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Monday, April 13, 2009

> Federal Court to decide Tomorrow

The Federal Court will decide tomorrow if it can proceed to hear submissions on whether Perak Speaker V. Sivakumar's decision to suspend the entire state executive council from the assembly was valid.

Sivakumar's lead counsel Sulaiman Abdullah raised a preliminary objection today, arguing that a judicial review under Order 53 of the rules of the High Court, was required for the case to be brought to the apex court, and not just an originating summons.

The suit, filed by Perak Menteri Besar Datuk Zambry Abd Kadir and his six executive councillors in the Ipoh High Court, seeks to declare the suspensions null and void.

The suspensions would theoretically give the ousted Pakatan Rakyat (PR) government a majority in the next assembly sitting which must take place by next month. It could then topple the Barisan Nasional (BN) government and dissolve the assembly for fresh polls.

The question of whether the speaker is a public authority will be central in the Federal Court's decision on whether to hear the case.

If the speaker is a public authority, Sulaiman argued, then the issue is a matter of public law and the declaration sought by the executive council would require a judicial review and the use of an originating summons in these circumstances would be irregular.

This breach of procedure was however, argued against by the executive council's lead counsel Firoz Hussein, who insisted that the private rights of the seven assemblymen to sit in the assembly had been wronged and that the speaker himself was not a public authority as mentioned in Article 160 of the Federal Constitution.

Firoz later explained to reporters that Order 53 governed prerogative writs, meaning that it would force the Speaker to take a certain action or prohibit him from doing so.

"But under the doctrine of separation of powers, we are only seeking a declaration of rights, so we do not need a judicial review," he said.

However, Perak DAP chief Datuk Ngeh Koo Ham told reporters that this was exactly what they have been asserting all along.

"We have been saying that due to the separation of powers, the courts cannot rule on a decision by the Speaker," he said, adding that a declaration by the Federal Court could not compel the Speaker to act in any way.

Today's proceedings comes on the back of a recent Ipoh High Court decision where Sivakumar was deemed a public official and must therefore be represented by the state legal advisor.

However, the Court of Appeal quashed this decision, stating that he "is not a state officer or the government of the state." - The Malaysian Insider.