The arrogance of a novice judge

NH Chan | Mar 9, 09 11:27am
http://www.malaysiakini.com

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.

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.

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 ... t

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”.

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

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’.

Source: Malaysiakini.com

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The above article is posted for those who do not have access to Malaysiakini. However, what was expressed by NH Chan are profound knowledge for the general public to learn about constitutional law and its application and would also be helpful for those who are sitting for the law exam and CLP.

It is truly an educational subject and of importance to all Malaysians who lacks the knowledge of Malaysian law and its applications.

Hopefully, from all the problems that our nation is facing it is also a blessing in disguise, for we have the opportunities to enhance our knowledge and become better informed as a voter and to assist us to understand better our role in the choice of electing a democratic government.

Knowledge is wisdom and a virtue.
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