18 April, 2009

When the highest court in the land could bring down the Government of the day

The judges of the Federal Court have failed the people and the government of this country when they chose to ignore the law of the Constitution of Malaysia. In other words the judges have refused to do justice according to law.

Article 72, Clause (1) of the Federal Constitution clearly states that "the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court."

The front page of the Star newspaper of Friday, 17 April 2009 carries this startlingly outrageous decision of the Federal Court. The headline proclaims “Court: Siva does not have right to suspend seven”. The report reads:

"PUTRAJAYA: The Federal Court has unanimously ruled that Perak Assembly Speaker V Sivakumar does not have the power to suspend Mentri Besar Datuk Zambry Abd Kadir and six state executive council members from attending the assembly.

It granted a declaration that the seven assemblymen were entitled to take part in all the assembly sittings and to carry out their duties.
Court of Appeal president Justice Alauddin Mohd Sheriff, who chaired a five-man panel yesterday, said the Speaker’s decision to suspend the seven applicants was ultra vires (outside the law) and invalid.

… The other judges were Chief Judge of Malaya Arifin Zakaria and Federal Court Judges Nik Hashim Nik Ab. Rahman, S Augustine Paul and Zulkefli Ahmad Makinudin."


NOW that a sitting of the Perak legislative assembly sitting has been called for 7 May, another showdown is expected because it is being convened without speaker V Sivakumar's consent.

In such a case, constitutional law expert Prof Dr Shad Saleem Faruqi believes Perak's constitutional crisis is far from over despite how recent court decisions have appeared to favour Barisan Nasional (BN).

The court has ruled that the three independents from Behrang, Changkat Jering and Jelapang remain as assemblypersons, while the BN's Menteri Besar Datuk Dr Zambry Abdul Kadir and six executive councillors had their suspensions from the assembly lifted.

"There is still a deadlock because the speaker would not want this sitting to be held," Shad Saleem tells The Nut Graph.

Notices to Perak assemblypersons that the legislative assembly would convene on 7 May were issued on 17 April by the state secretary's office.

The sitting has to be held before 13 May, the end of the six-month deadline since the last assembly was convened in November 2008. Failure to do so would mean automatic dissolution of the assembly and fresh elections, which the BN has been trying to avoid since their takeover of the state on 5 Feb.

The likely agenda in the 7 May sitting, since it is being convened by the BN side, is to pass a motion of confidence on Zambry as menteri besar and to elect a new speaker to replace Sivakumar.

Shad Saleem says there was once a case in India where a state assembly was adjourned sine die (indefinitely) as soon as the house sat because the speaker did not want the sitting held.

"If Sivakumar does the same, then the constitutional crisis continues," Shad Saleem explains.

The law professor at Universiti Teknologi Mara also adds that "it was an open question" on whether the assembly secretary could issue the notice convening the assembly on the orders of Zambry. "Usually, the assembly secretary acts on the instructions of the speaker."

Shad Saleem says the only solutions apparent to him was to either declare emergency rule in Perak, or the sultan on the advice of the menteri besar could prorogue the assembly and then use his royal prerogative to call a new session.

Meanwhile, Perak Speaker V. Sivakumar has suspended the legislature’s secretary Abdullah Antong Sabri for issing a notice to convene the state assembly on May 7 without his knowledge.

But it remains unclear if the suspension will have any effect on the notice to call the assembly just six days before a constitutional deadline to do so.

"I hereby agree to appoint Mohd Misbahul Munir Marduki to replace him as the secretary of the state assembly until a further decision from me," Sivakumar told reporters here today, citing Abdullah's action as insubordination.

"Meanwhile, the purported sitting (of the assembly) on May 7 must not proceed pending the clarification. The sitting may have to be adjourned to another date due to the requirement to give a 14-day notice to the state assemblymen," he said.

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