Perak crisis: Zambry versus Sivakumar
Thu, April 23, 2009 Leave a comment
By Justice (rtd) NH Chan*
April 18, 2009
The Federal Court decision that Perak speaker V Sivakumar did not have the right to suspend BN Menteri Besar Zambry Abd Kadir and his six cabinet members is a perverse judgment. 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 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.
Voters threw out Government after Judges erred
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 was Taff Vale Railway Company versus Amalgamated Society of Railway Servants.
It is best that I let Lord Denning take up the story from his book ‘Landmarks in the Law’:
“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 and that sum was paid out of the funds of the trade union. £23,000 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 GM 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 throw out the Conservative government, to use the power of their vote to unseat the BN government in the next general election because they do not trust the judges.
What if Speaker ignores court decision?
Poor Najib Abdul Razak, 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.
The law, in the present context, is the Federal Constitution, in particular, Article 72 which states:
(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 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” – an action which is loud but ineffective.
*Justice (rtd) NH CHAN is a former Court of Appeal judge famous for his ‘All is not well in the House of Denmark’ comment regarding judicial corruption. He was then referring to High Court’s commercial division which was located in Wisma Denmark, Kuala Lumpur. The quote is based on Shakespeare’s ‘Something is rotten in the state of Denmark’. He now lives in Ipoh.