Friday, 17 April 2009

Federal Court Decision is Defective, Null and Void

UPDATED

Federal Court Was MISLED in Striking Out an Order that Does NOT Exist

by

MP Lim Kit Siang

Read here for more

Excerpts:

The Federal Court decided yesterday that the Perak State Assembly Speaker V. Sivakumar does not have the power to suspend the usurper Perak Mentri Besar Datuk Zambry Abdul Kadir and his six state executive council members from attending the assembly.

Zambry is (now) seeking to convene the Perak State Assembly on May 7.

FEDERAL COURT DECISION IS NULL AND VOID

However, the Federal Court decision yesterday is defective, null and void.

  1. Firstly, it was NOT the Speaker who suspended Zambry and his six executive council members, but the Perak State Assembly Committee of Privileges on Feb. 18.

    In striking out the purported suspension order of the Perak State Assembly Speaker, the Federal Court was striking out an order that does NOT exist - as the suspension order was that of the Committee of Privileges.

    Zambry and his six exco members had sued the WRONG party .

    As a result, (he ) has got a Federal Court order against the wrong party.

  2. Secondly, the Federal Court decision is a serious violation of the doctrine of separation of powers among the three branches of government, the executive, the legislature and the judiciary, each recognizing and respecting the limits of its own powers not to trespass into the powers of the other branches of government.
SPIRALLING DOWN TO TIT-FOR TAT BETWEEN JUDICIARY AND LEGISLATURE

Both the legislative and judicial branches of government have powers to punish contempt for disobedience to their decisions.

Is Malaysia to witness a situation where:

  • the legislature (whether Parliament or State Assembly) issues contempt orders against the Judiciary,

  • Judiciary itself issues contempt orders against the Legislature, because of conflict of decisions over the same subject-matter.
(This has) happened in some other countries which do not understand or are not prepared to give scrupulous regard to the doctrine of separation of powers.

If this unfortunate scenario should take place, it will spawn a new crisis of confidence in the judiciary – which will be a great disservice to the cause of rebuilding national and international confidence in the competence, professionalism and integrity of national institutions particularly after the Malaysian judiciary has suffered two decades of “darkness” from which it has not fully recovered.

The undemocratic, unethical, illegal and unconstitutional power grab in Perak must be resolved in the shortest possible time, without dragging more and more institutions into the mud, so that Malaysians can unite as one to face the world’s worst global economic crisis in a century.

DISSOLVE THE PERAK STATE ASSEMBLY

The fairest and most democratic solution to the Perak political and constitutional stalemate is to dissolve the Perak State Assembly to return the mandate to the Perakians to elect the State Government they want, instead of trying to legitimize the hijacking of the political rights of Perakians by various dubious means.

Instead of trying to convene a Perak State Assembly meeting on May 7 which will bring the Perak political and constitutional crisis to a new level of confrontation, Zambry should take full cognizance of the Barisan Nasional defeat in the Bukit Gantang by-election and agree to the immediate dissolution of Perak State Assembly for new state general election to be held.
-Lim Kit Siang

RELATED ARTICLE

Kes MB Perak vs Sivakumar Undang Bahaya

by

Wan Nordin Wan Yaacob

Read here for more
Keputusan Mahkamah Persekutuan membatalkan penggantungan terhadap Menteri Besar Barisan Nasional Perak, Dato' Zambry Abd Kadir dan enam ahli exconya daripada menghadiri sidang Dewan Undangan Negeri (DUN) Perak didakwa memberi implikasi 'BAHAYA ' selepas ini.

Demikian kata peguam muda, Abdullah Abdul Karim kepada Harakahdaily ketika diminta mengulas isu tersebut.

Bagi Abdullah, ia memberi implikasi kepada persoalan 'separation of power' (pengasingan kuasa) iaitu kuasa Speaker itu sendiri sudah boleh dibawa ke mnahkamah untuk dicabar.

Kes ini katanya menjadi 'precedent' dan tidak mustahil akan berulang selepas ini.

"Nampaknya dewan itu sendiri kini tidak bebas, dan kuasa speaker boleh dicabar.Ia akan menyebabkan tidak ada lagi keistimewaan kepada Speaker.Ini akan mengundang bahaya," katanya.

Teori pengasingan kuasa yang biasa diamalkan di negara Komanwel hari ini sudah tidak dipakai lagi dengan keputusan ini, katanya.


Maknanya selepas ini di Dewan Rakyat sekalipun, sebarang tindakan yang dibujat Speaker Dewan akan terdedah untuk dibawa ke mahkamah,katanya.

Sebelum ini, Zambry dan enam exconya itu, sebelum ini memohon kepada Mahkamah Persekutuan untuk membatalkan keputusan Speaker DUN Perak, V Sivakumar yang menggantung mereka selepas BN menubuhkan kerajaan negeri di Perak Februari lalu tanpa pembubaran Dun.

2 comments:

Yap Chong Yee said...

