> Kugan’s post mortem files seized from UMMC

All files, pictures and samples in relation to A. Kugan, who died in custody, were seized by police from a hospital which had carried out a second post mortem on Jan 25.

A search warrant was issued to the University Malaya Medical Centre here before policemen took away the items.

Kugan was arrested on suspicion of car theft on Jan 15 but died at the police lockup five days later.

Federal Criminal Investigation Director Datuk Seri Bakri Zinin told The Malaysian Insider police were instructed to make the seizures by the Attorney-General and the move was part of ongoing investigations into the case.

Lawyer N Surendren, who is representing Kugan’s family, said he was shocked with the latest development adding police had been at UMMC the whole morning.

“I have been informed in writing by the hospital because Kugan’s family had sought the second post mortem which was carried out there.”

Meanwhile Surendren also slammed the findings of an independent committee formed by the Health Ministry today which concluded he died due to water in the lungs or acute pulmonary edema, inflammation of heart muscles or acute myocarditis which was compounded by blunt force.

Surendren said the committee has effectively found a third cause of death which is inflammation of the heart, which was never found by either pathologist who carried out the first and second post mortem.

The first post mortem carried out at the Serdang Hospital by Dr Karim Tajuddin on Jan 21 stated Kugan’s cause of death as “acute pulmonary edema” or fluid in the lungs.

A second post mortem was carried out by Dr Prashant N. Samberkar and he found Kugan died from a condition known as rhabdomyolysis, which is the rapid break-down of skeletal muscle tissue which will lead to kidney failure.

Other discrepancies, peviously reported were V-shaped marks which were described as abrasions in the Serdang Hospital report but burn wounds with a heated object in the second report.

The first report only found 22 external injuries on his body while the second found 40 such injuries.

The second post-mortem revealed congested blood vessels in Kugan’s brain haemorrhage in his neck muscles, heart and spleen, and contradicts the Serdang Hospital report which found these organs were normal.

The Serdang Hospital report says other organs in Kugan’s body were examined and were normal but the second findings showed that the organs were intact and not even removed for dissection, before the second post-mortem was conducted.

Surendren said the committee had “second guessed” the findings of the two doctors without the benefit of carrying out a post mortem and labelled the committee a whitewash.

He said unlike an on going inquiry by the Malaysian Medical Council into the case, the government independent inquiry had not called in family members or himself to give evidence or observe proceedings.

Earlier at a press conference in Putrajaya, Health Director-General Tan Sri Dr Ismail Merican disclosed the findings of the committee which was formed to investigate the discrepancies in the two post mortems. An eight page report was released to the press.

The 10-men committee unanimously agreed there was no evidence to show that the deceased had been ‘branded’ or been given repeated application of heat with an instrument or object as reported in the second post mortem.

In their opinion the injuries were the result of repeated trauma by a blunt and flexible object, like a rubber hose.

The committee found that all injuries on Kugan were insufficient to directly cause death and the discrepancies in the two reports were due to the absence of communication between the two pathologists, the misinterpretation of post mortem changes and some of the injuries by the second pathologist.

They concluded the discrepancy was not because of any foul reporting, misleading of information and there was no intention to hide information.

Dr Ismail said the differences in the number of external injuries found on Kugan, was because of different methodology used by the doctors. Dr Karim had tabulated 22 external injuries because he had grouped them by regions while Dr Prashant had listed some individually and some in groups, on the body.

He said the findings will be handed to the Attorney-General’s Chambers tomorrow - The Malaysian Insider.

> Strong Protest to EC decision

The Election Commission’s decision not to count the ballots at 14 of the 26 polling stations in the Batang Ai constituency after the by-election tomorrow has drawn strong objections from election watchdog Malaysians for Free and Fair Elections (Malfrel) and PKR.

The ballot boxes from the 14 stations will be transferred to the vote-tallying centre at the Lubok Antu Sports Complex where the ballots would be counted.

Malfrel and PKR have lodged separate protests with the commission, appealing for a review of the decision.

Alternatively, they have asked the commission to allow Malfrel officials or PKR agents to escort the commission officials to the tallying centre.

The 14 stations are Kesit, Engkari, Delok, Kumpang, Klampu. Sayat, Jela, Sempang, Bertik, Kachong, Patoh, Bilararap, Sepaya and Gugu.

Malfrel chief co-ordinator Peter John Jaban questioned why the commission decided not to count all the ballots at the polling stations.

He said returning officer Nelson Mujah had said that this was the practice in past elections.

He said the commission had denied Malfrel access to the counting centres.

PKR coordinator for the by-election Dominique Ng Kim Ho said the commission had given “logistic and weather considerations” as reasons why the ballot boxes had to be brought to the tallying centre.

Ng, who is also Padungan assemblyman, claimed that most of the 14 polling stations, which have a total of 3,312 registered voters, were located in opposition strongholds - The Star.

