Standing on ceremony

2009/05/06 | NST online -

THE Perak state assembly will sit tomorrow. Hugely anticipated, the sitting is expected to end the acrimonious political and constitutional impasse in the state. Or conversely, it could make the situation worse. Barisan Nasional and Pakatan Rakyat realise what is at stake and are not likely to give in without a fight. As it is, Menteri Besar Datuk Seri Dr Zambry Abdul Kadir will be tabling a motion to remove Pakatan Rakyat's V. Sivakumar as speaker. The BN has gone even further by nominating former Sungkai assemblyman Datuk R. Ganesan of the MIC as the new speaker. What is ironic about this is that Sivakumar must first give his go-ahead before the motion to remove him can be admitted. Thus, the motion will likely be rejected and the sitting adjourned sine die.

Nobody can predict what will transpire thereafter. Indeed, what has happened, and is continuing to play out in Perak, has been unprecedented. The situation has been amorphous since the crossovers by three state assemblymen resulted in the collapse of the state government. Never before have the state constitution and standing orders been so rigorously studied, interpreted and debated by so many people, including constitutional experts and politicians with differing opinions. There has so far been a maze of legal suits, public gatherings and statements by leaders and supporters. But there are no straightforward solutions. Where the speaker is concerned, the laws pertaining to his rights and scope of powers are untested and there are ambiguities that have given rise to diverse interpretations.

All this will doubtlessly culminate in a fight for seats -- perhaps in the literal sense -- when the state assembly convenes. Former menteri besar Datuk Seri Mohammad Nizar Jamaluddin has indicated that there will be tussling in the state legislative hall by saying that he is ready to rebut kerusi or make a grab for the seats on the right of the speaker, which by tradition goes to those in the government. Such attempts to undermine the integrity of this institution of state would be unacceptable. It is imperative that the sitting is allowed to be carried out in a dignified and honourable manner. All necessary procedures have been followed in convening the assembly and it is vital that everyone plays by the rules. What is also as crucial is for cool heads to prevail outside the State Secretariat building. Mass gatherings without police permits are illegal and all those who plan, organise or take part in them must be made to feel the full force of the law.

UNRAVELLING THE TRUTH BEHIND THE POLITICAL MESS IN PERAK

Tuesday, 17 March 2009 | IPOH ECHO

In an attempt to get an insight into the political quagmire that Perak has unwittingly found Ipoh Echo will endeavour to find answers from both sides of the political divide. The series starts with an interview with Augustine Anthony...

Ipoh Echo: Perakians in general are rather in the dark as to events clouding the Perak political landscape. How did events unfold?

Augustine: It’s common knowledge, judging from the sequence of events inthe past month, what took place. It all started with the appointment of Dato’ Dr Zambry, replacing Dato’ Seri Nizar Jamaluddin as the Mentri Besar on February 6. Beyond the legal aspects, it’s the feelings of the people that matter.

Perak has been under Barisan Nasional since 1957. There was never an occasion when the state government was ruled by another party other than BN. After the March 8 General Election, the rakyat had voted in a new government under the tripartite coalition named Pakatan Rakyat.

Ipoh Echo. What events have left a lasting impression on Perakians?

Augustine: The openness of the PR-led Government is something new to Perakians. The PR politicians are very approachable and are willing listeners. Long standing issues relating to Orang Asli’s land rights, for example, have been resolved. Land titles, which were once a taboo subject, were given out. A two-way communication was established with those in authority and the common folk. Suddenly, this channel of communication was snuffed out when a “power grab” took place.

The rakyat don’t mind a change in the government but it’s the manner the change is instituted that left many unhappy. They voted for the parties that could bring about changes and now they are left in the lurch.

Ipoh Echo: How had the actions of the three BN-friendly assemblymen impacted the rakyat?

Augustine: The people felt that the three individuals had betrayed their trust.

The response from the rakyat was something unexpected. There had never been such an outpouring of anger in the streets. It translated into a phenomenal scene with people protesting against the swearing-in of the new MB in Kuala Kangsar. The spontaneity of this unplanned protest goes to show how unhappy the people are.

