[gambar: kalau court tak boleh selesaikan kes kemelut Perak, jom pergi food court]
[from blog LIM KIT SIANG]
(By CKO, an Advocate practicing in Sabah, who has no political affiliation.)
1. Much has been said on the recent legal battles in Perak in the first week of March 2009, including the decision of the Ipoh High Court to grant an Order against the Speaker under Section 44(1) of the Specific Relief Act 1956. The Ipoh High Court apparently has ruled that because of the Government Proceedings Act 1956 (“GPA”), the State Assembly Speaker must be represented by the State Legal Advisor in the relevant legal proceedings. However, it is my humble view that the GPA was not applicable at all.
State Speaker Must be Represented by the State Legal Advisor?
2. There is no official report yet on the actual legal basis for the High Court’s rulings on this point, so we can only rely on the press reports. It has been reported that:-
“Mohd Hafarizam had argued that the Speaker’s own lawyers could not represent him as he was considered “part of the government”, and therefore only the state legal adviser could act for the Speaker and State Assembly members.”
(Speaker restrained from convening ‘State Assembly meetings’; The Star, Wednesday, March 4, 2009)
http://thestar.com.my/news/story.asp?file=/2009/3/4/nation/3399999&sec=nation
“Datuk Hafarizam Harun, who is leading the lawyers representing the three independent state representatives who switched to support Barisan Nasional, said Sivakumar could use private lawyers only if he resigns.
“Then we can elect a new speaker from the Barisan Nasional,” Hafarizam said, reflecting Barisan Nasional’s strategy to oust the speaker.
He added that Sivakumar had no choice but to use the SLA even if he had no faith in that person. “The prime minister also has to use the Attorney-General. It is not a matter of choice.””
(High Court: Sivakumar must be represented by state legal adviser; The Malaysian Insider, Thursday, March 5, 2009)
http://www.themalaysianinsider.com/index.php/malaysia/19690-high-court-sivakumar-must-be-represented-b
3. Presumably, such a sweeping argument made by the lawyers representing the Perak Barisan Nasional was based on Section 24 of the GPA:-
“24. Appearance of law officers.
(1) Notwithstanding any written law-
(a) in civil proceedings by or against the Federal Government a law officer, the Parliamentary Draftsman or a Federal Counsel, or, in the case of the States of Sabah and Sarawak, a legally qualified member of the Federal or State Attorney General’s Chambers authorised by the Attorney General for the purpose; and
(b) in civil proceedings by or against the Government of a State a law officer, the Parliamentary Draftsman or a Federal Counsel authorised by the Legal Adviser of such State, and, in the case of the States of Sabah and Sarawak, the State Attorney General or any legally qualified member of the State Attorney General’s Chambers authorised by the State Attorney General for the purpose;
may appear as advocate on behalf of such Government and may make and do all appearances, acts and applications in respect of such proceedings on behalf of the Government.
(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 and shall be deemed to be the recognised agent of such officer by whom all appearances, acts and applications in respect of such proceedings may be made or done on behalf of such officer.”
4. However, it is my humble view that if the Perak Barisan Nasional’s application was a Judicial Review application, then Government Proceedings Act 1956 does not apply. It is actually irrelevant whether the Speaker was deemed ‘part of the government’ or not, as the GPA is totally not applicable and therefore it cannot be the basis to bar the Speaker from appointing any lawyer of his own choice. This is because the phrase “civil proceedings” in that Act has a specific meaning.
5. Just because the application was not ‘criminal’ in nature does not necessarily mean that it was therefore ‘civil’. With all due respect to the High Court and the lawyers acting for the Perak BN, such leap of logic shows a fundamental ignorance of the scope of the Act and what the Act was designed to achieve. (For the history and purpose behind the GPA, see the Appendix.)
