NH Chan May 20, 09 12:46pm
Why isn’t there a written Federal Court judgment on the Perak debacle?
The answer can be simply put. It is because Article 72(1) of the federal constitution is written in unambiguous language which even a child can understand.I said in an earlier article that the words,
‘The validity of any proceedings in the legislative assembly of any state shall not be questioned in any court’ mean what they say.
Nothing can be plainer than that.
No one in his right senses would try to interpret the obvious meaning of the words in Article 72, unless he wants to say the words mean something else. But the Federal Court was not prepared to do that.
And the reason is because they do not want to be known as Humpty Dumpty judges. Remember what Humpty Dumpty said in Lewis Carrol's ‘Through the Looking Glass’?:
"But 'glory' doesn't mean 'a nice knock-down argument'," Alice objected.
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean - neither more nor less."
So the judges of the Federal Court did the unthinkable.
They blatantly refused to apply the constitutional provision as it stands. They ignored it altogether. But by so doing they have committed the cardinal sin of not administering justice according to law. It is the duty of every judge, indeed it is his only function, to administer justice according to law. And the law, in this context, is Article 72(1) of the federal constitution which is the supreme law of the land.
Said Lord Denning in ‘What Next in the Law’: ‘Parliament is supreme.
Every law enacted by Parliament must be obeyed to the letter. No matter how unreasonable or unjust it may be, nevertheless, the judges have no option. They must apply the statute as it stands.’ Since the judges of the Federal Court, especially the infamous five, have refused to apply Article 72(1) as it stands, they have, as a result, impaled themselves on the horns of their own dilemma. They have, so to speak, placed themselves between the devil and the deep blue sea.
Either way their position is untenable.
By refusing to apply Article 72(1) as it stands they would be guilty of a misuse of power. As put by Lord Denning: ‘May not the judges themselves sometimes abuse or misuse their power? It is their duty to administer and apply the law of the land. If they should divert it or depart from it and do so knowingly - they themselves would be guilty of a misuse of power.’ And, in this country, this could be a ground for the judges to be removed from office.
This is what the Judges' Code of Ethics 1994 says:
2. (1) This Code of Ethics shall apply throughout the period of his service.
(2) The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.
3. (1) A judge shall not -
(d) conduct himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto.
Judiciary ‘discredited’
Judging by the unfair treatment of (ousted Pakatan Rakyat menteri besar) Mohammad Nizar Jamaluddin in his encounter with the Federal Court, public opinion has no doubt that the judges have brought discredit to the judiciary.
The words of section 3(1)(d) are so clear and easy to understand that we do not need any court of law to explain it to us ordinary folk.
We know what the words mean. By not administering and applying the law, the errant judges have brought discredit to the judiciary - it is a ground for their removal from office.
And if the government of the day fails to listen to the voice of the people, then it has placed itself in jeopardy of losing the next general election or any by-election or any state election in the future.
And finally, what about Ramly Ali, the Court of Appeal judge who acted with indecent haste when he granted a stay to Zambry Abd Kadir of the well considered judgment of Kuala Lumpur High Court judge Abdul Aziz Abdul Rahim.
Zambry was appealing against the High Court judge's declaratory order in favour of Nizar.
Ramly granted the stay of the declaration but, like the Federal Court judges, has not given any reason for his decision. The judge was unable to explain why he granted the stay. As any lawyer will tell you it is unusual to stay a declaratory order.
If such a stay is to be granted, there are legal arguments to be considered from both sides and the judge will have to say why he prefers the argument of one side as against the other.
Ramly is in no better position than his seniors in the Federal Court. The people's perception of him as an unfair judge is the same as that of the errant judges of the Federal Court.
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 referring to High Court’s commercial division 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.
Previous articles by NH Chan
Humpty Dumpty and Mohd Nazri
Perak crisis: Judges have let Najib down
The arrogance of a novice judge
Sultan has no powers to ask Nizar to quit
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