Ipoh Echo: What are the other contributing factors?

Augustine: Power grab is not something easy because we are a country with a written constitution, which has evolved over the years. Besides the Federal Constitution, individual states have their own constitutions. The civil society of the country believes that the Rule of Law must prevail.

There is separation of powers between the Judiciary, the Legislative and the Executive. The three branches must work harmoniously but independently without any form of “unholy interference”. We have been jolted in the past. The Executive assault on the Judiciary in 1988 is a case in point and we have never recovered since. What happened in Perak is another round of Executive meddling in the affairs of a legislative body.

Ipoh Echo: Can this outpouring of anger be averted?

Augustine: Yes, it can. When one party seeks legitimacy to rule why is it so difficult to ask the people for their consent? Seek the mandate from the rakyat. Let the public choose the government of their choice through the ballot boxes.

Ipoh Echo: The rakyat have inferred that there is interference by the Judiciary insofar as the Perak situation is concerned. Your comments.

Augustine: The good governance of the state is enhanced by the independence of the three branches – Judiciary, Legislative and Executive. The people perceive that the Judiciary is imposing itself on the Legislative. The slew of litigations taken against and for the newly-formed BN government is the result of this shortcoming.

Ipoh Echo: There is a general feeling among Perakians that truth will be suppressed. Your comments.

Augustine: With the developments taking place presently, I don’t think that’s easy. The monarchy has been unwittingly dragged into the fray. It’s not about defending the Institution of the Rulers per se. It’s about defending the interest of certain individuals. We no longer live in the 50s and 60s where the flow of information was so restricted. With Internet people today can access news as it unfolds. Blogs and online newspapers provide better and wider coverage than the mainstream media do. The people can differentiate between truth and fiction. Truth, therefore, will never be suppressed.

Ipoh Echo: What is the effect of this mess on the rakyat?

Augustine: One positive development that have taken place is that the rakyat today are better informed than before. They now know what is enshrined in the Perak State Constitution and what the Perak State Legislative Standing Order provides. They have taken cognisance of the fact that federal apparatchiks, like the police and the anti-corruption commission, are being brought to bear on the Opposition. And foremost, they all know who the underdogs are.

Ipoh Echo: Do you think that this impasse will end on a happy note? What are the lessons learnt?

Augustine: I cannot predict that it will end on a happy note. However, I can say this for certain that those involved in the “power grab” thought that it was a walk in the park. Now they know that the Constitution has enough provisions to protect the man in the street.

Any setback is good education for the people to be vigilant, prudent, compassionate and circumspect. It will teach future generations how to respect the Constitution, the Rule of Law and the people. It will also teach those in power that they cannot disregard the feelings of the masses. They must acknowledge the fact that their number is small while the masses are huge.

Ipoh Echo: How can this crisis be resolved?

Augustine: Dissolve the state assembly and call for a fresh election. Let Perakians decide what’s best for their state. Otherwise it’s denying their legitimate expectations.

Sivakumar pohon semakan kehakiman

Mar 10, 09 7:18pm | Malaysiakini

Speaker Dewan Undangan Negeri (DUN) Perak V Sivakumar hari ini memfailkan saman untuk semakan kehakiman terhadap tiga Ahli Dewan Undangan Negeri (Adun) di Perak dan Suruhanjaya Pilihanraya (SPR).

Sivakumar memohon writ bersifat 'quo warranto' dikeluarkan kepada tiga Adun berkenaan - Jamaluddin Mohd Radzi (Behrang), Mohd Osman Mohd Jailu (Changkat Jering) dan Hee Yit Foong (Jelapang) - memerintahkan kesemua mereka memberikan tunjuk sebab dan maklumat bagaimana dan di bawah dasar atau kuasa atau autoriti mana kesemua mereka kononnya masih Adun kawasan masing-masing dan bertindak menjalankan tanggungjawab, fungsi dan tugas Adun.