6. Section 2 of the Government Proceedings Act 1956 provides:-
“”civil proceedings” means any proceeding whatsoever of a civil nature before a court and includes proceedings for the recovery of fines and penalties and an application at any stage of a proceeding, but does not include proceedings under Chapter VIII of the Specific Relief Act 1950, or such proceedings as would in England be brought on the Crown side of the Queen’s Bench Division;”
7. In other words, “civil proceedings” under GPA is referring only to civil claims such as tort and contract, and does not include proceeding concerning public law issues or the exercise of public or governmental power, which are called ‘Judicial Review’ proceedings. In England, Judicial Review proceedings are, traditionally, started/brought in a specific Division of the High Court, i.e. on the “Crown side” of the Queen’s Bench Division of the High Court; and the orders made by this Division of the High Court are called ‘prerogative orders’, such as mandamus (to force a person or entity exercising public power to do an act), prohibition (to prevent a person or entity exercising public power from doing an act), certiorari (to set aside the decision of a person or entity exercising public power) and so on.
8. In Malaysia, Judicial Review proceedings could also be brought under Chapter VIII of the Specific Relief Act 1956 (“SRA”). The Order granted by the Ipoh High Court to purportedly restrain the Perak Speaker from convening the State Assembly meeting appears to be granted under Section 44(1) of the SRA, which is part of Chapter VIII of the SRA. Chapter VIII of the SRA includes:-
CHAPTER VIII – ENFORCEMENT OF PUBLIC DUTIES
“44. Power to order public servants and others to do certain specific acts.
45. Application how made and procedure.
46. Peremptory order.
47. Execution of, and appeal from, orders.
48. Costs.
49. Bar to issue of mandamus.”
9. Therefore, the application before the Ipoh High Court must be a Judicial Review proceedings, and therefore not within the meaning of ‘civil proceedings’ under the GPA.
10. In other words, by defining ‘civil proceedings’ as not including those “Crown side” proceedings, Section 2 of the GPA has expressly said that the GPA as a whole is irrelevant and not applicable when it comes to Judicial Review proceedings (‘Crown side’ prerogative orders) or applications under Chapter VIII of SRA.
11. The principle that “civil proceedings” under the GPA does not include Judicial Review has been confirmed by the Court more than 15 years ago in a landmark public law case decided by the highest court in England, the House of Lords, in M v Home Office [1994] 1 AC 377, [1993] 3 WLR 433, [1993] 3 All E.R. 537. Although this was a case from England, it was deemed so important that it has also been reported in the local Malaysian law reports as In re M (A. P.) [1993] 3 CLJ 567 (and cited by our own Federal Court recently in Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 5 CLJ 321), so there was really no excuse for any lawyer claiming to specialize in public law to be ignorant about it. The House of Lords in that case says @ In re M (A. P.) [1993] 3 CLJ 583b-f:-
“The language of s. 23 makes it clear that Part II of the Act does not generally apply to all proceedings which can take place in the High Court. In particular, it does not apply to the proceedings which at that time would have been brought for prerogative orders…
‘Civil proceedings’ includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the [Queen’s] Bench Division.
Proceedings for the prerogative orders were brought on the Crown side.”
12. This interpretation was strengthened by the House of Lords’ decision about 4 years ago in Davidson (AP) v Scottish Ministers [2005] UKHL 74. The highest court of England clarified the legislative purpose of the English Crown Proceedings Act 1947 (and hence the Malaysian GPA too, because the GPA was modeled on the Crown Proceedings Act 1947). Lord Nicholls of Birkenhead says:-
“15. In English law the phrase ‘civil proceedings’ is not a legal term of art having one set meaning. The meaning of the phrase depends upon the context. For instance, the phrase is often used when contrasting civil proceedings with criminal proceedings. So used, and subject always to the context, civil proceedings will readily be regarded as including proceedings for judicial review.
16. This usage was not intended in the 1947 Act. That is clear beyond doubt. Proceedings on the Crown side of the King’s Bench Division were the predecessors to applications for judicial review, and the definition of ‘civil proceedings’ in section 38 of the Act states expressly that ‘civil proceedings’ does not include proceedings on the Crown side. Thus section 21 was not applicable to Crown side proceedings.
