Tuesday, May 19, 2009

Sivakumar may yet have a case in his favour

Tommy Thomas, one of the most prominent lawyers in the local legal fraternity and now representing  Sivakumar in the Speaker vs Speaker case has this to say.

 V Sivakumar remains the lawful speaker of the Perak state assembly as his “removal” during the shambolic May 7 legislative sitting was made before the Raja Muda Nazrin Shah proclaimed the assembly “opened,” according to a legal opinion prepared for the Pakatan Rakyat (PR) man.

The legal opinion points out that the legislative assembly summoned under Article 36(1) of the Perak state constitution could not transact any business or pass any resolution prior to the royal address which was only delivered on May 7 between 3.16 pm and 3.47 pm.

“Thus any purported resolutions or decisions taken before the royal address are null and void and of no legal effect,” states the opinion prepared by constitutional expert Tommy Thomas and obtained by The Malaysian Insider.

Thomas, considered Malaysia’s leading constitutional lawyer, had been also engaged by Sivakumar to represent him in his legal disputes with Datuk Dr Zambry Abd Kadir over the validity of the suspension from the assembly of the Barisan Nasional (BN) mentri besar.

In the legal opinion prepared for Sivakumar, Thomas compared the significance in law of the commencement of the legislative sitting to that any meeting of organisations or companies and even clubs.

“Until the chairman of the meeting calls it to order the meeting cannot transact any business.

“The law of meetings reflects common sense. It is therefore not surprising that parliamentary practice and usage is also similar.”

On May 7, Sivakumar, as speaker, had refused to call the sitting to order until Zambry, six other assemblymen from BN whom he considered suspended and three BN-friendly independents whom he considered to have quit their seats, left the chambers.

Pandemonium erupted after that which resulted in BN assemblymen convening the assembly with the help of deputy speaker Hee Yit Foong who declared Sivakumar was no longer the speaker.

Datuk R Ganesan was subsequently declared speaker, while Sivakumar was forcibly dragged out of chambers by unidentified men.

Ganesan subsequently called the sitting to order and Raja Nazrin delivered his royal address before the meeting was adjourned sine die.

Thomas’s legal opinion could become significant and form the basis of any challenge by Sivakumar over the legitimacy of Ganesan’s appointment.

If last week’s ruling by the high court here declaring PR’s Datuk Seri Nizar Jamaluddin the rightful Perak MB stands, then it would follow that the May 7 assembly would be considered null and void as well.

But if Zambry, who has obtained a stay, wins his appeal, he would need Ganesan as the speaker to ensure he is not booted out of chambers and can muster the necessary backing to win a confidence vote.

Thomas, in his legal opinion, argues that when Sivakumar was “removed” on the morning of May 7, the assembly was not legally sitting.

The constitutional lawyer also points out that in his opinion there are no standing orders which are applicable to the May 7 sitting.

He cites two standing orders – 1 and 13 - dealing with proceedings and he argues that they are only relevant to either the first sitting of the first session of the assembly and for ordinary sitting days.

The May 7 event, he points out, was supposed to be the first sitting of the second session.

As a result, Thomas contends reliance can be placed on Standing Order 90 which allows Commonwealth parliamentary practice and usage to be used as guidance where standing orders are silent.

To support his argument, he cites English constitutional theorist Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, which states:

“In every session but the first of a Parliament, as there is no election of a speaker, nor any general swearing of members, the session is opened at once by the Queen’s speech, without any preliminary proceedings in either House. Until the causes of summons are declared by the Queen, either in person, or by commission, neither House can proceed with any public business…

“…This practice is observed because no business can be transacted until parliament has been opened by the Crown.”

Thomas also goes on to cite Halsbury’s Laws of England, a definitive treatise on English law, which states:

“Neither house of parliament can proceed with any public business until the session has been opened by the monarch in person or by Lords Commissioner acting on her behalf.”

P Ramakrishnan, president of the social movement, Aliran, has this to say about Ganesan, the illegal speaker of the Perak State Assembly.