Beliau juga memohon perintah deklarasi bahawa kerusi DUN Behrang, Changkat Jering dan Jelapang adalah kosong akibat peletakan jawatan Jamaluddin dan Mohd Osman pada 1 Februari lalu manakala Hee pada 3 Februari, lapor Bernama.

Beliau turut memohon satu perintah injunksi untuk menghalang ketiga-tiga mereka bertindak, menjalankan dan melaksanakan tanggungjawab, fungsi dan tugas-tugas sebagai anggota dewan undangan negeri masing-masing.

Sivakumar yang mewakili dirinya sendiri memfailkan saman itu di Pejabat Pendaftar Mahkamah Tinggi (Bahagian Rayuan dan Kuasa-Kuasa Khas) jam 3.40 petang.

Dalam saman tersebut Sivakumar menamakan Jamaluddin sebagai responden pertama, Mohd Osman sebagai responden kedua dan Hee responden ketiga manakala SPR dinamakan sebagai responden keempat.

Dalam saman itu juga Sivakumar memohon mahkamah mengemukakan perintah certiorari terhadap SPR untuk membatalkan keputusan dan tindakannya yang enggan dan/gagal atau abai melaksanakan pilihan raya kecil bagi kerusi DUN Behrang, Changkat Jering dan Jelapang.

Pilihanraya kecil

Beliau juga memohon mandamus (mengarahkan) terhadap SPR untuk melaksanakan pilihanraya kecil di tiga DUN tersebut.

Sivakumar, yang juga Adun Tronoh turut menuntut gantirugi punitif, keterlaluan dan teladan dan relif lain.

Sementara itu tiga orang pengundi di tiga kawasan DUN yang sama serta tiga exco kerajaan negeri Perak turut memfailkan permohonan yang sama hari ini.

Ahmad Sabri Wahab, Abdul Latip Afiffin dan Foo Hong Wai (kesemuanya pengundi) dan tiga Exco A. Sivanesan (Sungkai), Tai Sing Ng (Kuala Sepetang) dan Cheng Fook Chye (Keranji) turut menamakan tiga Adun yang sama dan SPR sebagai responden.

Permohonan difailkan melalui firma guaman Tetuan Chooi & Co di pejabat pendaftar yang sama. Kesemua permohonan adalah berkaitan dengan perkara yang sama sepertimana yang dipohon oleh Sivakumar.

Dalam satu sidang akhbar, Sivakumar berkata, pihaknya telah menerima dua surat peletakan jawatan pada 1 Februari daripada Mohd Osman dan Jamaluddin manakala pada 3 Februari daripada Hee.

"Ketiga-tiga surat peletakan jawatan itu telah saya kemukakan kepada SPR dengan menulis surat dengan mengatakan bahawa ketiga-tiga Adun ini telah meletak jawatan dan saya memohon kepada SPR untuk mengadakan pilihanraya dalam tempoh 60 hari tetapi malangnya saya telah menerima surat dari SPR menyatakan keputusan itu diragui yang mana saya mempunyai kuasa sebagai Speaker dan permohonan saya ditolak dan pilihanraya tidak dipanggil untuk ketiga-tiga DUN ini," katanya.

Sivakumar berkata situasi itu menunju

Publish Post

kkan berlakunya pertindihan kuasa dan beliau membawa kes itu ke mahkamah untuk mendapatkan keadilan.

Perak Speaker sues EC

Sivakumar filling his suit at the

Kuala Lumpur High Court today.

- Picture by Choo Choy May

KUALA LUMPUR, Mar 10 — Malaysianinsider

Perak Assembly Speaker V Sivakumar is suing the Election Commission (EC) for refusing its duty to hold by-elections in three state seats despite being informed they are vacant.

The embattled speaker personally filed the suit at the High Court here this afternoon.

Sivakumar wants the court to order the EC to cancel its earlier decision and to immediately hold by-elections in Behrang, Changkat Jering and Jelapang.

He is also suing the three elected representatives for the seats, Jamaluddin Mohd Radzi (PKR-Behrang), Mohd Osman Mohd Jailu (PKR-Changkat Jering) and Hee Yit Foong (DAP-Jelapang), whom he maintains are no longer the lawful assemblypersons.