18. Accordingly, with one immaterial exception in section 25, Crown side proceedings were not the subject of reform by the 1947 Act. The remedies available in Crown side proceedings were not affected by the Act. Prerogative writs and orders, including mandamus, had long been issued against officers of the Crown: see Lord Parker CJ in R v Commissioners of Customs and Excise, Ex p Cook [1970] 1 WLR 450, 455. The 1947 Act did not touch this jurisdiction.”
13. On the other hand, it should be noted that it would be improper and beyond the power of a civil court hearing a civil claim (of tort, contract and so on, which is not a Judicial Review application) to grant an ‘injunction’ to ‘injunct’ a person exercising public law power – such as the Perak Speaker in this case. This is because the Perak Speaker’s actions, even if wrongful, were not a private law contractual or tortuous wrong.
14. The only correct way to challenge the Speaker’s decision was through the public law Judicial Review proceedings (whether the challenge will succeed or not is a different matter, see below). This is a very elementary conceptual difference between public/administrative law and private/civil law, which the Judicial Commissioner and the lawyers acting for the Perak BN were surely well aware of. Therefore, there is no question that the application brought to stop the Perak Speaker from convening the State Assembly meeting must be a public law, Judicial Review proceedings, in which case the GPA was totally not applicable, including the Section which purportedly ‘requires’ a ‘public officer’ to be represented by the Sate Legal Advisor.
15. To sum up, it is my humble view that the Ipoh High Court was wrong in law to disallow the Speaker to engage his own lawyer in any public law proceedings, based on Section 24 of the GPA – or any other provision of the GPA for that matter.
16. As to the following argument:-
“According to Hafarizam, the grounds of judgment were based on the test of payment. “Although the speaker is not paid by the ordinary public services commission, he is paid under the consolidated fund which comes from the state so there is no issue that he is not a branch of the government.”
… But Hafarizam interpreted it differently. “We are not denying that the speaker is not a public servant as they come under JPA (Public Service Department). But the speaker is a public officer exercising public duty and has a public office so you are part of government.””
17. With due respect, such talks are misleading and conceptually ambiguous. If this logic holds water, the Separation of Powers could be simply destroyed by the bizarre ‘test of payment’ – because as a matter of fact, all 3 Branches of the Government are paid by the Consolidated Fund! Of course, because the money in the Federation/State Consolidated Fund simply means money which belongs to the Federation/State as a whole, but is ultimately controlled by the Legislature.
18. In law, the terms ‘public office’ and ‘government’ have specific and varied meanings depending on the applicable laws and contexts. It cannot be based on this completely unheard of ‘test of payment’. As Lord Nicholls of Birkenhead says in Davidson, para 15, “In English law the phrase ‘civil proceedings’ is not a legal term of art having one set meaning. The meaning of the phrase depends upon the context.”
19. In any event, it is very obvious that the State Legal Advisor, like the Federal Attorney General, sits in the State Cabinet/Executive Council (or below), i.e. s/he is a member of the Executive Branch of the Government. Therefore, since we have Separation of Powers in our system between the Legislative, Executive and Judicial Branches, it is unrealistic (if not unconstitutional) to expect the State Legal Advisor to act for the Speaker in a tussle between the Legislative and the Executive Branches of the Perak Government. The State Legal Advisor would be caught in a situation where s/he was forced to take side between his own Executive Branch and the opposing Legislative Branch. The State Legal Advisor could not be ignorant about this irreconcilable conflict of interests. (Putting aside the fact that the State Legal Advisor is at the same time also acting on behalf of the BN Executive Branch of the Government against the former Menteri Besar of Pakatan Rakyat, the Speaker’s coalition.)
20. Such a grave legal mess, if not quickly addressed or further clarified, has the potential to make our Courts a Commonwealth (at least) laughing stock.
Order under Section 44(1) of the Specific Relief Act 1956 against the State Speaker?
