Ridwan courts infamy with his judgments — The Malaysian Insider

MARCH 12 — When Judicial Commissioner Ridwan Ibrahim put Perak state assembly Speaker V. Sivakumar in a straitjacket and curtailed his powers, two of Malaysia’s most illustrious judges must have been turning in their graves.

Tan Sri Chang Min Tat and Tan Sri Eusoffe Abdoolcader were legal giants, men of integrity, honesty, professionalism and whose legal judgments stood up to the closest scrutiny.

They were also among the judges who steadfastly upheld the position that the courts should not interfere or question the proceedings of Parliament or a state assembly, giving life to the doctrine of separation of powers between the executive, legislature and judiciary.

If Ridwan is interested, the score is 5-0 against him. A check shows that five cases have been brought before the courts by politicians seeking a variety of restraining orders and injunction.

The plaintiffs wanted the courts to stop a defendant from dissolving the legislative assembly; wanted an order of prohibition against members of the Committee of Privileges and an injunction to restrain the removal of a Speaker.

In all the cases, the courts were loath to interfere, relying heavily on Article 72(1) of the Federal Constitution which reads: “The validity of any proceedings in the Legislative Assembly of any state shall not be questioned in any court.’’

The five cases were:

• Fan Yew Teng v Government of Malaysia.
• Lim Cho Hock v Speaker, Perak State Legislative Assembly.
• Tun Datu Haji Mustapha bin Datu Harun v Legislative Assembly of State of Sabah.
• Tun Datu Haji Mustapha bin Datu Harun v Tun Datuk Hj Mohamed Adnan Robert.
• Haji Salleh bin Jafaruddin v Datuk Celestine Ujang.

In the Lim Cho Hock case, the plaintiff sought a declaration that the offices of the Menteri Besar and President of Ipoh Municipal Council cannot be held by the same person. He also wanted the court to rule that the appointment of the MB as President of the Council was null and void and that the state authority had exceeded its powers in making this appointment.

Justice Abdoolcader ruled that it was clear that the courts have no jurisdiction over proceedings of the legislative assembly.

It is not only in Malaysia that the courts have held that it was wrong and improper for actions or proceedings of the legislature to be questioned. Courts in India, Australia, Canada and New Zealand also have stayed true to this principle in cases such as Prebble v Television New Zealand, P V Narasimha Rao v State, Harnett v Crick.

So when Judicial Commissioner Ridwan Ibrahim granted an order restraining Sivakumar from convening any unlawful meetings, he was entering unfamiliar territory and he was going against legal precedent and the constitution.

Barisan Nasional officials and their supporters argue that Sivakumar overreached and acted outside his jurisdiction when he accepted the undated resignation letters of three Pakatan Rakyat lawmakers.

They also argue that Sivakumar’s decision to suspend Datuk Zambry Abdul Kadir and his six executive council members was unconstitutional and against the state constitution.

The only snag is that the Perak state constitution makes clear that “there shall be freedom of speech and debate or proceedings in the assembly and such freedom of speech and debate or proceedings shall not be liable to be impeached or questioned in any court or tribunal out of the assembly’’.

So can nothing be done against a rampaging Speaker? Isn’t there some action that can be taken against a partisan Speaker?

Of course, there is. Just not through the courts.

So how did Barisan Nasional react after the courts ruled in the five cases that proceedings in the legislature should not be questioned by the courts?

They did nothing because they were the beneficiaries.

The arrogance of a novice judge

NH CHAN is 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’.

I must say I was taken aback by the astonishing ruling of Ridwan Ibrahim, a High Court judicial commissioner.

He ruled that the lawyers “engaged by (Perak assembly speaker V) Sivakumar (left) had no locus standi to represent him in an application by Perak Menteri Besar Zambry Abdul Kadir, who is seeking a declaration that Sivakumar’s decision to suspend him and his executive council was unconstitutional and unlawful”.

I am appalled at the arrogance of the judge. I am quite sure he is not an expert in constitutional law and even if he were, in a case of such great public importance to the nation, it is wise to listen to the views of the other side. Especially in this case, when eminent counsel Tommy Thomas was available to assist him.

The judge could have invited him to submit as an amicus curiae - in Latin it means ‘friend of the court’ and when the phrase is used in a court of law it means ‘one who advises the court in a case’. I have done that many times even when I was in the Court of Appeal.

