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Friday, March 13, 2009

> Separation of Powers

When Judicial Commissioner Ridwan Ibrahim put Perak state assembly Speaker V Sivakumar in a straitjacket and curtailed his powers, two of Malaysia’s most illustrious judges must have been turning in their graves.

Tan Sri Chang Min Tat and Tan Sri Eusoffe Abdoolcader were legal giants, men of integrity, honesty, professionalism and whose legal judgments stood up to the closest scrutiny.

They were also among the judges who steadfastly upheld the position that the courts should not interfere or question the proceedings of Parliament or a state assembly, giving life to the doctrine of separation of powers between the executive, legislature and judiciary.

If Ridwan is interested, the score is 5-0 against him. A check shows that five cases have been brought before the courts by politicians seeking a variety of restraining orders and injunction. The plaintiffs wanted the courts to stop a defendant from dissolving the legislative assembly; wanted an order of prohibition against members of the Committee of Privileges and an injunction to restrain the removal of a Speaker.

In all the cases, the courts were loath to interfere, relying heavily on Article 72(1) of the Federal Constitution which reads: “The validity of any proceedings in the Legislative Assembly of any state shall not be questioned in any court.’’

The five cases were:

•Fan Yew Teng v Government of Malaysia.

•Lim Cho Hock v Speaker, Perak State Legislative Assembly.

•Tun Datu Haji Mustapha bin Datu Harun v Legislative Assembly of State of Sabah.

•Tun Datu Haji Mustapha bin Datu Harun v Tun Datuk Hj Mohamed Adnan Robert.

•Haji Salleh bin Jafaruddin v Datuk Celestine Ujang.

In the Lim Cho Hock case, the plaintiff sought a declaration that the offices of the Menteri Besar and President of Ipoh Municipal Council cannot be held by the same person. He also wanted the court to rule that the appointment of the MB as President of the Council was null and void and that the state authority had exceeded its powers in making this appointment.

Justice Abdoolcader ruled that it was clear that the courts have no jurisdiction over proceedings of the legislative assembly.

It is not only in Malaysia that the courts have held that it was wrong and improper for actions or proceedings of the legislature to be questioned. Courts in India, Australia, Canada and New Zealand also have stayed true to this principle in cases such as Prebble v Television New Zealand, P V Narasimha Rao v State, Harnett v Crick.

So when Judicial Commissioner Ridwan Ibrahim granted an order restraining Sivakumar from convening any unlawful meetings, he was entering unfamiliar territory and he was going against legal precedent and the constitution.

Barisan Nasional officials and their supporters argue that Sivakumar overreached and acted outside his jurisdiction when he accepted the undated resignation letters of three Pakatan Rakyat lawmakers.

They also argue that Sivakumar’s decision to suspend Datuk Zambry Abdul Kadir and his six executive council members was unconstitutional and against the state constitution.

The only snag is that the Perak state constitution makes clear that “there shall be freedom of speech and debate or proceedings in the assembly and such freedom of speech and debate or proceedings shall not be liable to be impeached or questioned in any court or tribunal out of the assembly’’.

So can nothing be done against a rampaging Speaker? Isn’t there some action that can be taken against a partisan Speaker?

Of course, there is. Just not through the courts.

So how did Barisan Nasional react after the courts ruled in the five cases that proceedings in the legislature should not be questioned by the courts?

They did nothing because they were the beneficiaries - The Malaysian Insider.