Zambry vs Speaker: Grounds of Judgment from Paul Augustine

Selected extracts of the grounds setting aside the suspension of Zambry & 6 others follows.

On the objection that proceedings should have been commenced by way of judicial review, the Court held:

The rule in O’Reilly v Mackman [1982] 3 All ER 1124 has been adopted by the Court of Appeal in cases such as Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2002] 2 MLJ 413, Dato Seri Anwar bin Ibrahim v Perdana Menteri Malaysia & Anor [2007] 4 MLJ 422 and Ahmad Jefri bin Mohd Jahri @ Md Johari v Pengarah Kebudayaan & Kesenian Johor & Ors [2008] 5 MLJ 773. However, due to the uncertainties in the rule in O’Reilly v Mackman [1982] 3 All ER 1124 in England itself the adoption of the rule in that case locally must be done so with care and caution as in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2002] 2 MLJ 413. The result is that the remedies of declaratory relief under Order 15 rule 16 and certiorari must still be regarded generally as being alternatives and mutually not exclusive.

However, whatever restriction there may be on the use of Order 15 rule 16 it will not apply where a person seeks to assert, inter alia, his right to a legal status. This is statutorily recognised in the form of section 41 which reads as follows:

“Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintif need not in that suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so.”

…

Clearly the challenge of the Applicants to their suspension from the Legislative Assembly is a matter that affects their legal status within the meaning of section 41. They are therefore entitled to seek a declaration of their legal right pursuant to Order 15 rule 16. It cannot be argued that they ought to have proceeded under Order 53 itself for declaratory relief for two reasons. Firstly, Order 53 does not say it is the exclusive provision for the grant of declaratory relief as stated by Lord Diplock in O’Reilly v Mackman [1982] 3 All ER 1124 at p 1134 in the following words,

…

Secondly, when the Specific Relief Act 1950 was enacted Order 53 was not in existence and, thus, adherence to it could not have been contemplated.

Be that as it may, and in any event, in cases of this nature the most appropriate form of relief is by way of declaration. In support reference is made to The Declaratory Judgment 2nd Ed by Lord Woolf where it says at p 90,

…

Accordingly, we dismissed the objection raised and proceeded to hear the motion.

On the issue whether the Speaker’s decision was justiciable or otherwise, the Court held:

It is perhaps necessary to resolve the question of justiciability of the orders sought by the Applicants before proceeding any further. This is governed by Article 72(1), It reads as follows:

“The validity of any proceedings in the Legislative Assembly of any state shall not be questioned in any court.”

The operative words in the provision are “….proceedings in the Legislative Assembly…”. In considering the meaning of the expression “proceedings in Parliament” Parliamentary Practice 20th Ed by Erskine May says at p 92,

The primary meaning, as a technical parliamentary term, of “proceedings” (which it had at least as early as the seventeenth century) is some formal action, usually a decision, taken by the House in its collective capacity. This is naturally extended to the forms of business in which the House takes action, and the whole process, the principal part of which is debate, by which it reaches a decision.

An individual Member takes part in a proceeding usually by speech, but also by various recognized kinds of formal action, such as voting, giving notice of a motion, etc., or presenting a petition or a report from a Committee, most of such actions being time-saving substitutes for speaking. Officers of the House take part in its proceedings principally by carrying out its orders, general or particular. Strangers also can take part in the proceedings of a House, e.g. by giving evidence before it or before one of its committees, or by securing the presentation of their petitions. While taking part in the proceedings of a House, members, officers and strangers are protected by the same sanction as that by which freedom of speech is protected, namely, that they cannot be called to account for their actions by any authority other than the House itself.

In determining the scope of Article 72(1) it must be remembered that in Malaysia the constitution is supreme. As Suffian LP said in Ah Thian v Government of Malaysia [1976] 2 MLJ 112 at p 113,

“The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of state legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.”

…

It follows that Article 72 (1) must be read as being subject to the existence of a power or jurisdiction, be it inherent or expressly provided for, to do whatever that has been done. The Court is empowered to ascertain whether a particular power that has been claimed has in fact been provided for. The issues raised by the Applicants are therefore justiciable.

On the issue whether the Speaker’s decision was legal or otherwise, the Court held:

It is thus manifestly patent that there must be specific legal authority to take cognizance of and punish for contempt. This is particularly significant where the alleged contempt was committed beyond the walls of the Legislative Assembly. The need for such authority is recognised in Article XLIV of the Perak Constitution which reads as follows:

“(1) Subject to the provisions of the Federal Constitution and this Constitution, the Legislative Assembly shall regulate its own procedure and may, from time to time, make, amend and revoke standing Rules and Orders for the regulation and orderly conduct of its own proceedings and the conduct of business.”