Judges of far greater eminence than this judicial commissioner have often asked lawyers of great experience who are in the court for their valued views. Yet this judge thought he knew everything that he did not require any assistance from one of the top lawyers in the country.

Dick Hamilton in his book ‘Foul Bills and Dagger Money’ wrote:

“It is always easy to criticise judges, and some of them deserve it from time to time; but it is even easier to underestimate the difficulty of their task, and to take their successes for granted. No member of the Bar pretends to understand every branch of the law. ... But a High Court judge has to deal with any sort of case which comes before him.”

In order for the judge to tackle all sorts of cases which come before him, the wise and able judge is always humble enough to ask any of the lawyers in court who is an expert in his field for assistance.

Here we have Thomas (right), who is one of the top lawyers in the country only too willing to assist the judge, yet this probationary judge, who thinks he knew more about law than some of the most eminent judges who have sat on the bench, refused to hear him out.

Here’s how to judge the judge

You cannot judge a judge unless you know the basic law yourself. But you do not have to worry because I shall now provide you with the law applicable so that you are in a position to judge the judge.

You may be surprised at your own ability after you have read this. You might think that even a layman, after reading the applicable law, knows what is the right decision to make. And when a judge does not know the correct answer, it makes you wonder how such a thing could have happened.

I shall start with section 24 of the Government Proceedings Act 1956. I have highlighted the important words for easier reading.

Sub-sections (1) reads:

“(1) Notwithstanding any written law -

(a) in civil proceedings by or against the Federal Government...

(b) in civil proceedings by or against the Government of a State, a law officer ... authorised by the Legal Adviser of such State ... may appear as advocate on behalf of such Government...”.

As you can see, this sub-section is not relevant as it only applies to civil suits brought by or against the state government, not a public officer.

And sub-section (2), which is relevant on the subject of discussion, reads:

“(2) Notwithstanding any written law in civil proceedings to which a public officer is a party -

(a) by virtue of his office; or

(b) in his personal capacity, if the Attorney-General certifies in writing that it is in the public interest that such officer should be represented by a legal officer; a legal officer may appear as advocate on behalf of such officer...”.

This sub-section only applies to civil suits brought by or against a public officer. In such a case, a public officer may (the word is 'may' not 'must') be represented by a legal officer which could include the legal adviser of the state.

Therefore, there is nothing in section 24 (2) of the Government Proceedings Act to suggest that a public officer if he sues or if he is sued must be represented by a legal officer such as the state legal officer.

In any case, section 24 (2) of the Government Proceedings Act only applies to civil proceedings to which a public officer is a party. Therefore, the question is, does the speaker of the Legislative Assembly of a state hold office as a member of the public service? If he does, then he is a public officer.

Article 132, Clause (3) of the Federal Constitution states that:

“(3) The public service shall not be taken to comprise -

(b) the office of President, Speaker, Deputy President, Deputy Speaker or member of either House of Parliament or of the Legislative Assembly of a State.”

So now you know that the speaker and the members of the Legislative Assembly of a state are not part of the public service as they do not hold office as public officers. Therefore, section 24 (2) of the Government Proceedings Act does not apply to them.

Now we all know, except the judge because he thought he knew better, that Thomas could not be prevented to appear for the speaker Sivakumar. If only he had heard Thomas out, instead of barring him from speaking, he would not have made such a grave error.

Courts can’t question validity of assembly decisions

According to newspaper reports, the case is an application by (BN-appointed menteri besar) Zambry Abd Kadir to the court to declare the decision of speaker Sivakumar in the legislative assembly to suspend him and his six exco members as unconstitutional and unlawful.

The question is, can the courts decide on the validity of the proceedings in the Legislative Assembly?

The answer is staring at us right here in the Federal Constitution. Article 72, Clauses (1) to (3) 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.”

So now you know from the Federal Constitution itself that the validity of the suspension of Zambry and his six exco members by the speaker in the state assembly cannot be questioned in any court.

From what we have read from the newspapers, it seems that there is an injunction against the speaker.

You may wonder how an injunction can be obtained against the speaker when our written 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 the State”.

NH CHAN, who is former Court of Appeal judge, lives in Ipoh. This is an abridged version of the original article.

Malaysiakini / March 9, 2009.