The claim by self-proclaimed Perak state assembly speaker R Ganesan that he had no choice but to 

summon the police into the House at the height of the ruckus during the May 7 sitting, is dubious and deceiving. There is no merit in his claim.

r ganesan 130509In the first instance, his entry into and his very presence in the assembly is questionable. How on earth did Ganesan get into the assembly? The assembly building was out of bounds to all except the elected members of the assembly.

There was a police cordon to prevent all the others from entering the assembly. A 500-metre no-access zone was declared and anyone found anywhere near this perimeter were either chased away or were arrested when they resisted the police orders.

Even Perak members of parliament were denied access to the assembly. Veteran MP Lim Kit Siang was refused entry into the building in spite of the fact that he had come with the invitation letter from the speaker to attend the assembly sitting.

Likewise, M Kulasegaran and Dr D Jeyakumar, both elected MPs from Perak were turned away. That’s how strict the police were. They stringently enforced this ruling of refusing permission to all and sundry.

Who authorised his presence?

So the natural question is: How did Ganesan gain entry into the building. Who authorised his presence in the Perak state assembly? How did he by-pass the police security arrangement? How did he hoodwink the police? How come the police did not detect him? Was he smuggled in? Was he planted in the building the previous day?

Is it possible that the police were working hand in glove with illegitimate MB Zambry Abd Kadir and BN assemblymen and facilitated Ganesan’s presence in the building?

nizar suk fru 120509 police negotiateGanesan had no business to be inside the assembly. One can safely conclude that his appearance and continued presence in the assembly prompted and provoked a situation which went beyond control.

Secondly, contrary to his claim that he had no choice but to call in the police, if indeed he was the speaker of the assembly as he claims, he could have adjourned the assembly sitting, following which he and his cohorts could have left the assembly.

This simple action would have prevented the assembly from becoming chaotic and unruly. Since he did not do this, it can be rightly construed that he had contributed to the topsy-turvy situation.

The illegitimate MB and the BN assemblypersons by smuggling in Ganesan had incited the unruly behaviour.

Illegally elected?

Thirdly, the way Ganeson was ‘elected’ speaker was also questionable. According to speaker V Sivakumar, the assembly had not been convened. In other words, the assembly was not in session.

ganesan perak state assembly speaker 070509 01Sivakumar had stated that he would not convene the asembly as long as those ordered out of the House were still inside. That was his stated position. That being the case, how was Ganesan elected when the assembly was not in session?

Can a group of BN assemblymen get together privately in one corner of the assembly building when the speaker was still occupying his chair and elect someone else? We have a situation when an outsider appears mysteriously in the building and he was elected speaker when the assembly had not officially convened.

This was not the only absurd situation we had on 7 May. On that day, we also seemed to have had two speakers and two menteris besar at the same time in the same building!

The Standing Orders of the assembly were thrown to the winds and the proper procedures that had to be followed were totally ignored. And that was the reason why things turned ugly, unruly and chaotic on May 7.

A BN-police conspiracy?

Ganesan further contributed to the chaos by ordering the police to forcibly evict Sivakumar from the assembly. What were the police doing inside the assembly? Ganesan did not send someone to invite the police to do his bidding. They were already there waiting for his orders. Isn’t that very strange!

sivakumar being dragged abused manhandled by security unknown individual out perak state assembly chaos 070509 02By calling on the police to drag out the duly-elected speaker from the assembly, Ganesan had defiled and desecrated the sanctity of the assembly. It is an unforgivable sin that he had committed that must be roundly condemned. We should never introduce thuggish behaviour into the legislative assembly where the rule of law should have been paramount and should have prevailed at all times.

What transpired as a result of Ganesan’s conduct raises many serious questions. Why did the police obey him? How did they know he was the new speaker? Was there an announcement that Sivakumar was ousted?

Or was this part of a pre-prepared and pre-rehearsed script? The way things fell into place would indicate that there was a scheme to capture the Perak state government, if necessary, by force. The plot was hatched studiously and implemented without a care for the rule of law.

This is a dangerous precedent and it should not be tolerated. It must be condemned in the strongest terms. There must be retribution for this outrageous behaviour.

Perakians will remember this shameful episode in their proud history and they will punish all those who frustrated the democratic will of the people.  

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