Flashback
To refresh your memory, I refer to the report in the New Straits Times of Friday, April 10, 2009:
PUTRAJAYA: The Federal Court has declared that three assemblymen who quit their parties are still members of the Perak state legislature.
This follows an unanimous ruling by a five-men bench yesterday which ruled that “The Election Commission is the rightfulll entity to establish if there was a casual vacancy in the Perak state legislature,” said Federal Court judge Tan Sri Alauddin Mohd Sheriff.
Sitting with him were Datuk Arifin Zakaria, Datuk Nik Hashim Nik Abdul Rahman, Datuk Sen S Augustine Paul and Datuk James Foong.
Last month, Party Keadilan Rakyat’s Jamaluddin Mohd Radzi (Bebrang) and Mohd Osman Jailu (Changkat Jering), together with DAP’s Hew Yit Foong (Jelapang), filed an urgent application for the Federal Court to decide their matter.
The three wanted a declaration whether it was the Election Commissioner or the Perak Speaker (V Sivakumar) had the final say in determining a vacancy. In February, Sivakumar, using resignation letters signed by the three, had declared the seats vacant.
He informed the Election Commission, but the commission refused to hold by-elections on the ground that there was ambiguity over whether the assemblymen had resigned voluntarily.
Following this newspaper report, I wrote an article which was posted on several portals on the Internet titled “When justice is not administered according to law“. This is what I said:
Was the Federal Court right? Before you can judge the judges of the highest court in the country, it is necessary for me to apprise you of the law applicable to the question which is the Constitution of Perak.
I then pointed out that the law which is applicable is Article 31, Clause (5) of the Perak Constitution which reads:
XXXI. (5) A person who resigns his membership of the Legislative Assembly of this State or any other State shall, for a period of five years beginning with the date on which his resignation takes effect, be disqualified from being a member of the Legislative Assembly of this State.
By this provision, Article 3 1(5), I pointed out in my article that an assemblyman who resigns his membership of the Legislative Assembly is disqualified from being a member of the Assembly for a period of five years from the date of his resignation.
In my article, I also showed that Article 33(1) says:
XXXIII. (1) If any question arises whether a member of the Legislative Assembly has become disqualified for membership, the decision of the Assembly shall be taken and shall be final.
This is what Article 33(1) means. It means that when a question arises whether a person is disqualified from being a member of the Assembly, the decision (meaning “the vote”) of the Assembly is final.
Incidentally, Article 35 stipulates that an assemblyman can resign by simply writing to the Speaker. This is what it says:
XXXV. A member of the Legislative Assembly may resign his membership by writing under his hand addressed to the Speaker.
I concluded my article with this observation:
The above is simple enough for all of us to understand. But then, all of us are wondering how on earth the Federal Court could have decided that the “The Election Commission is the rightful entity to establish if there was a casual vacancy in the Perak state legislature”? Don’t you all feel superior to the judges of the Federal Court because you know the correct answer whilst the highest court gave a wrong decision. So you see, when you know how to judge the judges you would be able to separate the wheat from the chaff among our judges. The chaff, you will discover, may not be up to your expectations.
The regurgitation in the judgment of Nik Hashim FCJ
The dictionary meaning of “regurgitate” is “repeat information without understanding it”. Almost everyone knows, because they have read the above article which informed them of the relevant law applicable, which is that it is the assembly who decides the question of the disqualification of a member of the assembly and not the Election Commission. It is only when a member has been disqualified would there be a vacancy in the assembly. Now that we, the ordinary people, know the law we could very easily judge the competence of these judges of the Federal Court. Recently, they have handed down a written judgment dated 8 June 2009 which was delivered by Nik Hashim bin Nik Abd Rahman FCJ as the judgment of the court. The judgment appears to be oblivious of the fact that the general public is now aware of the law applicable. Since the people has been apprised of the law it would be foolish for any judge to give a judgment which is nothing but hogwash – it was crassly insensitive of the judges to try to pull the wool over the eyes of the knowing public. But to our surprise, this is exactly what Nik Hashim FCJ did. As usual the Federal Court has missed the point again. Recently, we discovered it was Augustine Paul FCJ who has this propensity. Now it is Nik Hashim FCJ who has the same propensity. He said:
The issue relating to question No (1) is whether it is the Election Commission or the Speaker who has the right to establish if there is a casual vacancy of the State Legislative seats. To answer the question, we have to consider the provisions of Article 36(5) of the Perak Constitution and section 12(3) of the Elections Act 1958, and the meaning of the words “casual vacancy” and the word “establish”.
