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Wednesday, April 15, 2009

> Counsel: Federal Court entering dangerous territory

Federal Court was today warned that it would be entering into a dangerous realm by trying to examine the powers of Perak state speaker in suspending BN Menteri Besar Zambry Abd Kadir and his six excos.

Speaker V Sivakumar's lawyer Sulaiman Abdullah told the apex court that the decisions made by the speaker was non-justiciable (not open for the courts to deliberate and decide upon).

"This is something which the courts cannot do due to the principles of separation of powers. The distinctive jurisdiction of the legislature and the judiciary are seen to be challenged.

"This is the first time in Malaysian history that such an unprecedented move is being done (by the courts) on the legislature," submitted the senior counsel.

Sulaiman (photo) said that case laws from the Commonwealth, including a recent United Kingdom case, supported the non-justiciability principle whereby the court cannot look into matters pertaining to legislature.

"Right or wrong, the decision of the speaker cannot be challenged by the court. It can only be reviewed by the House (assembly) and not the court," he said.

The issue before the five-member Federal Court panel is the suspension meted out by Sivakumar against Zambry and his six exco members after Barisan Nasional had formed the state government in February without the assembly being dissolved.

The new MB was slapped with an 18-month suspension while his cabinet members have been suspended for one year.

Earlier in the morning the Federal Court rejected a preliminary objection raised by Sulaiman that Zambry and the exco members had used a wrong procedure in filing their suit.

Following that decision, the court said it can hear the merit of Zambry and his exco members' application and proceeded to do so.

Sulaiman: It's a great mischief

And it was at this stage that the question of whether Sivakumar's action was justiciable cropped up.

Court of Appeal president Alauddin Md Sheriff who is heading the panel subsequently allowed Sulaiman to submit on the matter.

"The only body to examine the rightful or wrong action is the legislature. It is a great mischief if this is reviewed by the court," submitted Sulaiman.

While Sulaiman was submitting, Chief Judge of Malaya Ariffin Zakaria and Federal Court judge S Augustine Paul was seen interjecting by posing several questions to the senior lawyer.

Ariffin asked what if the suspension order was outside the scope of judicial review and what if the speaker decided in an extreme case to disqualify 30 elected representatives.

Sulaiman said then a new assembly should be held after holding a fresh election.

He pointed out that the speaker enjoyed immunity just as the one enjoyed by the attorney-general (AG).

"As we ascribed to English and Commonwealth laws, we have to accept and respect the rights of the legislature and the speaker's powers."

"It would be up to the speaker to decide and his decision is final. No evidence can be brought (against the speaker) either way," he said.

In the end, Sulaiman submitted that the speaker enjoyed parliamentary privileges and his action was non-justiciable.

AG: Speaker questioned sultan's prerogative

AG Abdul Gani Patail in reply however submitted that the doctrine of the supremacy of Parliament was not applicable to Malaysia.

"England does not have a written law compared to Malaysia and as such the courts there could enter and look into the matter if there are questions in law," he said.

Furthermore, Abdul Gani said the Committee of Privileges chaired by the speaker which meted out the suspension orders did not have any judiciary powers.

It (the committee), he said, cannot accord suspension to the elected representatives as it only had investigating powers.

"By giving the suspension, the speaker had acted ultra vires (beyond the powers) as he acted beyond the standing orders as slated in the Perak constitution," he said.

The AG also pointed out the suspension order given to the applicants was a result of a solitary reason, namely Zambry's appointment by the Perak sultan as the new menteri besar and the others as the exco members.

Abdul Gani said this can be seen in the charges levelled on the applicants and this seemed to challenge the sultan's prerogative to appoint the menteri besar and the exco members.

Among the offences listed by the speaker on the seven, as cited by the AG, were that they had unlawfully become menteri besar and exco members, they had unlawfully occupied or were in possession of the state offices and had committed contempt.

He submitted that it was the sole prerogative of the sultan to appoint the menteri besar under Article 16(1) of the Perak constitution.

"We all know that the sultan's powers in non-justiciable. What I am saying is that since this is the prerogative power by the sultan, it (the appointment) cannot be challenged," said the AG.

"This has nothing to do with the Committee of Privileges but a challenge to his royal highness' authority. As such, the speaker had committed ultra vires of the Perak constitution," he said.

Counsel Firoz Hussein Ahmad Jamaluddin for Zambry and the six exco members then submitted that he was adopting all the points raised by the AG.

He also highlighted a South African Supreme Court case where there was also a decision to suspend a member of parliament but the court intervened and ruled it had justiciability and ruled the suspension as void.

Hearing continues on Thursday - Malaysiakini.