A Clever, Conveniently Contradictory and Convoluted Judgment

this is in reference to my post ‘double standard from the judiciary‘ two days ago, where i CnP an article from malayasiakini’s kim quek. martin jalleh, a prolific writer friend, after reading kim quek’s article, had written the following.

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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!

Martin Jalleh
(10 Sept 2009)