The regurgitation of not administering justice according to law in the written judgment of Nik Hashim FCJ in Jamaluddin & Ors v Sivakumar

Flashback

To refresh your memory, I refer to the report in the New Straits Times of Friday, April 10, 2009:

PUTRAJAYA: The Federal Court has declared that three assemblymen who quit their parties are still members of the Perak state legislature. This follows an unanimous ruling by a five-men bench yesterday which ruled that the Election Commission had the authority to declare a seat vacant.

“The Election Commission is the rightful entity to establish if there was a casual vacancy in the Perak state legislature,” said Federal Court judge Tan Sri Alauddin Mohd Sheriff. Sitting with him were Datuk Arifin Zakaria, Datuk Nik Hashim Nik Abdul Rahman, Datuk Seri S Augustine Paul and Datuk James Foong.

Last month, Party Keadilan Rakyat’s Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Jailu (Changkat Jering), together with DAP’s Hew Yit Foong (Jelapang), filed an urgent application for the Federal Court to decide their matter. The three wanted a declaration whether it was the Election Commission or the Perak Speaker (V Sivakumar) had the final say in determining a vacancy.

In February, Sivakumar, using resignation letters signed by the three, had declared the seats vacant. He informed the Election Commission, but the commission refused to hold by-elections on the ground that there was ambiguity over whether the assemblymen had resigned voluntarily.

Following this newspaper report, I wrote an article which was posted on several portals on the internet titled “When Justice is not administered according to law”. This is what I said:

Was the Federal Court right? Before you can judge the judges of the highest court in the country, it is necessary for me to apprise you of the law applicable to the question which is the Constitution of Perak.

I then pointed out that the law which is applicable is Article 31, Clause (5) of the Perak Constitution which reads:

XXXI. (5) A person who resigns his membership of the Legislative Assembly of this State or any other State shall, for a period of five years beginning with the date on which his resignation takes effect, be disqualified from being a member of the Legislative Assembly of this State.

By this provision, Article 31(5), I pointed out in my article that an assemblyman who resigns his membership of the Legislative Assembly is disqualified from being a member of the Assembly for a period of five years from the date of his resignation.

In my article, I also showed that Article 33(1) says:

XXXIII. (1) If any question arises whether a member of the Legislative Assembly has become disqualified for membership, the decision of the Assembly shall be taken and shall be final.

This is what Article 33(1) means. It means that when a question arises whether a person is disqualified from being a member of the Assembly, the decision (meaning “the vote”) of the Assembly is final.

Incidentally, Article 35 stipulates that an assemblyman can resign by simply writing to the Speaker. This is what it says:

XXXV. A member of the Legislative Assembly may resign his membership by writing under his hand addressed to the Speaker.

I concluded my article with this observation:

The above is simple enough for all of us to understand. But then, all of us are wondering how on earth the Federal Court could have decided that the “(t)he Election Commission is the rightful entity to establish if there was a casual vacancy in the Perak state legislature”? Don’t you all feel superior to the judges of the Federal Court because you know the correct answer whilst the highest court gave a wrong decision. So you see, when you know how to judge the judges you would be able to separate the wheat from the chaff among our judges. The chaff, you will discover, may not be up to your expectations.

The regurgitation in the judgment of Nik Hashim FCJ

The dictionary meaning of “regurgitate” is “repeat information without understanding it”.

Almost everyone knows, because they have read the above article which informed them of the relevant law applicable, which is that it is the Assembly who decides the question of the disqualification of a member of the Assembly and not the Election Commission. It is only when a member has been disqualified would there be a vacancy in the Assembly.

Now that we, the ordinary people, know the law we could very easily judge the competence of these judges of the Federal Court.

Recently, they have handed down a written judgment dated June 8, 2009 which was delivered by Nik Hashim bin Nik Abd Rahman FCJ as the judgment of the court.

The judgment appears to be oblivious of the fact that the general public is now aware of the law applicable. Since the people has been apprised of the law it would be foolish for any judge to give a judgment which is nothing but hogwash – it was crassly insensitive of the judges to try to pull the wool over the eyes of the knowing public.

But to our surprise, this is exactly what Nik Hashim FCJ did. As usual the Federal Court has missed the point again. Recently, we discovered it was Augustine Paul FCJ who has this propensity. Now it is Nik Hashim FCJ who has the same propensity.

He said:

The issue relating to question No. (1) is whether it is the Election Commission or the Speaker who has the right to establish if there is a casual vacancy of the State Legislative Assembly seats. To answer the question, we have to consider the provisions of Article 36(5) of the Perak Constitution and section 12(3) of the Elections Act 1958, and the meaning of the words “casual vacancy” and the word “establish”.

Article 36(5) of the Perak Constitution 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.”

