On April 16, the Federal Court ruled that Perak state assembly speaker V. Sivakumar did not have the power to suspend Mentri Besar Datuk Dr Zambry Abdul Kadir and his six executive council members from the state assembly.
One retired Court of Appeal judge, whose views had often been sought by the previous Pakatan Rakyat state administration, was obviously unhappy.
In his various articles on the Internet over the Perak fiasco, Datuk N.H. Chan described the Federal Court's decision as "perverse" as it was made "in blatant defiance" of Article 72(1) of the Federal Constitution which states that "the validity of any proceedings in the Legislative Assembly of any state shall not be questioned in any court".
Chan argued that Article 72(1) is so simple that any member of the public could interpret it as the words mean what they say. He then went on to say that judges who failed to administer justice according to the law were irresponsible, bad and renegade judges.
He had also earlier described the Ipoh High Court judicial commissioner Ridwan Ibrahim as arrogant and inexperienced in constitutional law.
I find his emotional outbursts against the judges totally unnecessary. As a lawyer, his arguments do not come across to me as convincing at all. Article 72(1) may appear simple to some, but as lawyers, we are often reminded by the words of the great British judge, Lord Denning, that the English language is not an instrument of mathematical precision.
As I said in "Speaker's behaviour bizarre" (NST, Feb 22), Article 72(1) does not exclude any decision made by a committee of the state legislature from judicial scrutiny. Had Parliament intended it so, it would have added the words "or any committee thereof" in Article 72(1), similar to Article 63(1) which applies to the Dewan Rakyat.
The decision to suspend Zambry and the other executive councillors was the decision of the Committee of Special Privileges and not the state legislature. Even if the decision had been endorsed by the purported sitting of the legislature under the Tree of Comedy or Democracy (as differently named by opposing sides), it is questionable whether such proceedings are proceedings which fall within Article 72(1) (see Supreme Court decision in Haji Salleh Jafaruddin v Datuk Celestine Ujang & Ors 1986).
To my mind, the Federal Court's decision is a correct one as Article 72(1) does not expressly provide that the decision of a committee is not amenable to the jurisdiction of the courts. Yes, the words mean what they say.
In fact, the court always has the inherent duty to do justice if too strict an adherence to the doctrine of separation of powers can cause injustice or produce perverse results.
This is always the problem whenever unfettered power is vested in one individual alone, and we are helpless because the law seems to say so. But there should always be an exception if justice requires it to be done.
This reminds me of the incident in 1984 when someone inside the Libyan embassy in London fired at the crowds demonstrating outside its premises, killing policewoman Yvonne Fletcher.
The police did not enter the building or arrest anyone on the grounds that the Vienna Convention provides that the premises of the embassy and diplomatic agents are "inviolable".
But Lord Denning asked, if an embassy is on fire and likely to spread to adjoining premises, are not firemen and police entitled to enter the premises to put out the fire and save the adjoining properties?
Indeed, if a foreign diplomat starts to shoot at shoppers and police in a Kuala Lumpur shopping mall, are not our policemen entitled to shoot back at him?
Likewise, if one morning the Dewan Rakyat speaker Tan Sri Pandikar Amin Mulia wakes up and then decides to suspend many Pakatan members of parliament on the most ludicrous grounds so that Barisan Nasional will have two-thirds majority of that house to amend the Federal Constitution, can our courts not intervene?
Is it acceptable if later the speaker defends his actions at a press conference seated together with the BN president?
That is why I have always told my friends in Pakatan that they should practise what they preach. If you say you are for a strict separation of powers, then Puchong MP Gobind Singh Deo should not even have sued Pandikar Amin albeit the applicable laws and facts are poles apart from the Perak fiasco.
It is as good as saying you are against the Internal Security Act and Sedition Act but, at the same time, lodge police reports against those you think have acted against these laws.
Pakatan should not blow hot and cold. They should not quod approbo non reprobo (approbate and reprobate).
Today is Word Press Freedom Day. You cannot say you believe in press freedom and, at the same time, ban certain newspapers critical of you from your press conferences.
If prior to Sept 16 when Pakatan and their legal experts held the view that the king could dismiss the prime minister without a vote of no confidence in the Dewan Rakyat if the king was satisfied through other means that the prime minister had lost the confidence of the majority in the Dewan Rakyat, then these same people should not be so critical of the very same means employed by the Sultan of Perak when he decided to appoint Zambry as menteri besar.
If Pakatan strongly believes in freedom of association, then they should not be using pre-signed letters of resignation to stop their elected representatives from disassociating and crossing over to other parties.
As I have also told my lawyer friends who often act for Pakatan, Amer Hamzah Arshad and Edmund Bon (who is now chairman of the Bar Council's constitutional law committee), Pakatan leaders should behave like gentlemen rather than sour grapes.
Having lost the party-hopping game which they first started, they should learn to accept their defeat gracefully and wait till the next general election or for some other representatives to hop over to their side just like in America, where criss-crossing by the Republicans and Democrats is accepted without any question if one truly believes in freedom of association.
I wonder what Pakatan will say if tomorrow three BN representatives decide to hop over to them and the Sultan of Perak decides to hand over the government to Pakatan without calling for elections. Your guess is as good as mine. But one thing is for sure: my views expressed here will remain.
Published in the New Sunday Times, 03 May 2009
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