21. The Order granted to restrain the Perak Speaker from conducting the State Assembly meeting was purportedly made under Section 44 of the Specific Relief Act 1956 (“SRA”). Section 44(1) says:-
“Power to order public servants and others to do certain specific acts.
(1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or any court subordinate to the High Court:
Provided that – …”
22. It appears that the only relevant basis used by the lawyers acting for the Perak BN to justify the Order under this section was that the Perak Speaker was a “person holding a public office” by applying the innovative ‘test of payment’.
23. The meaning of this phrase has been recently decided by the highest court in Malaysia by reference to Article 132 of the Federal Constitution. In Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 5 CLJ 321, the Chief Justice says:-
“[15] The answer to the question depends on, first, who is a “person holding a public office”? In Loh Wai Kong v Government of Malaysia & Ors [1978] 1 LNS 106, Gunn Chit Tuan J (as he then was) held:
However, according to sub-section (1) of s. 44 of the Specific Relief Act 1956, an order can only be made against any person holding a public office … According to s. 3 of the Interpretation Act, 1967, “public officer” means office in any of the public services, and “public services” means the public services mentioned in art. 132(1) of the Federal Constitution. Therefore, 1 and 2 respondent in this case, namely the Government of Malaysia and the Menteri Hal Ehwal Dalam Negeri, Malaysia who are not persons holding a public office within the meaning of s. 44 of the Specific Relief Act have, in my view, been wrongly cited as respondents.
[16] In other words, since the Government of Malaysia and the Minister of Home Affairs are not “persons holding a public office”, an order pursuant to s. 44 of the SRA cannot be issued against them. Regarding the other two respondents, ie, the Ketua Pejabat Imigresen, Pulau Pinang and the Pegawai Paspot, Pulau Pinang even though they were held to be persons holding a public office, nevertheless the order prayed for was refused by the learned judge because the applicant had failed to fulfill the five conditions set out in the proviso to sub-s. (1) of s. 44 SRA.
[19] With respect, I do not agree with the approach and the interpretation given by the Court of Appeal. If words used in statutes are defined, it is that meaning that the court should give to them. It is not right for the court, purporting to give a “wider interpretation”, to give a meaning different from what is defined by statute.
[20] SRA does not define the words “public office”. However, “public office” is defined by the Interpretation Acts 1948 and 1967 (Act 388) (“IA”) as follows:
“public office” means an office in any of the public services;
“public officer” is defined as follows:
“public officer” means a person lawfully holding, acting in or exercising the functions of a public office.
[21] What is “public services”? Art. 132(1) of the Constitution provides:
132(1) For the purposes of this Constitution, the public services are:
(a) the armed forces
(b) the judicial and legal service
(c) the general public service of the Federation
(d) the police force
(e) (Repealed)
(f) the joint public services mentioned in Article 133
(g) the public service of each State; and
(h) the education service.
[22] Clause (3) provides:
(3) The public services shall not be taken to comprise:
(a) the office of any member of the administration in the Federation or a State; or
“Member of the administration” is defined in Article 160 as follows:
“Member of the administration” means, in relation to the Federation, a person holding office as Minister, Deputy Minister, Parliamentary Secretary and, in relation to a State, a person holding a corresponding office in the State or holding office as a member (other than an official member) of the Executive Council.
[23] It is clear that the Minister of Finance, Government of Sabah is “a member of the administration” but not a “person holding public office.” What it means, in relation to s. 44 SRA is that s. 44 SRA is not applicable to the appellant, meaning that an order under s. 44 SRA cannot be issued against the appellant. To that extent the High Court judge Gunn Chit Tuan J, was right in Loh Wai Kong (supra) regarding the effect of s. 44 SRA on the Government of Malaysia and the Minister of Home Affairs. In my view the learned High Court judge in the instant appeal was right in following Loh Wai Kong (supra) and the Court of Appeal was wrong in its interpretation of s. 44 SRA.”
24. In other words, in deciding whether the Perak Speaker (or any other person for that matter) was “a person holding a public office” (hence can be controlled by a High Court Order under Section 44 of the SRA), the answer lies in Article 132 of the Federal Constitution, and not some bizarre, hitherto unheard of ‘test of payment’.