He wants the high court to bar the three state lawmakers from acting out the official duties, function and tasks required of a member of the state assembly; to order them to prove they are still lawful assemblypersons; and a declaration their state seats are vacant.

Speaking to reporters in the courthouse lobby after filing his suit, Sivakumar said he had received and accepted the three state lawmakers’ resignation letters early last month.

He added he had written to inform the EC of the vacancies, which would normally pave the way for fresh elections, which must be held within 60 days of the seat being unoccupied.

“But I got a letter from the EC saying my decision is being doubted,” said the speaker.

“This clearly shows there is an overlap of power,” he added, explaining it breached the doctrine of separation of powers among the three arms of government.

Sivakumar said he was “disappointed” with the EC’s decision.

Sivakumar, who is facing several lawsuits of his own at the Ipoh High Court, told The Malaysian Insider the reason he filed the suit at the high court here and withdrew the earlier one in Ipoh is because “we want to find justice here”.

Asked if he saw the high court here as more independent, he smiled and said: “I hope it can be.”

Sivakumar arrived at the Jalan Duta court complex about 3.20pm and was immediately escorted by Perak DAP chief Datuk Ngeh Koo Ham and party state secretary Nga Kor Ming to the mezzanine level to file his suit for a judicial review at the Appellate and Special Powers division of the High Court.

Nizar lwn Zambry: 4 persoalan perlembagaan

Mar 10, 09 6:09pm | Malaysiakini

Mahkamah Tinggi (Bahagian Rayuan dan Kuasa Khas) Kuala Lumpur hari ini mengumumkan empat persoalan berkaitan perlembagaan yang perlu ditentukan oleh Mahkamah Persekutuan dalam pertikaian undang-undang antara Datuk Seri Mohammad Nizar Jamaluddin dan Datuk Dr Zambry Abdul Kadir.

Persoalan itu yang dibacakan oleh Hakim Lau Bee Lan, adalah seperti berikut:

Sama ada perkara Duli Yang Maha Mulia Sultan Perak tidak memperkenankan permintaan bagi pembubaran Dewan Undangan Negeri Perak di bawah perkara 16(6) dibaca bersama dengan perkara 18(2)(b) Undang-undang Tubuh Kerajaan Negeri Perak boleh diadili?

Sekiranya jawapan kepada persoalan pertama adalah ya, persoalan seterusnya ialah sama ada perkara Duli Yang Maha Mulia Sultan Perak tidak memberikan perkenan itu sah di sisi undang-undang?

Sama ada pelantikan menteri besar Perak yang baru di bawah perkara 16(2) (a) dibaca bersama dengan perkara 18(2)(a) Undang-undang Tubuh Kerajaan Negeri Perak oleh Duli Yang Maha Mulia Sultan Perak boleh diadili?

Sekiranya jawapan kepada persoalan di atas adalah ya, persoalan seterusnya ialah sama ada menteri besar yang baru itu dilantik secara sah di sisi undang-undang?

Persoalan berkenaan dirumuskan oleh Peguam Kanan Persekutuan Datuk Kamaluddin Md Said bagi Pejabat Peguam Negara sepertimana diminta Hakim Jumaat lalu, lapor Bernama.

Selepas persoalan berkenaan diumumkan, peguam kanan Sulaiman Abdullah yang mewakili Mohammad Nizar mengemukakan bantahan atas alasan persoalan itu tidak relevan dengan permohonan mereka bagi semakan kehakiman di Mahkamah Tinggi.

"Persoalan itu tidak timbul daripada permohonan bagi pengisytiharan dalam semakan kehakiman, dan sehubungan itu, apa juga jawapan yang mungkin diberikan Mahkamah Persekutuan, ia bukan penentu muktamad terhadap isu yang telah dibangkitkan," katanya.