Article 36(5) of the Perak Constitution states:
“A casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy”
Section 12(3) of the Elections Act 1958 reads:
“In relation to a vacancy which is to be filled at a by-election, a writ shall be issued not earlier than four days and not later than ten days from the date on which it is established by the Election Commission that there is a vacancy.” (emphasis added)
A “casual vacancy” is defined in Article 160(2) of the Federal Constitution to mean –
“a vacancy arising in the House of Representatives or a Legislative Assembly otherwise than by a dissolution of Parliament or of the Assembly.”
The word “establish” is defined in the Oxford Advanped Learner’s Dictionary, 6th Edition to mean:
“to discover or prove the facts of the situation; ascertain.”
And the Shorter Oxford English Dictionary defines the word “establish” to mean:
“to place beyond dispute; to prove.”
In considering the Perak Constitution, the provisions of the other State Constitutions and the Federal Constitution need to be considered. By comparison, the State Constitutions of Kelantan (Article 46(5)), Malacca (Article 19(5)), Pahang (Article 26(5)), Penang (Article 19(5)), Perlis (Article 55(5)), Sarawak (Article 21(5)), and Kedah (Article 53(5)) contain provisions similar to Article 36(5) of the Perak Constitution which states that “A casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy”, whereas the Constitutions of the State of Johor (Article 23(5)), Negeri Sembilan (Article 56(5)), Selangor (Article 70(5)) and Terengganu (Article 44(5)) provide that a casual vacancy shall be filled within sixty days from the date on which it occurs.”
And blah blah blah, the verbiage continues from page 11 to page 18 of his 20 page judgment where he concluded, thus:
Hence we unanimously ruled that the decision of the respondent Speaker declaring the three State seats of N59 Behrang, N14 Changkat Jering and N31 Jelapang vacant was unlawful and therefore null and void as the decision was contrary to Article 36 (5) of the Perak Constitution. Accordingly, our answer to to question No 1 is in the affirmative. Having answered the question we found that there is no necessity to answer question No 2.
Now that you know the law which is applicable, you are in a position to judge the five judges
What do you think of the quality of these judges of the highest court in the country? You must think that after all the rigmarole and after all the effort in writing this 20 page judgment, they could have done better. But no, they still missed the point altogether. All of us ordinary folk knew the answer. But not these five judges.
Of course, the point is Article 330) of the Perak Constitution which says that when a question arises whether a person is disqualified from being a member of the Assembly, the decision (meaning “the vote”) of the Assembly is final. It is not the Speaker nor the Election Commissioner who determines if a person is disqualified from being a member of the assembly.
If a person resigns his membership of the Legislative Assembly, he shall be disqualified from being a member of the Assembly for five years from the date of his resignation: see Article 31(5).
Article 35 only says that a member can resign simply by writing to the Speaker.
So that if any question arises as to the resignation of the three turncoat assemblymen – a person who resigns his membership of the assembly is disqualified for five years from being a member of the legislative assembly – the decision of the assembly by a vote being taken on their disqualification shall be final.
It is only after a member of the assembly has been disqualified for membership of the legislative assembly that a vacancy of the member’s seat in the assembly arises. It is only then that a casual vacancy arises. And by Article 36(5):
XXXVI. (5) A casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy.
In my article which I wrote shortly after the oral decision of the Federal Court in early April of this year, I have even pointed out the misreading of Article 36(5) by the highest court in the land. This is what I said:
A casual vacancy means an occasional vacancy which can be filled simply with a by-election. But the question whether the turncoat assemblymen have resigned or not will have to await the outcome of the decision of the Assembly which decision shall be final: see Article 33(1). It is only upon receiving the decision of the Legislative Assembly will the Election Commission be able to establish that there is a vacancy. As it turns out the Federal Court have put the cart before the horse – in this case, just the cart without the horse – which is that the court has held that it is for the Commission to establish that there is a casual vacancy without waiting for the decision of the Assembly whether the three turncoat assemblymen have been disqualified for membership of the Assembly by resignation.
By not administering justice according to law is this Federal Court’s besetting sin. The judges of this court have, therefore, breached s 3(1)(d) of the Judges’ Code of Ethics 1994 for bringing the Judiciary into disrepute or to bring discredit to it, which is a ground for their removal from office by virtue of s 2(2) of the Code of Ethics.
We keep hearing and reading about this:
The judges of this court have, therefore, breached s 3(1)(d) of the Judges’ Code of Ethics 1994 for bringing the Judiciary into disrepute or to bring discredit to it, which is a ground for their removal from office by virtue of s 2(2) of the Code of Ethics.