This is one for history and a totally hilarious situation which endorses my opinion of Malaysia as lawless because judges do not know the law and they do not read English too well and do not understand what they read. In law unless the lawyer is able to define issues and most of the judges, being not too fluent in English is unable to make sense of what they read.

The issue is so straight forward, who does one sue is everything and all the issues ARE hinged on that decision, and it is obvious that those who represented Zambry has no idea what they were doing and of all the LAUGHS THAT WILL ENDURE FOR ALL TIME THIS JOKE WILL LIVE INTO ALL ETERNITY THAT THE CHIEF JUSTICE OF MALAYSIA ACTING IN COMPLICITY WITH 5 FEDERAL COURT JUDGES OF MALAYSIA WAS FOUND TO BE INCOMPETENT AND DID NOT KNOW THAT THEY ISSUED AN ORDER TO A NON EXISTENT RESPONDENT. Jesus ! What a lot of crap that has bounced off these judges at the highest level of our judiciary; they did not have enough learning of the law to even know the most basic issue in the UMNO application. Yes, UMNO has the judges in their pocket, but what a bunch of wimps !

If the Perak Parliament is to be called on May 5th the circumstances of this faux pas will give the Pakatan Rakyat government the total control of Perak assembly, the Federal Court Order being the nullity that it is cannot prevent the Speaker from ejecting Zambry & his merrymen from attendance. It is therefore up to the Pakatan Rakyat majority members to pass any resolution that they like ! THE ONLY RESOLUTION THAT PAKATAN RAKYAT WILL NEED TO PASS IS TO RESOLVE THE DISSOLUTION OF THE PERAK STATE ASSEMBLY AND ACHIEVE WHAT THE SULTAN OF PERAK WAS NAT DISPOSED TO DO.

From any angle that one cares to see the issue, Pakatan Rakyat has won !

billauchris said...

What recently took place at the Federal Court brought me back to 31August 1970 when the Yang Di Pertuan Agong proclaimed to and for the country the National Ideology known as the Rukun Negara. It comprises the infamous FIVE PRINCIPLES,namely:-

1) Belief in God;
2) Lyalty to the King and country;
3) Uphold the Constitution;
4) Rule of Law; and,
5) Good Behaviour and Morality.

The Ideology shall be applied to
to guide our nation towards five key outcomes:

• Achieving a greater unity of all her peoples;

• Maintaining a democratic way of life;

• Creating a just society in which the wealth of the nation shall be equitably shared;

• Ensuring a liberal approach to her rich and diverse cultural traditions; and,

• Building a progressive society which shall be oriented to modern science and technology.

My son came back from school one day and showed me the above matters that were printed clearly at the back of an exercise book.
He asked me what "Rule of Law" meant.

I began to introduce and briefly explain to him the country's Federal and States' constitutions; Parliament and State Assemblies that are empowered thereby to enact laws, subordinate legislations such as ordinances and regulations; the structure of Governments at Federal and State Levels; Separation of Powers between the Executive, Judiciary and Legislature.

Then I elucidated the concept of Rule of Law - which basically means upholding and abiding by the enacted laws of the land which include the constitution of Malaysia which is the supreme law of the country.

Adhering to the rule of law ensures civility among he people in the country; otherwise, there will be civil unrest, strikes and violence and loss of lives and propeties.

When I read the article of YB LIm Kit Seang and Mr Yap Chong Yee, I began to ask myself whether the politicians and judges in our country really understand the above basics.

If these so-called adults are not behaving in the way as guided by the Rukun Negara, the youths in the counry are going to grow up confused and confounded between life philosophy and practice.

If the Government officers, by which I mean, those who are in the Executive, Judiciary and Legislature, are not sincere and serious about implementing the National Ideology, I would like to advice that it be scrapped; otherwise, it makes parenting very difficult and our young adults will harbour the inner conflicts even way after they start their working life.

Section 72(1)is very explicit. It states: "The validity of any proceedings in the Legislative Assembly of any State thereof shall not be questioned in any court".

Legislative assembly as I see it includes all the various structures and committees set up thereunder although the latter are not mentioned as in Section 63(1)but their existence can be reasonably implied.

Proceeding would refer broadly to all the decisions, resolutions, plans, procedures, rules, budgets projects, business etc. that have been discussed, debated, decided, deliberated, deferred or discarded or dismissed and the validity thereof SHALL NOT be questioned in any COURT.

"Shall Not" have been used in Section 72(1)which makes it all the more prohibitive to refer to any court for reviewing or questioning the validity of any proceeding of the Legislative Assembly

Any court would imply from inferior to superior court including the Federal Court.

In my view,the Federal Court's decision is vires the Federal Constitution. Hence, its decision is null and void and have no effect on the decision of the Legislative Assembly of Perak.

The Apex Court furthr ruled that the Speaker YB Sivakumar has no power to suspend Zambry and his six exco and hence set the suspension aside.

It must be borne in mind that it was not YB Sivakumar who suspended the magnificent seven. It was the State Assembly's Privilege and Discipline Committee that initiated the suspension and not YB Sivakumar. Hence, the Federal Court's decision was flawed in this regard.