Permohonannya bagi penangguhan perintah rujukan kepada Mahkamah Persekutuan, sementara menunggu rayuannya kepada Mahkamah Rayuan yang telah ditolak atas alasan bahawa permohonan sama (bagi penangguhan) telah dibangkitkan dan ditolak oleh Lau pada 6 Mac.

Pada 13 Feb, Mohammad Nizar, 52, yang juga Timbalan Pesuruhjaya PAS Perak, memfailkan permohonan semakan kehakiman bagi diisytiharkan beliau adalah Menteri Besar Perak yang sah dan injunksi untuk menghalang Dr Zambry daripada menjalankan tugas sebagai Menteri Besar.

Question for Federal Court in MB vs MB suit

KUALA LUMPUR, MAR 10 — By Debra Chong and Edward Cheah | Malaysianinsider

The High Court here today publicly pronounced the questions for the Federal Court to answer to resolve the controversial suit over who is the lawful menteri besar of Perak.

The High Court’s questions can be split into two parts: the first concerns the Perak ruler’s decision in withholding consent to dissolve the Perak State Legislative Assembly; and the second is to do with the appointment of the new menteri besar.

The four constitutional questions, created by senior federal counsel in the Attorney General’s Chambers, Datuk Mohamad Kamaluddin Md Said, were read aloud practically unchanged in open court by Justice Lau Bee Lan of the Appellate and Special Powers division.

She wants the apex court to decide whether the High Court has the jurisdiction to decide on the matter of the Perak Sultan’s decision not to dissolve the State Legislative Assembly; and if it does, whether the Sultan of Perak was right or not in withholding his consent to dissolve the Assembly.

Justice Lau also wants the Federal Court to rule if the High Court has the power to decide on Sultan Azlan Shah’s appointment of Barisan Nasional’s Datuk Zambry Abdul Kadir as the new MB replacing Pakatan Rakyat’s Datuk Seri Mohammad Nizar Jamaluddin.

If the High Court does, then is Zambry’s appointment valid?

A copy of the questions in English was made available to The Malaysian Insider. Here is what it says:

“Whether the withholding of consent to a request for the dissolution of the State Legislative Assembly of Perak under Article XVI (6) read together with Article XVII (2) (b) of the Constitution of Perak by His Royal Highness the Sultan of Perak is justiciable?

“If the answer to the first question is in the affirmative, the following question is whether the withholding of consent by His Royal Highness the Sultan of Perak is lawful.

“Whether the appointment of the new Menteri Besar under Article XVI (2) (a) read together with Article XVII (2) (a) of the Constitution of Perak by His Royal Highness the Sultan of Perak is justiciable?

“If the answer to the above question is in the affirmative, the following question is whether the new menteri besar is validly appointed?”

Lead lawyer for Nizar, Sulaiman Abdullah, objected to the questions on the basis that they were not relevant to the constitutional matter.

“These questions are irrelevant to our application and with respect, the answers the Federal Court will give will not be finally determative of the issues that have arisen,” Sulaiman insisted it be put on record.

Sulaiman said last week, they would not submit any questions because they are appealing against the High Court judge’s decision to refer the matter to the Federal Court.

Nizar was absent in court today as he had hoped to receive an audience with the Sultan of Perak.

Interestingly, the Perak State Legal Advisor, Datuk Ahmad Kamal Md Shahid, who maintains he is still the legal counsel for Zambry and was missing from the KL High Court last week, appeared today.

But he rushed right out of the courtroom after the judge exited, evading reporters who are keen to find out his stand on several controversial issues, including the Ipoh High Court’s order compelling him to represent Assembly Speaker V Sivakumar in a lawsuit filed against him by the elected representatives from Behrang, Cangkat Jering and Jelapang.

All eyes on Sultan as Nizar seeks to end unhealthy deadlock

By Wong Choon Mei | suaraKeAdilan | March 9,2009

In a bid to end the unhealthy deadlock in Perak state, Pakatan Rakyat Menteri Besar Nizar Jamaluddin has sought an audience with the Sultan to brief him on three motions tabled and passed by the legislative assembly at a historic emergency sitting last week.