> Kedah PPP to defect to PKR?

The big announcement that PKR strategist Saifuddin Nasution has promised Datuk Seri Anwar Ibrahim will announce on Saturday probably concerns the defection of the “entire Kedah PPP” to PKR.

The defection, if it takes place, could have a significant impact on the outcome of the closely fought Bukit Selambau by-election.

PPP sources said the defection is being organised and led by former Kedah PPP chairman and incumbent PPP vice-president Datuk V. Nadarajah who when contacted declined to comment.

He was a former MIC Kedah youth leader and was expelled by MIC president Datuk Seri S.Samy Vellu for alleged "indiscipline" in the mid-1980s

Kedah PPP sources claim the defection involves some six divisions, 60 branches and about 6,000 members.

In Bukit Selambau itself there are 134 PPP branches and 11 are said to be crossing over to PKR on Saturday, the sources said.

“We are sick of the BN… enough is enough? That’s why we are leaving for PKR,” said one of the 11 branch leaders defecting to PKR.

Asked why they are defecting now and not earlier, he said: “Politically this is the best of times... the right time to cross over. We have some worth now. Who would want us after Tuesday?”

PPP president Datuk M. Kayveas when contacted by The Malaysian Insider today said he had heard of the defection “just now.”

“I am aware of it but I am not going to call up and stop them. Those who want to go can go, feel they are of no use in PPP, can leave. We don’t need this kind of members who constantly switch loyalties,” he said.

“Usually they would claim huge numbers were defecting when only a few are crossing over to give political impact to their claim. If this is the case I will sue anybody who does that,” Kayveas said.

Kayveas also said every PPP member has a membership card which must be returned with a resignation letter before that member is considered to have resigned.

“Until then we don’t consider a member has resigned. A mere announcement is not good enough for us,” he said adding disgruntled elements are always migrating here and there for better benefits.

Anwar’s ceramah and announcement is set to take place at Dewan Hock Seng, Sungai Lalang in Sungei Petani on Saturday night.

Former PPP wanita head L. Sarala is one of the 13 independents in the by-election where the main fight is between BN’s Datuk S. Ganesan and PKR newcomer S. Manikumar.

Bukit Selambau has 35,140 registered voters, comprising 50.2 per cent Malays, 29.5 per cent Indians and 19.3 per cent Chinese.

The by-election has created a record with 15 contestants, including 13 independent candidates - The Malaysian Insider.

> High Court allows A-G to be intervener in suit

The High Court here today allowed the application by Attorney-General Tan Sri Abdul Gani Patail to be an intervener in the suit brought by Mentri Besar Datuk Zambry Abdul Kadir and his six state executive councillors against Perak State Assembly Speaker V. Sivakumar for suspending them from state assembly sittings.

Sivakumar, as chairman of the state assembly’s rights and privileges committee, had suspended Zambry and the six executive councillors for 18 months and 12 months each, respectively, for contempt of the House.

Zambry and the exco members are suing Sivakumar for making an illegal ruling and contend that they should be allowed to attend the state assembly sittings.

High Court judge Datuk Wan Afrah Wan Ibrahim made the ruling after hearing the arguments by lawyers for Sivakumar and Gani.

Sivakumar’s lead lawyer, Tommy Thomas, had argued that the suit is between the legislator and members of the House and has nothing to do with the executive participation in the case.

However, Gani argued that as he is the "guardian of public interest", he has an interest in the case.

In the afternoon, Thomas urged the court to strike out the application by Zambry and the exco members against Sivakumar "as the proceedings of the legislative assembly are beyond judicial scrutiny".

He said Article 72 of the Federal Constitution, read together with paragraph 3 of the Legislative Assembly (Privileges) Enactment 1959, makes it clear that as members of the legislative assembly, the proceedings are protected by immunity from civil or criminal proceedings "for anything said or done".

Thomas said the order to suspend Zamry and the exco members was adopted by the state assembly sitting under a tree on March 3, "which is legal in law".

Wan Afrah fixed April 9 for the continuation of the hearing.

Today's court proceedings were held behind closed doors and the media and public were barred from the hearing.

Nga Hock Cheh, one of the laweyers representing Sivakumar, briefed the media on the hearing after the postponement of the case.

In addition to Thomas and Nga, the lawyers appearing for Sivakumar were Chan Kok Keong, Leong Cheok Keng and Mohd Asri Osman.

Zambry and the exco members were represented by Datuk Mohd Hafarizam Haron, Firoz Hussein Ahmad Jamaluddin , Abu Bakar As-Sidek Mohd Sidek, Badrul Hishah Abdul Wahap, Faizul Hilmy Ahmad Zamri and Syed Faisal Syed Abdullah - theSun.

> Nizar vs Zambry: Leave decision tomorrow

The Kuala Lumpur High Court will decide tomorrow on whether to grant leave to proceed with Mohd Nizar Jamaluddin's judicial review to determine the rightful Perak menteri besar.