25. So, regardless of what is stated in the Perak State Constitution or who pays for their lunches and official cars, based on the Federal Court’s decision in Petrojasa, an order under Section 44 of the SRA could not be issued against any member of the Perak State Executive Council (i.e. the Executive Branch) because they are not a “person holding a public office” (and therefore not subject to the Court’s control) under Section 44 of the SRA. If that is the case for the Executive Branch, why should the State Speaker – being the head of a different, sovereign Branch of the government – be a “person holding a public office” (and therefore subject to the Court’s control) under Section 44 of the SRA? If the answer is yes, it would turn the State Speaker into some kind of subordinate officer lower than the Executive and the Judicial Branches. Is the Perak State Constitution so peculiar?
26. As we have seen, the Federal Court in Petrojasa has ruled that the answer is to be found by referring to Article 132 of the Federal Constitution, which says:-
The public service shall not be taken to comprise -
(a) the office of any member of the administration in the Federation or a State; or
(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; or
(c) the office of judge of the Federal Court, the Court of Appeal or a High Court; or
(d) the office of member of any Commission or Council established by this Constitution or any corresponding Commission or Council established by the Constitution of a State; or
(e) such diplomatic posts as the Yang di-Pertuan Agong may by order prescribe, being post which but for the order would be posts in the general public service of the Federation.
27. Therefore, reading Article 132(3) of the Federal Constitution in light of the Federal Court’s decision in Petrojasa, the Speaker of the Perak State Assembly is not a holder of a ‘public office’ or a ‘public officer’. As a result, an order under Section 44 of the SRA cannot be issued by the High Court against the Speaker of the Perak State Assembly. The Ipoh High Court was clearly wrong.
Privileges of the State Assembly – Court Cannot Inquire or Interfere
28. The Legislature and its Members – being the forum where our people’s representatives are allowed to express the voice the people without fear or favour – are given certain privileges and immunities from legal proceedings. That is why, for example, the Deputy Chief Umno, Y. B. Khairy Jamaluddin said this in response to the accusations made by DAP chairman Y. B. Karpal Singh in Parliament that UMNO Youth was responsible for sending bullets to Karpal Singh in February 2009:-
“Karpal should not hide behind parliamentary immunity to make accusations that had no truth and basis.”
(24 Hours For Karpal To Produce Proof On Bullets; Bernama, February 26, 2009)
http://www.bernama.com/bernama/v5/newspolitic.php?id=392618
29. Indeed, the august Legislature (Federal and State) could be said to be the Sovereign Branch among the 3 branches of Government, because the other 2 branches must carry out the wishes of the Legislature as expressed in a duly enacted legislation. Even though the Judiciary can still control the excesses of the Legislature, this could only be done by declaring that a particular legislation passed is invalid for being unconstitutional for contravening the supreme law – either the Federal of the State Constitution. How the legislature conducts its own affairs internally is, to be blunt, none of the Court’s business.
30. On this point, I can do no better than to quote N. H. Chan, a former Justice of the Court of Appeal:-
“The question is, can the courts decide on the validity of the proceedings in the Legislative Assembly?
The answer is staring right at us here in 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 6 exco members by the Speaker in the State Assembly cannot be questioned in any court.
Lord Denning tried to inquire into a private Act of Parliament on the ground that Parliament was misled by fraud but he failed. The case is Pickin v. British Railways Board [1974] A.C. 765. He recounted this in his book What Next in the Law at page 319:
“A little while ago there was a case where the British Railways Board got a private Act vesting a man’s land in the Board without payment. He alleged that Parliament had been misled by fraud. In the Court of Appeal we held that the judges could inquire into it. But the House of Lords overruled us. They held that no inquiry by the judges could be permitted.”
It is important to remember that the United Kingdom does not have a written constitution. What more when we have a written constitution which says that “the validity of any proceedings in the State Legislative Assembly shall not 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 also 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”.”