“Pakatan leaders had a meeting on Friday evening in which it was decided that I seek an appointment with Tuanku as early as possible. We have prepared the appointment letter which I will take to the palace on Tuesday morning,” said Nizar.

Chaos and political deadlock

Peninsular Malaysia’ second largest state has been plunged into chaos after an unpopular Feb 5 decision by the Perak Ruler to transfer power to an Umno-BN line-up backed by Deputy Prime Minister Najib Abdul Razak.

Nizar, who was then the incumbent Menteri Besar, had advised that the state assembly be dissolved and the mandate returned to the people of Perak to choose the leadership they wanted.

The Pakatan leader had argued that the majority claimed by Umno-BN was questionable and already being challenged in the courts.

Pakatan and Umno-BN have 28 seats each in the 59-seat assembly, but with the help of three defections, Najib laid claim to a slim majority. Sultan Azlan Shah had then chosen to go with him, rather than Nizar.

However, that fateful decision sparked an uproar from Perakians. In a survey carried out by the well-respected Merdeka Centre, 74 percent of the Perak people said they wanted fresh state-wide polls to break the political impasse.

They were also unhappy with the Umno-BN line-up because it had only one non-Malay assemblyman, and this did not represent the reality of state’s racial mix.

Yet, Umno-BN has insisted on clinging to power, perhaps knowing that its chances of victory would be slim given the hugely unpopular manner in which it had engineered the power grab.

Barrage of legal suits but deteriorating justice

A barrage of legal suits and counter-suits have since followed, leading to Tuesday’s emergency sitting called by Perak Speaker V Sivakumar. Again, Umno-BN boycotted the meet and instigated the police and state secretary to block Pakatan lawmakers from entering the legislative assembly hall.

Undeterred, Sivakumar convened the historic session under a leafy and decades-old raintree nearby to the secretariat building. With all 28 Pakatan lawmakers present, there was sufficient quorum to legitimise the assembly and the motions it endorsed, in spite of the unusual setting forced upon them by the Umno-BN in concert with the police and the state secretary.

The motions passed included a vote of confidence in Nizar as Menteri Besar, the dissolution of the state assembly and confirmation of the Speaker’s decision to suspend BN Menteri Besar Zambry Kadir and six executive councillors from attending meetings after they broke House rules.

“We had the quorum, we adjourned to a lawful place under the ‘yellow flame tree’ and we had a legal Speaker,” said Pantai Remis assemblyman Nga Kor Ming, adding that documentation for the tabled motions have also been completed and notice submitted to the Palace.

Said Bar Council president Ambiga Sreenevasan: “The situation is untenable and cries out for the one thing that will resolve it conclusively – fresh election. There is now a window of opportunity for this to happen. Let the people decide.”

Will the Sultan stand with his subjects or with Najib?

It now remains to be seen if Sultan Azlan will acknowledge the wishes of his subjects and grant Nizar his audience, or stand by Najib.

There has been a non-stop plethora of calls from not just Perakians, but Malaysians nationwide, and hundreds of civil society groups appealing to Sultan Azlan to grant a state-wide election.

“The present crisis in Perak could have been averted if His Royal Highness Sultan Azlan Shah had dissolved the legislative assembly on February 5. The present scenario in Perak is seen as a state without a legitimate government,” said Param Cumaraswamy, former UN Special Rapporteur on the Independence of Judges and Lawyers.

“The casualty in such an environment primarily is the rakyat. If the situation is not carefully addressed and arrested quickly the rule of law in Perak will be in jeopardy and anarchy will be the order of the day.”

Tengku Razaleigh Hamzah, the Kelantan prince and well-respected veteran Umno politician, is the latest to join the chorus of voices.

“It may not be good for Barisan Nasional but we have no choice. We can’t go on with this impasse. I think that constitutional rule in Perak has collapsed and the only way to rectify the situation is to go back to the people. That would be the appropriate thing for the Ruler to do.”

Said veteran politician and MP for Ipoh Timur Lim Kit Siang: “The ball is in the court of Najib Razak, the Prime Minister-in-waiting who personally orchestrated the unethical, illegal and unconstitutional power grab in Perak – whether he is prepared to put national interests above his personal and Umno-BN interests.