The Standing Orders of the State Legislative Assembly of Perak was passed in 1988. The relevant Orders are Standing Orders 44, 89 and 90.

…

Standing Order 44 deals with disorderly conduct arising in the Assembly only. Standing Order 89 deals with the powers of interpretation by the Speaker of any of the Standing Orders. Standing Order 90 gives the Speaker power to regulate matters not specifically provided for in the Standing Orders and in doing so he shall have regard to the usages of Commonwealth Parliamentary practice so far as such usages can be applied to the proceedings of the Assembly subject to the requirement that they must not be inconsistent with the Standing Orders. As far as the application of Commonwealth Parliamentary practices in such matters are concerned what can be adopted are only their “usages” which is defined in Black’s Law Dictionary 6th Ed as:

“A reasonable and lawful public custom in a locality concerning particular transactions which is either known to the parties, or so well established, general, and uniform that they must be presumed to have acted with reference thereto. Practice in fact. Electrical Research Products v Gross, CCA Alaska, 120F 2d 301, 305. Uniform practice or course of conduct followed in certain lines of business or professions or some procedure or phase thereof. Turner v Donovan, 3 Cal App 2d 485, 39 P 2d 858, 859. Usage cannot be proved by isolated instances, but must be certain, uniform and notorious.”

As Parliamentary Practice 20th Ed by Erskine May says at p 72,

“Some privileges rest solely upon the law and custom of Parliament, while others have been defined by statute.”

However, as far as the law of contempt is concerned Kielley v Carson 4 Moores PC Cases 63 and Doyle v Falconer LR 1 PC 328 make it clear that in the Commonwealth countries there must be specific statutory provision to have jurisdiction to deal with it. With regard to the adoption of the power to deal with contempt of the House of Commons Members of Parliament: law and ethics by Gerard Carney says at p 168,

“The only certain basis for the incorporation of all the privileges of the House of Common in colonial legislatures was by their wholesale adoption by statute.”

…

Thus the power to deal with contempts, not specifically provided for in the Standing Orders, is not something that the Speaker can take cognizance of under Standing Order 90 as it requires a law to that effect.

Be that as it may, the summonses which were issued to the Applicants were done so pursuant to Standing Order 72. It reads as follows:

(1) There shall be a Committee to be known as the Committee of Privileges to consist of Mr. Speaker as Chairman and six members to be appointed by the Assembly as soon as may be after the beginning of each session. There shall be referred to this Committee any matter which appears to affect the powers and privileges of the Assembly. It shall be the duty of the Committee to consider any such matters to them referred, and to report on them to Assembly.
(2) When the Assembly is not sitting a member may bring an alleged breach of privilege to the notice of Mr. Speaker who may, if he is satisfied that a prima facie breach of privilege has been committed, refer such matter to the Committee, which shall report thereon to the Assembly.
(3)The Committee shall have power to send for persons, papers and documents, and to report from time to time.

Standing Order 72 (1) authorises the Committee of Privileges to take cognizance of “… any matter which appears to affect the powers and privileges of the Assembly …”. In order for a “… matter …” to have such an effect it must be unlawful or be an infringement of the powers and privileges of the Assembly. It is only then that it can be said that it appears to affect the powers and privileges of the Assembly. The summonses against the Applicants state that their acts constitute contempt. As contempt has not been specifically prescribed for, the acts cannot come within the ambit of Standing Order 72 (1). Even the Legislative Assembly (Privileges) Enactment 1959 enacted by the Perak legislative Assembly does not contain any provision for the offence of contempt and its punishment. By way of contrast reference must be made to the House of Parliament (Privileges and Powers) Act 1952 which makes specific provision for contempt.

The corollary is that Article XLIV of the Perak State Constitution read together with the Standing Orders of the Legislative Assembly and the Legislative Assembly (Privileges) Enactment 1959 do not provide for the offence of contempt and the resultant punishment of suspension from attending sessions of the State Legislative Assembly.

In the upshot the suspension of the Applicants on account of the alleged contempt committed by them is null and void. Accordingly we answered Questions (i) and (ii) in the affirmative. We did not find it necessary to answer the other questions. It was also our view that the answer to the two questions is sufficient to make a final determination in the case. We therefore granted order in terms of prayers (a) (1) and (4) in the originating summons. We made no order as to costs.

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Courtesy Of Suara Keadilan