Section 12(3) of the Elections Act 1958 reads:

“In relation to a vacancy which is to be filled at a by-election, a writ shall be issued not earlier than four days and not later than ten days from the date on which it is established by the Election Commission that there is a vacancy.” (emphasis added)

A “casual vacancy” is defined in Article 160(2) of the Federal Constitution to mean –

“a vacancy arising in the House of Representatives or a Legislative Assembly otherwise than by a dissolution of Parliament or of the Assembly.”

The word “establish” is defined in the Oxford Advanced Learner’s Dictionary, 6th Edition to mean:

“to discover or prove the facts of the situation; ascertain.”

And the Shorter Oxford English Dictionary defines the word “establish” to mean:

“to place beyond dispute; to prove.”

In construing the Perak Constitution, the provisions of the other State Constitutions and the Federal Constitution need to be considered. By comparison, the State Constitutions of Kelantan (Article 46(5)), Malacca (Article 19(5)), Pahang (Article 26(5)), Penang (Article 19(5)), Perlis (Article 55(5)), Sarawak (Article 21(5)), and Kedah (Article 53(5)) contain provisions similar to Article 36(5) of the Perak Constitution which states that “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”, whereas the Constitutions of the State of Johor (Article 23(5)), Negeri Sembilan (Article 56(5)), Selangor (Article 70(5)) and Terengganu (Article 44(5)) provide that “A casual vacancy shall be filled within sixty days from the date on which it occurs.”

And blah blah blah, the verbiage continues from page 11 to page 18 of his 20-page judgment where he concluded, thus:

Hence we unanimously ruled that the decision of the respondent Speaker declaring the three State seats of N.59 Behrang, N.14 Changkat Jering and N.31 Jelapang vacant was unlawful and therefore null and void as the decision was contrary to Article 36(5) of the Perak Constitution. Accordingly, our answer to question No. (1) is in the affirmative. Having answered the question we found that there is no necessity to answer question No. (2).

Now that you know the law which is applicable, you are in a position to judge the five judges

What do you think of the quality of these judges of the highest court in the country? You must think that after all the rigmarole and after all the effort in writing this 20-page judgment, they could have done better. But no, they still missed the point altogether. All of us ordinary folk knew the answer. But not these five judges.

Of course, the point is Article 33(1) of the Perak Constitution which says that when a question arises whether a person is disqualified from being a member of the Assembly, the decision (meaning “the vote”) of the Assembly is final. It is not the Speaker nor the Election Commissioner who determines if a person is disqualified from being a member of the Assembly.

If a person resigns his membership of the Legislative Assembly, he shall be disqualified from being a member of the Assembly for five years from the date of his resignation: see Article 31(5).

Article 35 only says that a member can resign simply by writing to the Speaker.

So that if any question arises as to the resignation of the three turncoat Assemblymen – a person who resigns his membership of the Assembly is disqualified for five years from being a member of the Legislative Assembly – the decision of the Assembly by a vote being taken on their disqualification shall be final.

It is only after a member of the Assembly has been disqualified for membership of the Legislative Assembly that a vacancy of the member’s seat in the Assembly arises. It is only then that a casual vacancy arises. And by Article 36(5):

XXXVI. (5) 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.

In my article which I wrote shortly after the oral decision of the Federal Court in early April of this year, I had pointed out the misreading of Article 36(5) by the highest court in the land. This is what I said:

A casual vacancy means an occasional vacancy which can be filled simply with a by-election. But the question whether the turncoat assemblymen have resigned or not will have to await the outcome of the decision of the Assembly which decision shall be final: see Article XXXIII, Clause (1). It is only upon receiving the decision of the Legislative Assembly will the Election Commission be able to establish that there is a vacancy. As it turns out the Federal Court have put the cart before the horse – in this case, just the cart without the horse – which is that the court has held that it is for the Commission to establish that there is a casual vacancy without waiting for the decision of the Assembly whether the three turncoat assemblymen have been disqualified for membership of the Assembly by resignation.

By not administering justice according to law is this Federal Court’s besetting sin. The judges of this court have, therefore, breached seciton 3(1)(d) of the Judges’ Code of Ethics 1994 for bringing the Judiciary into disrepute or to bring discredit to it, which is a ground for their removal from office by virtue of section 2(2) of the Code of Ethics.

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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 22 June 2009. You can follow any responses to this entry through the RSS 2.0.

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8 Responses to The regurgitation of not administering justice according to law in the written judgment of Nik Hashim FCJ in Jamaluddin & Ors v Sivakumar

  1. leeandy

    apa peduli betul tak betul, adil tak adil…kita hanya tau "Bi" "Nang"…yg lain tak peduli la