“The Perak political crisis which has undermined national and international confidence in the legitimacy of his impending premiership and will cripple the second economic stimulus package he is to present to Parliament on March 10 in the face of the global financial meltdown.”

Who Is The Ultimate Authority?

2009-03-06 | mysinchew.com

Today, many people are just like me. We are trying to find out the facts amidst the chaotic constitutional crisis in Perak.

We doubt whether the authority to decide the validity of the Perak Legislative State Assembly sitting under the Yellow Flame tree lies on the Speaker or the judge?

When both the Speaker and the judge intervene in the chaos and show their authorities, what should the people of Perak do?

Our limited knowledge of law told us that the Constitution is supreme and whenever there is a dispute, the judge is the “ultimate authority” and the “ultimate interpreter” of the Constitution.

"We (Supreme Court Justices) are not final because we are infallible; we know that we are infallible only because we are final."

However, Article 72(1) of the Federal Constitution that underlines the “Privileges of Legislative Assembly” reads: "The validity of any proceedings in the legislative assembly of any state shall not be questioned in any court."

The Ipoh High Court judge has eventually chosen to make his sentence before the black and white Constitution. Just as expected, the judge's decision has triggered a major debate as different lawyers and legal experts are having different views.

As the general public, we are basically “legal idiots”. Please tell us, who should we believe?

We are confused by the hopping frogs, causing us to have doubts over these people, who used to high statuses and prestiges in the society.

Is the law really fair? Why is it always so confusing?

The “Great Dissenter”, the United State Supreme Court Justice Oliver Wendell Holmes said: “The life of the law has never been logic, it has been experience”. Meanwhile, another well-known Supreme Court Justice of the United States, Robert H.Jackson said: “We (Supreme Court Justices) are not final because we are infallible; we know that we are infallible only because we are final.”

The above-mentioned famous quotes are certainly worth to be pondered over and over again.

By LIM MUN FAH/ Translated by SOONG PHUI JEE/ Sin Chew Daily | The opinions expressed by the writer do not necessarily reflect those of MySinchew

Court declares assembly illegal

IPOH, March 3 — By Shannon Teoh - Malaysianinsider

Ipoh Barat MP M. Kula Segaran, showing a letter directed to the Ipoh High Court stating that V Sivakumar had not authorised the state legal advisor to act on the Perak Assembly Speaker’s behalf. — pic by Choo Choy May

The High Court here has declared as illegal this morning’s emergency sitting of the Perak state assembly which was held on a street under a tree.

The court granted the order restraining Speaker V Sivakumar from convening meetings “purporting to be meetings of the Perak legislative assembly” after accepting arguments that the immunity from judicial review stated in the federal constitution was only for proceedings in the state assembly.

After listening in chambers to lawyers representing Perak Menteri Besar Datuk Zambry Abd Kadir and his executive council and the assistant state legal advisor Zulkarnain Hassan for two hours, Judicial Commissioner Ridwan Ibrahim granted the order at 5pm under Section 44 of the Specific Relief Act which grants the court the power to make orders to a public official.

The order is for an indefinite period of time.

When asked by reporters, Zambry’s lead counsel Firoz Hussein Ahmad Jamaluddin said that the issue of a time did not arise as the speaker had no power to call for a sitting of the assembly as only the Sultan was authorised to do so under Article 36(1) of the Perak Constitution.

“There was no royal consent, so the meeting under the tree, remains just a meeting under the tree,” added Datuk Hafarizam Harun, Umno’s legal advisor, who is also part of the executive council’s legal team.

Earlier today Perak Speaker V Sivakumar convened an emergency sitting of the state assembly which effectively voted to end Zambry’s de facto Barisan Nasional (BN) government.

The court’s declaration was the latest development on an eventful day in which Perak’s administration was thrown into chaos with both BN and Pakatan Rakyat (PR) questioning the legitimacy of each other’s actions.

