Ramifications of the inconvenient verdict of the Pujut case

The Kuching High Court. Photo source: Kuching Court website

For once the wheel of Justice turned quickly last week, and its rapid rotation produced, last Saturday, a result that not only reinstated Dr Ting Tiong Choon to his status as the Honourable Member for Pujut in the Dewan Undangan Negeri Sarawak, but caused much inconvenience to many interested parties, particularly:

(a) The Election Commission, which had already announced the nomination and polling dates for the by-election, having to cancel the by election at the eleventh hour;

(b) those 7 persons who have already taken the nomination papers, to be candidates for the by-election;

(c) the main political parties, namely the Barisan Nasional and DAP having to stop scheduled announcements of their candidates;

(d) the Dewan UndanganNegeri having to accept the return of Dr Ting into its membership fold after its decision was overturned by the Court;

(e) the Speaker, whose actions and conduct during the proceedings on the “ministerial motion” introduced by Member for Bawang Assan, Dato Sri Wong Soon Koh, received stringent criticisms from Justice Douglas Cristo Primus Sikayun and he and the Minister, together had to pay a total sum of RM101,000.00 costs to Dr Ting (including the RM1,000.00 costs for the dismissal of the Speaker’s application to strike out Dr Ting’s case) and

(f) as the costs was awarded personally against the Speaker and the Minister concerned, who are parties to the case but independently represented; and thus, uncertainty reigns as to whether these costs can be paid out of the State’s Consolidated Fund (i.e. Government revenues).

A greater, and ostensibly more disturbing, inconvenience that arises as a consequence of  Justice Sikayun’s decision, is that the Legislature and the proceedings in the Legislature would henceforth be under greater and potentially more constant, oversight by the Judiciary. On the basis that in Malaysia, which has a written Constitution, it is not the Legislature that is supreme but the Constitution (either Federal or State), the Judge ruled that “the power of Parliament and the State Assemblies are limited by the Federal Constitution and State Constitution.”

He relied on 3 Federal Court decisions, namely Dewan UndanganNegeri Selangor v MohdHaferizam; DrZambry Ab Kadir v Sivakumar; and Yang Di Pertua, Dewan Rakya’at v Gobind Sing Deo for the legal principle that for a State Assembly to avail itself of the  privileges granted under Article 72(1) of the Federal Constitution, it must act within its constitutional powers and  legal limits.

These 3 apex court decisions also said that the Dewan must comply with the rules of natural justice, or due process must be accorded to someone whose rights are to be taken away by the Dewan. In this case, Justice Sikayun ruled that the interests of the 8,899 voters who elected Dr Ting to the Dewan in 2016, had to be taken into account in determining what due process ought to have been accorded to Dr Ting.

The implications of this decision, assuming it would be upheld by the Court of Appeal which itself is bound by the three Federal Court decisions aforesaid, would henceforth subject the Dewan’s acts and conducts to the scrutiny by the Courts as to whether they can be shielded by parliamentary privileges. If the Dewan acted outside its constitutional powers or legal limits or failed to apply the principles of natural justice, these acts or conducts may be declared constitutionally unlawful and nullified accordingly by the Courts.

Also, the Judiciary is asserting its judicial powers including that which is specifically granted by the Federal Constitution to be the sole and final interpreter of constitutional provisions. The Legislature, though it must act within the provisions of the supreme law, has no power to interpret the Constitution. And, as in this case, where the Judge found the Speaker had wrongly interpreted Articles 23 and 24 of the Federal Constitution, fatal consequences ensued.

Apart from that, the decision also strongly drove home the point that in its exercise of judicial powers, it will ensure strict compliance with constitutional provisions such as  Article 118 of the Federal Constitution, which prescribed that only an Election Court, and not the Legislature, is the final authority to decide whether a person is duly elected to a Legislature. Additionally, the Courts will be the arbiter as to whether any decision made by the Dewan is not only lawful, but also, is a decision made in accordance with established principles of natural justice.

Justice Sikayun’s decision has not only political dimensions (which will not be discussed here) indeed sets new legal standards for the conduct of proceedings in the State Assembly.

To the partisans, the Judgment appears to convey a message which Lord Asquith ( a famous English Law Lord) once pronounced, “Be you ever so high, the Law is above you”. To the neutrals, it is a timely, and possibly inconvenient, reminder to all who hold public office.

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