(How to judge the judge? By N. H. Chan, a former Justice of the Court of Appeal)
http://blog.limkitsiang.com/2009/03/06/how-to-judge-the-judge/
31. The Judge and the lawyers acting for BN here should therefore have borne in mind these fundamental concepts in Constitutional and Administrative law when dealing with this case.
Reform – Curtailing the Speaker’s Powers to Suspend Members
32. The Speaker of the State Legislative Assembly enjoys great power indeed. Sadly, the power could sometimes be abused.
33. Before the suspension of numerous Members of the State Legislative Assembly by the Perak Pakatan Rakyat Speaker in February 2009, on 25 April 2005, this awesome power of the Speaker has been used by the then Barrisan Nasional Speaker to suspend the then Selangor State Opposition Leader (now the Speaker) for 5 days. Y. B. Teng Chang Khim himself recounted this episode as follows:-
“The Speaker had repeatedly, for at least not less than 4 times, pronounced in the House in the morning session of the meeting on 25.4.2005 that I had been suspended for 3 days for the alleged offence. However, immediately after the meeting resumed in the afternoon, he announced that I had been suspended for 5 days. How could a judge pronounce an increased sentence on an offender for the very same offence? It is also a cardinal rule in law that a judge becomes functus officio after pronouncing the sentence which means he ceases his function as a judge when a sentence is passed. This is evidently another instance of disregard to rule and abuse of power by the Speaker.
Of course, under the Standing Order, if the Speaker deems the suspension of 5 days on a member is not sufficient, there is a provision under Rule 44(3) of the Standing Order that empowers the Speaker to name the member (in the Assembly meeting, a member can only ordinarily be called by the name of his constituency he represents) and followed by the motion from the frontbenchers to suspend that member for a period of time exceeding 5 days. This procedure was not complied with. Thus, the increased suspension of 5 days was null and void.”
(Press Statement by Y. B. Teng Chang Khim)
http://www.dapmalaysia.org/all-archive/English/2005/Aug05/bul/bul2773.htm
34. Nonetheless, the ‘legality’ or otherwise of the then Selangor Speaker was never questioned in Court by the then State Opposition, perhaps because they were well aware of, and/or chose to respect, Article 72 of the Federal Constitution.
35. No doubt, the power could be used undemocratically to oppress the minority/opposition – even by denying the leader of the minority/opposition from attending/speaking at the Assembly, as what happened in Selangor to Y. B. Teng Chang Khim. (Subsequently, the majority of the Selangor State Assembly resolved on 1 August 2005 to further suspend the service of Y. B. Teng for a period of 6 months with all his privileges and allowances stripped of, after serving the original 5 meeting days suspension, and thereafter another 1 year suspension with all his privileges and allowances stripped of if he refused to apologise to the SSA at the end of the 6 month suspension.)
(DAP’s Teng slapped with six-month suspension, Malaysiakini.com, 1 August 2005)
http://www.malaysiakini.com/news/38501
(DAP Central Working Committee Resolution, 3 August 2005)
http://www.dapmalaysia.org/all-archive/English/2005/Aug05/bul/bul2786.htm
36. At the end of the day, as things stand today, only the people could punish such undemocratic actions of the State Speaker through the ballot box. It is not up to the Court to question his actions.
37. Indeed, after what happened in Selangor in 2005 and in Perak in March 2009, for the benefit of both the current Ruling Regimes and the Oppositions, there is a strong case to be made that our Federal and State Constitutions should be amended to stipulate that under no circumstances should a Member of Parliament or State Assembly be suspended from attending any sitting of the Legislature. (Perhaps with the only exception being that those who are guilty of violent or intimidating physical conduct should be suspended briefly for emotions to calm down (so that we do not become like the Legislative Assembly of Taiwan or South Korea), such as what happened in the Kelantan State Legislative Assembly in November 2007 when Datuk Nozula Mat Diah (BN–Paloh) challenged Mohd Zaki Ibrahim (PAS–Kelaboran) to a fist fight.)
