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Sunday, April 19, 2009

> On the Separation of Powers

Perak’s political imbroglio has more twists and turns than the Sungai Perak that meanders lazily through the silver state and is getting murkier by the minute as lawyers say the recent Federal Court’s decisions have not cleared the matter.

PAS legal advisor Mohamed Hanipa Maidin and other lawyers dispute media reports that say Barisan Nasional now has an “undisputed majority” in the Perak state assembly.

The banner headlines came following the Federal Court’s recent declaration that Speaker V. Sivakumar’s suspension of Mentri Besar Datuk Seri Zambry Abd Kadir and his six executive councillors was null and void.

Coupled with the apex court’s earlier ruling that it is the Election Commission (EC) and not the speaker that decides an electoral vacancy, many are concluding that BN now leads 31-28.

“The truth is that out of 10 court orders sought by Zambry and his six exco members, only two orders were granted by the Federal Court. I dare to say that these two orders are ineffective and inconsequential in nature. They are not, in any manner, capable of reining in the speaker’s power,” Hanipa wrote in his column in The Malaysian Insider today.

Other lawyers agree, saying it is either a very lazy analysis, or an attempt to pull the wool over the eyes of the masses and perhaps even a rewriting of history.

It is important to put the record straight, even if in the end, it does not matter, given the way BN are obviously going to force their way through.

The fact is that all 10 assemblymen in question are not out of the woods yet, and in the case of Zambry and his exco, they are still without the right to attend the assembly.

Putting aside the arguments of how fair, legal or justiceable the Federal Court decisions were, and assuming them to be legitimate rulings, they do not mean that any of the 10 assemblymen in question are guaranteed a seat in the hastily called for May 7 sitting.

In the case of the three turncoat assemblymen who were declared to have resigned by Sivakumar, the Federal Court only ruled that the EC decides on a vacancy.

But Pakatan Rakyat can still ask the court to decide if the EC’s decision was right or wrong.

Granted, until it files such a suit, the three will claim that there is no reason they should not be considered members of the House.

So fine, BN can place 24 assemblymen in the assembly on May 7.

But in the case of the seven exco, which is the actual decider of majority, it is clear that they do not yet have legitimate licence to enter the assembly. Just because the Federal Court decided that the suspension by the speaker was invalid does not mean that they can just waltz into the assembly.

Firstly, as several legal experts have opined, the decision was only a declaration and not a mandamus or injunction, which are court orders that force a party to do or refrain from doing something or a certiorari, which quashes an earlier decision or action.

This means that the court’s decision is merely an opinion or interpretation of the law, not an enforcible call to action on the speaker.

Secondly, it must be noted that only two declarations sought by the applicants were granted, which were to declare the suspensions for Zambry and also his exco, null and void.

The most pointed omission was the application to declare that Zambry and his exco have the right to attend and take part in all assembly meetings.

That the court did not rule definitely on this implies that it either does not know the answer to this or that the seven still, in fact, cannot attend.

This is linked to the most solid argument so far for PR, that the tree assembly of March 3, has so far not been established as invalid.

During the course of the Federal Court hearing, both legal teams had argued as to whether the speaker’s decision could be considered as part of assembly proceedings, since it took place outside the assembly and concerned the acceptance of appointments to the exco, which also took place outside the assembly.

But under the rain tree, the 27 PR assemblymen unanimously adopted the suspension of the entire exco, thereby making it part of assembly proceedings. As speaker, Sivakumar cannot cast a vote.

So while the speaker’s suspension of the seven may not stand, who is to say the suspension by the assembly will not?

Legally speaking, the score now stands at 28-24 in PR’s favour. That’s for the record, even if it makes no difference to BN.

Meanwhile, Penang-based social pressure group Aliran has asked Chief Justice Tan Sri Zaki Azmi to order  the Federal Court to review its decision concerning the suspension of Zambry and his six executive councillors.

“The CJ cannot remain unconcerned and unperturbed over what has taken place. He has to play his role as the guardian of the judiciary and salvage its reputation and restore people’s confidence in the rule of law,” Aliran president P. Ramakrishnan said in a statement.

“The decision of the Federal Court was termed as ‘a perverse judgment’ by none other than the much respected and highly regarded N.H. Chan, a former Court of Appeal judge. To the ordinary Malaysians it was a scandalous judgment that had discredited the five judges and tarnished the judiciary beyond repair,” he said.

Ramakrishan quoted Chan’s arguments that provisions within Article 72 of the Federal Constitution confer certain rights and immunity to safeguard the sanctity of the Legislative Assembly, which are spelt out very clearly.

“There is no ambiguity in what has been stated. Even laypersons have no difficulty in understanding these provisions,” he said.

Under Article 72, the privileges of Legislative Assembly are as follows:-

(1) The validity of any proceedings in the State Assembly of any State shall not be questioned in any court.

(2) No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the Legislative Assembly of any State or of any committee thereof.

(3) No person shall be liable to any proceedings in any court in respect of anything published by or under the authority of the Legislative Assembly of any State.

“These five judges are responsible if Malaysians continue to be cynical and skeptical about our judiciary. And we have to wonder how many brave and honest judges are left in the judiciary who will respect the Federal Constitution and remain true to their conscience in delivering justice,” Ramakrishnan said - The Malaysian Insider.