When the highest court in the land could bring down the Government of the day

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 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 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 realise 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 (pounds) and that sum was paid out of the funds of the trade union. 23,000 (pounds) 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 thereafter 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 – 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?

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NH Chan, a much respected former Court of Appeal Judge, is a gavel of justice that has no hesitation in pounding on Federal Court judges with wooden desks for heads. Retired from the Judiciary to become the People’s Judge. Wrote the explosive “Judging The Judges”, now in its 2nd edition as “How To Judge The Judges”. Once famously hinted at a possible “case match” between lawyer and judge by remarking that “something is rotten in the state of Denmark” (see Ayer Molek Rubber Company Berhad & Ors v Insas Berhad & Anor [1995] 3 CLJ 359). We need more people like NH Chan. That is why you should buy PASOC and his book.

Posted on 17 April 2009. You can follow any responses to this entry through the RSS 2.0.

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21 Responses to When the highest court in the land could bring down the Government of the day

  1. borneoman

    What has become of our nations judiciary system….we are back trecking towards stoneage while others move 100years ahead.

  2. Pingback: AirKosong.com » Blog Archive » Najib would rather lose the whole Malaysia, just to keep Perak

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  7. Pingback: The gobbledegook of kangaroo court: judges’s blatant disregard & refused to apply Article 72(1) as it stand. Article 72(1) which says that “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any c

  8. Pingback: Suara Keadilan Online : English Edition » Zambry vs Sivakumar: The gobblegegook of Augustine Paul

  9. Please read here on what happened in Perak! Sila baca di sini mengenai situasi di Perak!


  10. To Rohan and LayerBaru,

    Kudos to both of you on your deep understanding of the doctrine of check and balance in our system. I wonder what your opinion is on the various legislation, particularly the ISA, where the Court's power to review the Executive's power to detain citizens without trial is taken away by the Parliament? Isn't that depostime (to borrow your term)? Where is the check and balance in this matter?

    Would love to hear from either or both of you on this one.


  11. chris

    comes next election, comes the army i'm afraid. and they are working on it now.

  12. LayerBaru

    Nice comment Rohan.

  13. The Court owed a duty to people to uphold justice and maintain the law and order. Not to create despotisme. If the Court estopped from deciding the Perak Crisis, include to check and balance the Speaker's power in the legislature, the state would become a failed state.

    As we can see even the head of the legislature himself refer his cases to Court to arbiter the dispute.

    This is what the experts called the governance of the Court. Should we delimit the power of the Court to govern? Yes. But we shall accept if the nation shall fail and despotisme will rule.

  14. Yvonne Young

    To be fair, one also needs to look at the article written by Mohamed Hanipa Maidin (one of the lawyers acting for the Speaker) in Malaysian Insider: http://www.themalaysianinsider.com/index.php/opin

    "Sebenarnya Zambry telah memohon sepuluh (10) perintah Mahkamah dan dari sepuluh perintah tersebut Mahkamah hanya membenarkan dua (2) perintah sahaja. Dua perintah yang dibenarkan oleh Mahkamah adalah seperti berikut:

    Pertama, perintah membatalkan keputusan Sivakumar yang menggantung dan melarang Zambry hadir di DUN Perak selama 18 bulan.

    Kedua, perintah membatalkan keputusan Sivakumar yang menggantung dan melarang enam exco Zambry untuk hadir di DUN Perak selama 12 bulan adalah terbatal dan tak sah.

    Lapan permohonan Zambry tidak dilulus Mahkamah.

    Itu sahaja dua perintah yang Mahkamah Persekutuan benarkan pada 16 April lalu. Tidak lebih dari itu. Apa sahaja kenyataan dari peguam Umno selain dari dua perintah tersebut bukanlah perintah Mahkamah sebaliknya adalah kenyataan mereka yang tidak berasas."

  15. bengaun

    Bravo!!!! All the late Malaysian Judges in heaven will be clapping and smiling Your Honour NH Chan……Let's spread the news and hope the errant judges as well as the AG start to have dreamscapes and nightmares!!!! Again I bow and say thank you your honour…there is still hope for 'real Malaysians'…

  16. R.Venugopal

    An excellent article that makes everyone understand from the laymen to the judges of the nation. Is this article not sufficient for the judges who made the decision to repent and review the case. People or rakyat are hungry for information and truth, it is time the authorities stop fooling the rakyat frequently. Even the rakyat have their own KPI to measure the performance of the judges. It is time for the judges to write your true judgement with a tinge of wisdom instead of reading the text prepared by others or carrying out instructions from somewhere.

    Mistakes like this are not good for the goverment of the day and the whole world will laugh at us for the judgements we produce.

  17. Ex Neutral

    I'm not sure if the country can wait for GE13, but at least more people should step out and be counted. Again the time when we think that I'll give my vote AGAINST umno/bn may not be enough anymore. Love your family, your future, your country? Then do more.

  18. sinniah

    This article should be translated into Bahasa, Chinese, Tamil and every other language spoken in Malaysia and put in all the blogs, and the readers can print, copy and distribute this to the general public. LET THE CITIZENS BE AWARE.

  19. MyBlog

    I think it is left upto the 13th GE, the current PM has to decide, short terms gains for the lost of the war OR do the right thing and you will still stand a chance

  20. Wow. Good write up there by NH Chan J.

  21. Ram

    Wonderfull article.Well spelled out.So what next Mr.speaker?The electorates are behind you.Uphold the constitution.Uphold democracy.