The case that made Pakatan vulnerable and defensive

Not since Anwar’s case ten years ago, have the public been so upset with the court rulings, which seemed bias and predictable. Having a former Umno man on top of the judiciary did not help public perception at all, despite all the publicity given to the latest promotion of judges based on merit. Overhead someone in the coffeeshop mentioning about how senior Justice Sri Ram is, having been sidelined for 15 years, with many of his juniors promoted much earlier.

Some of us might have given up on our judiciary, but the court of public opinion has a retired Court of Appeal judge who is known for his independence and sound judgment. He had so far given his unofficial judgments pointing out the obvious mistakes and misjudgments and in the process teaching us how to judge our judges.

"I don’t have to tell you how to judge the judge. You must know by now how to do it if you have read my articles in the internet. You will know he is a bad judge if he behaves unfairly to one side as against the other. It is your perception as a member of the public that matters and not what the judge thinks of himself. A judge who does not appear to be fair is useless to the judicial process. As such he is a bad judge and is therefore unfit to sit on the bench. The other essential qualification of a judge is to administer justice according to law. That said, we can now judge this judge.

Article 72, Clause (1) ofthe Federal Constitution clearly states:
72. (1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court. "

His frank and full legal explanation can be found in:

limkitsiang: When justice is not administered according to law by NH Chan

The following is easier for laymen like me to understand:

Malaysia-Today.net - Urgent Judicial Review Needed to avert Injustice in Perak Assembly
Posted by admin
Thursday, 16 April 2009 16:47

Federal Court judgment in favour of Election Commission is flawed and must be reversed.
By Kim Quek

The Federal Court appeared to have erred when it ruled on April 9 that the Election Commission (EC) could overrule the Speaker’s acceptance of resignations in the Perak State Assembly.

The Court’s decision was in response to an urgent application by three assemblymen who wanted a declaration whether it was the EC or the Speaker who had the final say over their disputed resignations. The Speaker had earlier accepted their resignations based on their pre-signed letters to this effect, but they – Jamaluddin Radzi, Osman Jailu and Hee Yit Foong – claimed that their resignations were invalid.

The court’s error appears to have sprung from a misinterpretation of the Perak State Constitution, Article XXXVI, Clause (5), which states:

“A casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy.”

The main purpose of this clause is actually to stipulate that a) a vacancy must be filled when it arises and b) it must be filled within 60 days. The words “from the date on which it is established by the Election Commission that there is a vacancy” is actually intended more for the purpose of defining the period of 60 days rather than for empowering the EC to be the final arbiter as to whether a resignation in the legislature is valid or invalid. If it is the latter, it would have been so stated in unambiguous language.

When the court says “The Election Commission is the rightful entity to establish if there was a casual vacancy in the Perak state legislature”, it does not really address the issue. The crux is not whether the EC establishes a vacancy – for that is obvious as without a vacancy you can’t have a by-election - but how it establishes a vacancy.

A vacancy is established when there is a resignation. But who receives the resignation? Surely, it is the Speaker. If there is an argument over a resignation, which authority should deal with it? Surely, it is also the Speaker, failing which, it is the Assembly.

Can the EC poke its nose into the mechanism through which such matters are resolved in the legislature? Surely not, for that would amount to an intrusion into the autonomy of the legislature and a violation of the fundamental constitutional principle of separation of power. Such privileges of the legislature are clearly guaranteed under the Federal Constitution, Article 71, clause 1, which states:

“The validity of any proceeding in the Legislative Assembly of any State shall not be questioned in any court.”
If even the judiciary cannot meddle into the affairs of the legislature, can the Election Commission do that?

So, when the Speaker, who acts on behalf of the Assembly, notifies the EC that an assemblyman has resigned, the job of EC is pure and simple – declare that a vacancy exists and arrange for a by-election within 60 days. It is the height of absurdity for the EC to brush the Speaker’s such notification aside, just because the assemblyman concerned sends in a letter disputing the validity of his resignation, as happened in the case of Jamuluddin Radzi and Osman Jailu when EC declared their respective seats as not vacant on 4th Feb 2009.

The present Federal Court ruling allowing the EC to over-ride the state legislature has not only undermined the autonomy and independence of all state assemblies, but will also open a dangerous gateway for EC to encroach into the sacrosanct preserve of the nation’s supreme body – Parliament. This judgment being from the nation’s highest court, it will stand as precedent to guide future judgments in all courts on this issue and it therefore amounts to a distortion to our constitutions.

The immediate impact of this judgment on the current political impasse in Perak is serious, as it will unjustly and unconstitutionally alter the balance of power in favour of Barisan Nasional once the Assembly is convened, which is expected to be imminent.

It is therefore imperative that an urgent application be made for a judicial review now to rectify this constitutional distortion to avert imminent injustice in the Perak Assembly as well as to protect all legislatures including parliament from undue interference from the EC in the future.

But if we look at the cases, both adjudged and pending, it all started with the case involving the resignation letters of the three State Assemblymen. If the court is perceived to be bias towards BN, this must it. The whole power grab hinges on the validity of the letters. If they are prepared to go against public opinions, then there is nothing much the public can do but teach them again and again at the by-elections and the next general elections.

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