The question is how and when to institute the actions to remove these judges?
Malaysia For All
GE 13 – No matter what, we must ensure that racist umno bn do not regain the power like they had for over the past fifty one years.
Judges morality and code of ethics gone down to the drain..[deleted]
I only have sympathies for those righteous judges and police officers ashamed…. by few.
The people who suffered most are the Malaysian…being led to confusions with UMNO experts in double talks and logic…always protecting results that favours them.
What was declared long ago…not favouring them..ignored.
Yes UMNO BARU is totally different from the original one…killed by Mahathir.
Add his 22 years plus Dollah’s and Najib…we have closed to 30 years of the dirtiest politics in any developed country…in the world…[deleted
But diplomacy must be applied…so these UMNO idiots think world leaders admire them. That’s how low class theY are.
With so much success and enjoying so much stolen tax payers money…rubbing shoulders with the legitimate rich and famous of the world….these [deleted] will never change…as if they do change…they will loose power….loose face..go to jail.
But God is great….Malaysians are no fools….so the more they do not change is infact killing themselves with no help from oppositions.
All LKS and Anwar needs to do is keep exposing them.
They will behave like crabs…talk like clowns…making fools of themselves.
The present law and order….just be prepared for the worst.
Do not get upset….keep exposing them….and lets see…..”1 Malaysia”…one interpretation from Najib…totally different from so call Law Minister in the PM’s Dept. interpretations. Let them explain…..but I bet you…they cannot explain and hope Malaysians easily forget.
Time and time again….they did contradict themselves….feeling so confident Malaysians will easily forget…..mastering the weaknesses of human beings to play their dirty politics….so much so..you can see the final mold of what …UMNO BARU is…by observing Mahathir’s character.
May Tunku Abdul Rahman rest in peace!!
The [deleted] says UMNO leaders like Mahathir make fools of themselves are low class and think world leaders admire them. BUT DOES [deleted] REALIZE THAT ALL THE THINGS HE SAID ABOUT UMNO APPLY TO HIMSELF AS WELL? A big no! [deleted]
[deleted]
hhhhhhhhmmm..”Mahathir does not make a fool of himself” sums up the brain.
The [deleted] has not only shown himself to be an incorrigible liar, but in the process showed he is EVEN MORE STUPID than originally thought to be
moderator must be a retard not to know the meaning of sexist and racist
When people are concerned with the police crackdown of the DAP dinner in Klang last night, [deleted] was more interested in telling grandmother stories of how he himself had been similarly raided and tried to associate himself as if people care! That shows how self-centred and conceited he is in thinking that he is king of the world or something. Note that he is fond of blowing his trumpet, claiming that he is this and that, this and that…when a check with the archives and the records of his good friend Simon Wee shows that he is nothing but someone with a big ego and nothing underneath! He suffers from delusions of grandeur which explains why he wants to make everyone notice him….but when people don’t then reality hits him hard and one wonders how many tears of frustration and unwanted he shed behind his computer screen.
If EC can decide the vacancy of any state assembly representative then what’s the point of having a speaker who can’t have the final decision.It’s liken to a brain/head which can’t have final control of the rest of the body.I think the judges behaviour is unethical especially not recognizing the speaker of the assembly to have the final say.Here again it’s liken to a chairman who can’t have a final say in his major share own company.If for example Umno’s majority of its representatives or MPs resign,who would decide to desolve parliament,the prime minister,the Agong or the EC ?.
hahahahaha….being most deleted commentator by moderator…..trained to talk to the subject…or else!!
Good improvements…with me always in his mind.
See…talking serious….one screw loose…..hahahahahahaha
Good improvements…with me always in his mind.
See…talking serious….no meaning….hahahahahahaha
UMNO has been in power for far too long that they act as if they are the government of right. There is no separation of powers and the Election Commission, the judiciary, and the police, are but mere arms of UMNO, just like its Youth or Wanita arm. I have lost trust in the Malaysian courts these last few years where laws are bent and twisted like a foundry factory to suit UMNO’s purposes. So many rationalizations and justifications where black can become white, and white can become black. I have no respect for judges. Most of them are no more than [deleted] It’s right that they no more wear white wigs because they don’t deserve to wear them anyway. [deleted]
You should see how some judges berate advocates et. al in some of our courts like they are “dear-know-alls”. Now we know who are those who are ” dear-know-nothings”.
