Sunday, April 19, 2009

Another high noon in Perak on May 7 2009?

NOW that a sitting of the Perak legislative assembly sitting has been called
for 7 May, another showdown is expected because it is being convened without
speaker V Sivakumar's consent.

In such a case, constitutional law expert Prof Dr Shad Saleem Faruqi
believes Perak's constitutional crisis is far from over despite how recent
court decisions have appeared to favour Barisan Nasional (BN).

The court has ruled that the three independents from Behrang, Changkat
Jering and Jelapang remain as assemblypersons, while the BN's Menteri Besar
Datuk Dr Zambry Abdul Kadir and six executive councillors had their
suspensions from the assembly lifted.

"There is still a deadlock because the speaker would not want this sitting
to be held," Shad Saleem tells The Nut Graph.

Notices to Perak assemblypersons that the legislative assembly would convene
on 7 May were issued on 17 April by the state secretary's office.

The sitting has to be held before 13 May, the end of the six-month deadline
since the last assembly was convened in November 2008. Failure to do so
would mean automatic dissolution of the assembly and fresh elections, which
the BN has been trying to avoid since their takeover of the state on 5 Feb.

The likely agenda in the 7 May sitting, since it is being convened by the BN
side, is to pass a motion of confidence on Zambry as menteri besar and to
elect a new speaker to replace Sivakumar.

Shad Saleem says there was once a case in India where a state assembly was
adjourned sine die (indefinitely) as soon as the house sat because the
speaker did not want the sitting held.

"If Sivakumar does the same, then the constitutional crisis continues," Shad
Saleem explains.

The law professor at Universiti Teknologi Mara also adds that "it was an
open question" on whether the assembly secretary could issue the notice
convening the assembly on the orders of Zambry. "Usually, the assembly
secretary acts on the instructions of the speaker."

Shad Saleem says the only solutions apparent to him was to either declare
emergency rule in Perak, or the sultan on the advice of the menteri besar
could prorogue the assembly and then use his royal prerogative to call a new

Deciding course of action

Both the Pakatan Rakyat (PR) and the BN are mum at the moment on what each
will do when the assembly convenes.

Perak Gerakan chief Datuk Chang Ko Youn, who is also a special adviser
appointed to assist Zambry in Chinese Community Affairs, says they are being
advised by the BN's lawyers on the matter.

Meanwhile, Perak DAP chief Datuk Ngeh Koo Ham states PR assemblypersons will
"only act on the instruction of the speaker", but declines to outline the
exact course of action.

Meanwhile, Ngeh, a lawyer, also tells The Nut Graph that the Federal Court's
decision to lift the suspension of Zambry and six excos had no effect as "it
was only an opinion expressed by the court."

"There was no order to quash the speaker's order [to suspend the seven], so
the order is still there. The court's declaration was also wrongly aimed at
the speaker, when the decision on the suspensions was made by the Rights and
Privileges Committee," says Ngeh.

However, Sivakumar chairs the committee.

Reacting to Ngeh's statement, Chang, also a lawyer, says any declaration by
the court is enforceable. "If it is just an expression of opinion, then it's
a bloody waste of time. This is Pakatan - when the judgment is not in their
favour, they say that justice is not being served."

Shad Saleem also supports Chang's position, saying that in any country where
there is rule of law, a court declaration carries weight.

"While it may be technically true that it is a declaration, to say that it
is merely that and therefore non-binding, I think that is a desperate
argument," the law professor says.

On the argument that the court decision breaks the doctrine of separation of
powers between the legislative, executive and judiciary, Chang explains the
more correct term is "checks and balances" instead of "independence" of the
legislative assembly from court action.

"There is no absolute independence, the idea of checks and balances is that
whichever estate exceeds its power can be subject to court action. In this
case, the speaker acted as judge, jury and executioner," Chang said.

The Federal Court ruling against the suspensions on 16 April is a landmark
decision as there are constitutional provisions preventing decisions by the
speaker of a state legislative assembly or parliament from being challenged
in court.

Article 72, Clause (1) of the Federal Constitution clearly states that "the
validity of any proceedings in the Legislative Assembly of any State shall
not be questioned in any court."

But with the ruling, the court has set a precedent as now the speaker's
decisions and actions can be subject to judicial review.

[Source: Nut Graph]

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