Justice Abdul Aziz Abdul Rahim said he would deliver the decision at 3pm tomorrow after hearing a preliminary objection from the Attorney-General Chambers and reply from Nizar's lead counsel Sulaiman Abdullah.

In the court today, proceedings started at 2.40pm, and ended at 5.55pm following the lengthy submission by both parties. Today's hearing also saw the appearance of senior counsel Cecil Abraham and his son Sunil Abraham to hold a watching brief for Zambry.

Perak assistant legal advisor Zulqarnain Hassan held a watching brief for the Perak government while lawyer M Reza Hassan held a watching brief for Barisan Nasional.

Throughout proceedings, Abdul Aziz - who is on the second day of work in Kuala Lumpur after his transfer from Sarawak - made his notes on his laptop computer.

The proceedings started with Senior Federal Counsel Kamaluddin Md Said objecting to the leave application, saying the issue was non-justiciable as the decision had been made by the Perak's Sultan Azlan Shah.

"The applicant's submission (Nizar's) for leave is frivolous and vexatious and abuse of the court process as it is clear fact the decision by the sultan under Article 16 (6) of the Perak constitution was non justiciable.

"Furthermore, the actions of the Yang di Pertuan Agong, rulers and governers are protected under Article 160 of the Federal Constitution. Hence, this brings the fact that the sultan's action as a public authority to appoint BN's Zambry Abd Kadir cannot be challenged," said Kamaluddin.

Sultan not a party in the action

He also submitted that in this case, only Zambry had been made a respondent in the case and not the Sultan of Perak, which can be considered as a public authority.

Kamaluddin said in this case, Nizar should have showed which public authority had aggrieved him and certainly it was not Zambry.

Setting the background of the case, the senior federal counsel said the case started right after Nizar's application to the Sultan of Perak to dissolve the state legislative assembly, which was not granted.

Following this, he said the sultan decided to appoint Zambry as the new menteri besar.

If Zambry's position was being disputed, Kamaluddin said let Zambry be allowed to bring his appointment letter to prove this.

Kamaluddin said as the main issue was the action taken by the Sultan of Perak is non-justiciable, leave should be granted.

Nizar filed the application for a judicial review on Feb 13, and sought for, among others, a declaration that he is the rightful Perak menteri besar.

He is also seeking an interpretation of Article 16(6) of the Perak constitution on when can the menteri besar's post be vacated.

In his application, Nizar said Zambry should cite the authority that allowed him to legitimately become the menteri besar.

Nizar is also seeking a declaration that Zambry has no right to be menteri besar at any material time, plus an injunction to prevent him or his agents from continuing his task and role as the menteri besar.

The case came up today after the Federal Court decided the two cases on the Perak situation must be heard at the High Court before coming to the Federal Court.

There can never be two MBs in office

Meanwhile, Sulaiman submitting in favour of the leave application said the court must be satisfied that the applicant has fulfilled the threshold issue.

In this case, the Perak constitution stated that the menteri besar's post can be vacated when:

(a) The menteri besar had advised the ruler on dissolution of the state legislative assembly;

(b) There was no dissolution of the assembly;

(c) There was no motion of confidence against the menteri besar in the state legislative assembly; and

(d) The menteri besar did not resign.

He said Nizar did not fulfil any of the conditions as he did not resign and neither did the other factors falls into place.

Sulaiman said the Perak menteri besar cannot be dismissed by the sultan because the position was not held at the pleasure of the Sultan of Perak.

"As such, Nizar is still in office and the respondent (Zambry) cannot also claim to be the rightful menteri besar. There cannot be two persons occupying one office of the menteri besar," he subnmitted.

Sulaiman also pointed out the action against Zambry was based on `quo warranto' where it is the respondent's burden to satisfy the court of his eligibility to hold the public office (i.e. the menteri besar) in question.

"If the court is satisfied, the matter ends there. On the other hand, if the respondent fails to discharge the burden, the court will issue orders to the effect of removing or injuncting Zambry from continuing to act under the name of menteri besar," he said.

Sulaiman also pointed out that Nizar had the locus standi (legal standing) to make the application as he was adversely affected by the unlawful actions of the respondent, and he has a legal right as well as sufficient interest to bring the judicial review.

The senior lawyer said this was not the appointment of ministers or state excos where the prime minister, or the chief minister or menteri besar can advise the king or sultan.

"This is the appointment of the menteri besar or at the federal level the prime minister," he said.

On the issue of non-justiciable, Sulaiman pointed out that the person being challenged was not the appointing authority (Perak sultan), but the appointee to the office of menteri besar.

"The main issue in this application revolves around the Perak constitution in the office of menteri besar. The issue of non-justiciability does not arise at all," he said - Malaysiakini.

Justice must be seen to be done - Counterpoint.