Judges can bay at the moon and howl against the winds. But there will come a time, some think sooner rather than later, when even judges shall stare at Truth and the truth will set the people free. Justice is like water. As it is plain and inexorable that water finds its own level, so shall justice hew down the tapestry of evil judges stitch to cloak their dishonest intentions. Then shall we all see that those who howl last, howl best.
The law is so clear and yet the judges defy it.
What sort of country is this?
I am ashame to be a Malaysian. Then someone will tell me to go back to China if I am not happy with Malaysia.
What can I do?
Change we must!
Please wake up my fellow righteous Malaysians. We deserve better than this from sickening UMNO which has no integrity.
They tell you to go back to China because they forgot where they come from. [deleted]
“Lee HS says: “I am ashame to be a Malaysian.”
Is that such a thing called a Malaysian? Hasn’t UMNO rejected a Malaysian Malaysia all this while? When the unity talks between PAS and UMNO succeeds, 1Malaysia will be unceremoniously dumped into the longkang behind your house because it serves no purpose anymore. I don’t trust PAS and whatever it stands for. By the way, what does PAS stand for? I don’t mean its acronym, I mean its ideology… We will become another election-fraud Iran if PAS ever succeed in running this country… so much about its ideology. But Nik Aziz, that man is great, I really respect him.
is it a racist remark to refer to white trailer trash? what do you call white trailer trash then? nothing offensive. whites don’t find that offensive. you need to educate yourself ms moderator.
but then you never left malaysia. never lived anywhere outside jinjang.
“What do you think of the quality of these judges of the highest court in the country?”
Very poor [deleted]!!!
The judges had decided on the judgement to be given even before they heard the case. They knew too the law, and they only tried to confuse laymen by writing 20 irrelevant pages to justify something that they knew could not be done.
Why did the have to stoop so low? Is it pay-back time? Or losing reputation is the lesser of the evils thay were allowed to choose
In Bolehland…. where the rape victim gets incarcerated and the rapist go scotch-free, where the reporter who reports gets into trouble and the one who says it gets scotch-free… this then is Malaysia[deleted]
You all know who ACTUALLY ‘appoint’ those Judges at all levels.
So how do they as the judges handle their positions? [deleted]
Some would say ‘don’t bite the hands that feed them”.
Here we go another downside of 1Malaysia of confusion and some try to be heroes the wrong way.
pw:bridles 30c
It is clear Judges (pareticularly those culprits listed) are no demi-gods but mortals with feet of clay and, would we say, warped minds or values!
Some judges will bite the dust and be forever forgotten; some judges will incur the contempt of people so much that everytime their names are mentioned, there is a reflex urinary squirt and a “royal flush”( shi*t bath) on their memories; a few, just a rare few from a motley of nations have their names and memory engraved in gold, etched for eternity. Think of Lord Denning for one at the glorious end. At the other end of the spectrum, not a few Malaysian judges! Where are Tun Eusoff, Tun Hamid Omar, Augustine, Nik Hashim etc. perched I wonder? Do I have to wonder?
We always heard of ‘professor kangkung’ in local university, now we should know what is ‘yang arif kangkung’.
As long as it is justice for or in favour of umno it will be universal justice. No question about it. So no point debating further.
I don’t know about the other two “kataks” but for Hee, the people of her constituency had elected her as states assembly person for Jelapang because she represented DAP. Just ask anyone from Jelapang whether he or she would vote for Hee if this handicapped woman was not standing under the DAP camp.
Now that she has defected from DAP, declared herself as a BN-friendly independent candidate and with her office in Jelapang closed, who is she representing in the State Assembly? The people of Jelapang has clearly rejected her and if she still remained in the State Assembly, which constituency does she belong to? Has the court ever consider this fact in making its decision?
Hee makan gaji buta?
This is no longer a Smart country….simply a Dumb country, created by one and only UMNO goons, who rule by practising the laws of the jungle. How to change this perception, when we have a playboy UMNO PM…..remembering altantuya!
The final decision made by these judges,did they make it conscientiously or unconscientiously ?.As senior and experience judges,they should be very conscious of the laws in front of them.They should have a kind of guided sense of duty to interpret the law fairly and deliver judgement accordingly.Anything less is morally wrong.
Now this mega dumb is belittling others for not living outside Malaysia. Hello, big deal. Yes may be you have lived in London, New York, Sydney or elsewhere doing dish washing in a filthy Chinese restaurant.
are you saying all chinese restaurants are filthy? that would be the implication in your statement and that ms moderator is an example of a racist statement. restaurants run by whites could be even more filthy. there are squatters in malaysia living under appalling conditions just as there are whites living in trailers amidst trash and hence white trailer trash.