(Near brawl at Assembly; The Star, Tuesday, November 27, 2007.)
http://www.youtube.com/watch?v=zWxVxYymnws&eurl
http://thestar.com.my/news/story.asp?file=/2007/11/27/nation/19585197&sec=nation
38. This is because by denying a Member the right to attend/speak is tantamount to denying the people represented by that Member the right to attend/speak. However unpopular, unwelcomed or non-mainstream is the Member’s opinion, s/he should never be denied the right to attend/speak because it is precisely a fundamental tenet of democracy and freedom that even the minority of 1 should not be denied the right to persuade the Assembly – and the people as a whole, by extension – to agree with his/her views. Otherwise, it defeats the whole purpose of having any legislative meeting and the Legislature would become a mere rubber-stamp.
39. A Member might be behaving inappropriately during the Assembly, such as making racist or sexist comments or simply by being drunk, but it is my humble opinion that a rude, obnoxious, ‘kurang ajar’, uncivilized or disrespectful Member should still not be suspended because ultimately, s/he shall be judged and shamed by the public opinion and be penalized in the ballot box for his/her antics. If however the people of his/her constituency still decide re-elect a ‘savage’ to represent them in the next election, then I suppose they deserve whom they elect, and may God helps us all.
40. Be that as it may, as our democratic system and the law stands now, however wrong the Speaker might have been, it is still not open for the Court to question the validity of his actions. The sovereignty and privileges of the Legislature as enshrined in the Federal Constitution must be respected, or else we would have chaos and a constitutional crisis – just like in Perak right now.
Appendix – Why the Government Proceedings Act 1956 was enacted as law?
41. Lawyers and laymen alike tend not to be fully aware about just how important the GPA is. The GPA is one of the statutes which could be said to be of ‘constitutional’ importance. It protects our fundamental rights (especially the right to private property) as citizens against our governments, and hence upholds the rule of law.
42. To understand why the GPA was passed, we can refer to the case law on the English Crown Proceedings Act 1947 (“CPA”), because the GPA was modeled on the CPA. Briefly stated, the CPA was passed to make it possible for an ordinary citizen to sue the Government for private law wrong (such as breach of contract or tort of negligence) just like suing another fellow citizen. (As opposed to suing the Government for public law wrong, by seeking prerogative orders in Judicial Review proceedings.)
43. Before the CPA, a citizen of England was unable to sue the British Government directly for private wrongs. The Government (or ‘Crown’) was considered as ‘above the law’ in that sense, because of the feudal myth that “the Crown could do no wrong”.
44. However, this did not mean that the citizen had no remedy in law at that time. The citizen could still ‘sue’ the Government for private law wrong (except tort) by a cumbersome procedure called the ‘Petition of Right’. This was considered highly unsatisfactory. Therefore, reforms were carried out to make it easier and possible for an ordinary citizen to sue the Government for private law wrong.
45. This was confirmed by our Federal Court in Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 5 CLJ 321 @ para 70:-
“In Sabil Mulia (M) Sdn. Bhd. v. Pengarah Hospital Tengku Ampuan Rahimah & Ors [2005] 2 CLJ 122, the Court of Appeal at p. 131 stated:
We now turn to consider the position after 1948. It is axiomatic the Crown Proceedings Act 1948 was passed to improve the position of the citizen vis-a-vis his or her rights against the Crown. As Professor Wade in his article ‘Injunctive Relief against the Crown and Ministers’ [1991] 107 Lq R 4 at 6 says:
The Crown Proceedings Act 1948 was a remedial statute, designed to put the Crown, so far as it could properly be done, into the position of an ordinary litigant, so that justice could be done without obstruction by the Crown’s ancient immunities. As Lord Jauncey said in British Medical Association v. Greater Glasgow Health Board [1989] AC 1211 (where, incidentally, Lord Diplock’s Town Investment (Town Investment Ltd. v. Department of the Environment [1978] AC 359) dicta were once again disregarded), ‘the general purpose of the Crown Proceedings Act was to make it easier rather than more difficult for a subject to sue the Crown,’ and the extension of immunities would ‘run wholly counter to its spirit’.”
