned that the first matter on the agenda is the removal of Sivakumar as Speaker because being hostile to the BN, he can — theoretically — use the powers of his office to ruin any moves by BN to claim legitimacy in its power grab.
When the assembly first convened after the March 8 general election last year the first matter in the order of business was the election of a Speaker.
That part of the assembly was chaired by Abdullah and Sivakumar was elected Speaker.
Sources said that since the first matter is the election of a new Speaker, either Abdullah or even the Deputy Speaker, the former DAP assemblywoman Hee Yit Fong, could chair proceedings.
They said a separate lawsuit to determine whether BN's Datuk Zambry Abdul Kadir or PR's Datuk Seri Nizar Jamaluddin is the legitimate MB could be brought forward to the end of this month.
If the court holds that Zambry is the lawful mentri besar, it would remove the final legal hurdle for BN.
Nothing is lost
By Selvarajasomiah
April 17th.2009
I believe by this Federal court decision the court has set a precedent as it can now review whatever the Speaker says or do even though the Speaker’s power is paramount.
Anyway, the decision of the courts must be respected, but, has anything changed in the Perak State Assembly from this Federal court decision? No, nothing has changed guys. The Speaker’s powers is still intact and decisions are still his to call. Speaker V. Sivakumar is still the boss in the Assembly and he can still frustrate Zambry Kadir and Gang who have defied Perak State Assembly procedures with new charges for contempt of the Assembly.
As long as Speaker V Sivakumar conducts the State Assembly proceedings according to procedures he cannot be frustrated by Zambry & Gang as the Speaker remains the final interpreter.
So, NOTHING IS LOST as the Speaker is still V Sivakumar although Sivakumar has been denied his right to suspend Zambry & Gang.
Indeed the next State Assembly sitting will be evidence that the Perak State Constitution is still supreme in the state of Perak.
posted by Jeyapalan.T.S.Mahesan {jeyapalantsmahesan.blogspot.com}
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