  2. oghekapung

    We are supposed to address them 'your honour'in court or Yang 'Arif(meaning knowledgeable).At the top we have Lord Kangkung whose reputation nowhere near the late Tun Suffian and Tun Salleh Abbas.Who actually has destroyed this beloved nation of ours if not the bloody UMNO? They are the one who ruled this country from the dawn of independence which we've got on a silver platter.Out of approx 52years,almost 23years was under TDM.Of late the 3 judges of the appeal court ruled in favour(unanimous) of Mamak Zambry.Maybe they were ordered from the highest appointment in the judiciary to do just that.But why are the judges nowadays becomes a stupid bunch of people? Kedaulatan undang-undang and Keluhuran Perlembagaan(as stated in our rukunegara. These are only writings and pieces of paper. It can't materialise if we raped our own rukun.I remember two slogans,my favourite.'BERSIH, CEKAP DAN AMANAH' which means sapu bersih dengan cekap dan rakyat masih fikir kita amanah. Then we have'KEPIMPINAN MELALUI TELADAN' which is what exactly they are doing.They take the examples of their leaders.The leaders are corrupt as being admitted by our lord that he did so.Apa lagi the other judges follow suit.Still I salute some of the judges tetapi seekor kerbau bawa lumpur semuanya terpalit.After the judgement all 3 were made Tan Sris. I'm not sure because I donot read UMNO papers,but that's what I heard.They have always been rewarded for their deeds, promotion and honours and awards.Tapi mereka tak malu to receive these awards and at the same time they know they don't deserve it, this bloody bunch of pariah class judges.They must realise that they are not being paid by UMNO but the rakyat who sweat just to get 'sesuap nasi',providing them with all the perquisites such as big cars,fat pay,no need to pay road tax and tolls are free.Bloody goons are never grateful.Sorry bahasa rojak but that is what is to-day.Our beloved MALAYSIA,can't we help to restore situation?

  3. bengaun

    It's indeed a very sad day when that judgement was passed….maybe the spirits of the late judges may rise and give incessant nightmares to those five infamous judges. Datuk James Foong is a great disappointment. Keep up the good work your honour and may the Good Lord Bless U !

  4. ong

    After reading the many articles written by Retired Judge (Thousand apologies for referring to NH Chan as retired judge in view of the current unfavorable perception of judges) N H Chan, it appears to me that any Tom, Dick or Harry, including those with only half a brain, can become a judge in the present Malaysian Judiciary. Of course those with the caliber of N H Chan become good judges, whilst those with half a brain end up like those judges who are the subject of N H Chan's articles.

    I can envisage a situation such as this :-

    N H Chan meets a new acquaintance who has no knowledge of his (N H Chan) career background. This new acquaintance asks N H Chan about his profession before retirement. N H Chan answers that he used to be a judge in the Malaysian Judiciary and rose to be a Judge of the Malaysian Appeal Court.

    This new acquaintance, a young person, is not familiar with the high standards of the Malaysian Judiciary many years ago, but has been reading about many of the recent and current judgments of the Malaysian Courts, then gives N H Chan a funny look and comments :- Oh! You were one of those!

    Mr N H Chan certainly has cause to be really upset with the current bunch of judges.

  5. ketuanan rakyat

    They don't mind if you call them incompetent but they feel offended if you call them corrupt. You people can condemn as much as you want but they and their future generation will enjoy a good life and that is all that matters to them. The one person who brought so much corruption to this nation is none other than that Apanama. All are fully played out for the nation to see and the effects will continue long after he lies rotting in the ground. 30 year of mis-ruling the nation and how long will it take to recover if at all?. That guy has so much chips on his shoulder that he could not rule with a clear mind and cannot rule as a good leader should. We can clearly see the differences between Singapore and Malaysia. Both started on an even footing, but one spells progress and respect and the other spells rampant corruption, bigotry and incompetence. Just as what LKY has predicted for Malaysia. Dont tell me we don't have good and capable people. They simply do not have the chance to see the light of day. Meritocracy has never been the hallmark of the governing leaders since day one but this same people demand the best that people can produce for their enjoyment and gratification.

  6. TEKUYUNG

    SANANG SAJA LAIN KALI KALU ADA KEMATIAN ADUN KA ATAU ADUN HILANG KELAYAKAN MENJADI AHLI DEWAN INDA PAYAH TUNGGU PENGESAHAN SPEAKER DEWAN YANG MULIA, SURUH ITU SURUHANJAYA PILIHANRAYA YANG TENTUKAN KOSONG ATAU TIDAK PALING BAGUS SEMUA KERAJAAN NEGERI DAN PERSEKUTUAN LANTIKLAH PENGERUSI SPR JADI SPEAKER DEWAN SENANG DIA BUAT KERJA UMNO/BN PUN JADI LAGIIIIIIIIIII SENANG.

  7. mahanji

    DPM Muhiddin was right. Everyone must pass English language in SPM. After read the article/letter/comment above, I deeply felt that , the judiciary needs revamp(proper)

  8. 4RAKYAT

    wah…so plain also cannot see ah? i taxi diver also can understand woh…(with all due respect to taxi drivers).

    corrupt judges. especially that 'hacks' augustine paul. no shame, no shame. i bet all even his family and friends silently abhor this fler…and he knows it.

    augustine paul, is it really worth it? is this an example to show to your kids? your wife? your parents? all those years of bringing you up, is this what you can give back to your parents? no shame?

    ptui..!!

    4RAKYAT