The regurgitation of not administering justice according to law in written judgment of Nik Hashim
By NH Chan (Loyarburok)
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 had the authority to declare a seat vacant.
“The Election Commission is the rightful 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 Seri S Augustine Paul and Datuk James Foong.
Last month, Party Keadilan Rakyat’s Jamaluddin Mohd Radzi (Behrang) 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 Commission 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 31(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 “(t)he 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 June 8, 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.