46. A more detailed discussion of the history and purpose of the CPA is found in the House of Lords case of Davidson (AP) v Scottish Ministers [2005] UKHL 74, where Lord Rodger of Earlsferry said:-
“60. …[the Crown Proceedings Act 1947 was] an Act whose general purpose was “to make it easier rather than more difficult for a subject to sue the Crown”, as Lord Jauncey of Tullichettle observed in British Medical Association v Greater Glasgow Health Board 1989 SC (HL) 65, 95.”
62. The 1947 Act was passed to try to cure various problems which litigants and practitioners had been experiencing. Some 60 years later, it is not easy to see those problems as they must have appeared to people at the time… But, perhaps, as good a starting point as any is the report of the Committee on Ministers’ Powers (“the Donoughmore Committee”) (Cmd 4060) published in 1932.
64. … at p 112, they confessed that “under the rule of law in England the remedy of the subject against the Executive Government is less complete than the remedy of subject against subject.” They then identified three “main defects” in the subject’s remedies against the government in England: (a) that, owing to the peculiar procedure in cases in which the Crown was a litigant, the subject was to some extent placed at a disadvantage; (b) that there was no effective remedy against the Crown in the county court and (c) that the Crown was not liable to be sued in tort.
65. As this account shows, the committee dealt separately with Crown side proceedings and other proceedings against the Crown. The three “main defects” concerned proceedings other than Crown side proceedings. Except in relation to tort, the defects were procedural. For instance, a litigant might have a perfectly good claim in contract against the Crown but he had to proceed by the cumbersome petition of right procedure…
67. In the 1947 Act Parliament set out, inter alia, to remedy the three “main defects” identified by the Donoughmore Committee. Part I deals with substantive law, Part II with jurisdiction and procedure in general. Part III covers judgments and execution, while Part IV contains miscellaneous and supplemental provisions…
72. The defects identified by the committee concerned the way that the Crown was treated differently from its subjects in cases where it could have been expected to be subjected to the same liabilities and procedures as a subject. So, for example, if I had a contractual claim against a shopkeeper, I could sue him by a relatively straightforward procedure in the county court or sheriff court, if I wished. But if my claim was under a contract with the Crown, in England I would have to bring petition of right proceedings in the High Court, while in Scotland I could not sue in the sheriff court. In both jurisdictions the Crown was not liable for acts which would have made an individual liable in tort or delict. Since, as I explain below, liabilities between individuals can be conveniently described as private law liabilities, what the Committee were highlighting in this part of their report were problems which litigants faced in bringing liability home to the Crown in the realm of private law. What the 1947 Act did, therefore, was to complete the programme of reform, begun with the 1938 legislation on Crown side procedures, by making changes in the substance of the private law and in the procedures used to sue the Crown in relation to its private law liabilities. In the words of a contemporary author, “On 1 January 1948, with the commencement of the Crown Proceedings Act 1947, there started a new era in Crown law. The subject has been given a remedy as of right against the Crown, both in tort and in contract, and the procedure governing litigation between subjects has, so far as possible, been applied to civil proceedings by and against the Crown”: R McMillan Bell, Crown Proceedings (1948), p iii.
73. Reform of the private law and its procedures in respect of the Crown was no insignificant matter. By concentrating on judicial review, lawyers and judges today may tend to forget the historical importance of the law of tort or delict as a way of vindicating the subject’s rights and freedoms.”
47. Clearly, the House of Lords in Davidson had made a very clear distinction between ‘public’ and ‘private’ laws when discussing the CPA. The CPA was only enacted to reform the private law obligations of the Government and did not deal with the public law obligations of the Government (in Judicial Review proceedings). Therefore, to apply the GPA to a Judicial Review proceedings in the way that the Ipoh High Court seemed to have done clearly shows that the Judge and the lawyers did not fully comprehend what the GPA was all about.
