The Legislature’s Immunity: Absolute or Qualified?

1. Some have argued on the strength of Article 72 (1) of the Federal Constitution “the validity of any proceedings in the Legislative Assembly of any state shall not be questioned in any court.”

2. It is not their claim solely. It is actually a pure construction of the words and the limbs of the above quoted Article, indeed.

3. Having contravened a piece of the provisions of the Constitution, referring to the Federal Court’s arbiter on the dispute in the Perak saga, one retired judge have argued that the Federal Court’s decision was a perverse one.

"I would agree if the learned judge argued that there is ‘per incurriam’ but not a ‘perverse judgment’."

4. To my knowledge with the assistance of Black’s Law Dictionary, there is no such thing as ‘a perverse judgment’. Only the oft-quoted legal dictionary acknowledges ‘a perverse verdict’, where ‘a jury verdict so contrary to the evidence that is justifies the gravity of a new trial” which was not a situation in Sivakumar case

5. If a perverse situation includes a perverse judgment, what the brethren in the highest Court should do then? Re-hearing of it own case and reconsidering of it own decision?

6. If so, where should be the finality of certain matter decided by the Court of law?

7. I would agree if the learned judge argued that there is ‘per incurriam’ but not a ‘perverse judgment’. But this is accepted by me with reservation as I did not find any per incurriam judgment in the Federal Court's decision.

8. Moreover, to interpret Article 72(1) as immunity for the legislature, it would render the legislature with a boundless power.

9. Besides a need for checking and balancing the legislature’s power, the dispute and grey area of law compelling the head of the legislature himself referring and submitting to the Court to arbiter.

10. As such the immunity of the legislature enshrined in Article 72(1) is a qualified one, if not the ambiguity will prevail and subsist since there is no party initiating a suit for the Court to shed the light on, by claiming the absolute immunity of the legislature.

11. The Perak Crisis begot a failed state. With the intention to avoid the state of emergency and consequently the interference of the army into the civillian's affairs, the only remedy is the Court’s Governance!