The State Secretary had earlier directed the closure of the building which houses the state assembly venue.

This morning, the same court had ruled that five lawyers, including constitutional expert Tommy Thomas, had no locus standi to represent the Perak Speaker in court.

The judge said the Speaker must be represented by the state legal advisor because he is part of the state government.

Firoz and Hafarizam however, refused to comment on the letter sent to Ridwan earlier whereby Sivakumar stated that he had not authorised nor communicated with the state legal advisor on this case as it “was not given to us.”

Sivakumar was represented in this afternoon’s proceedings by Zulkarnain, who insisted that there was no conflict of interest, despite the fact that the state legal advisor is defending Zambry in the ongoing case in the Kuala Lumpur High Court, where the legality of his appointment as menteri besar is being questioned.

“We are looking after the interests of the government. Our duty as legal advisors is to advice the government,” he said.

However, he said that “I cannot recall” when pressed on who had raised the preliminary objection to the team of lawyers initially appointed by Sivakumar.

A statement by Thomas, who was the lead counsel for Sivakumar, had claimed that the complainant had raised the objection but it was supported by Zulkarnain.

A hearing date will be set by the court on March 5, which is also the day that the three independents who left Pakatan Rakyat and now support Barisan Nasional, will go to court to quash the speaker’s decision to consider their state assembly seats vacant.

Given today’s ruling, it is likely that Sivakumar will once again be represented by the state legal advisor.

Peguam tidak dibenar wakili Sivakumar

Kuek Ser Kuang Keng | Mar 3, 09 11:56am | malaysiakini

Mahkamah Tinggi Ipoh hari ini memutuskan bahawa peguam yang mewakili Speaker Dewan Undangan Negeri (DUN) V Sivakumar tidak mempunyai locus standi untuk mewakilinya dalam satu permohonan yang difailkan oleh Menteri Besar Datuk Seri Zambry Kadir dan enam Exco kerajaan negeri.

Pesuruhjaya Kehakiman Ridwan Ibrahim, memutuskan demikian ekoran permohonan yang dibuat oleh peguam yang mewakili Zambry.

Peguam Tommy Thomas (foto) yang mewakili Sivakumar berkata, alasannya ialah Speaker adalah sebahagian daripada kerajaan negeri, dan oleh itu, hanyapenasihat undang-undang kerajaan negeri yang boleh mewakili Sivakumar.

Tommy memberitahu pemberita demikian selepas Ridwan mendengar kes itu selama 30 minit di dalam kamarnya.

Zambry dan enam anggota exco kerajaan negeri itu semalam memfailkan permohonan supaya Mahkamah Tinggi Ipoh mengisytiharkan keputusan Sivakumar menggantung dan melarang mereka menghadiri persidangan DUN antara 12 bulan dan 18 bulan sebagai terbatal dan tidak sah.

Zambry dan enam Exco berkenaan turut memohon supaya mahkamah mengisytiharkan mereka berhak menghadiri dan mengambil bahagian dalam semua persidangan DUN dan menjalankan segala fungsi dan kewajipan.

Tommy berkata, pesuruhjaya kehakiman itu memutuskan bahawa peguam-peguam yang mewakili Sivakumar sekarang tidak mempunyai locus standi dan tidak boleh mewakili speaker tersebut.

Katanya, yang boleh mewakili Sivakumar hanya penasihat undang-undang kerajaan negeri.

Tommy berkata Ridwan juga menolak hujah pihaknya bahawa akan berlaku konflik sekiranya penasihat undang-undang kerajaan negeri mewakili Speaker.

Ridwan juga, katanya, menolak permohonan mereka untuk menjadi peguam pemerhati dengan hak untuk mengemukakan hujah bagi pihak Speaker.

"Pesuruhjaya kehakiman berkata kami boleh menjadi peguam pemerhati tetapi tidak boleh mengemukakan sebarang hujah," tambahnya.

Tunggu arahan baru

Dengan keputusan tersebut, Tommy berkata beliau akan menunggu arahan Sivakumar mengenai tindakan selanjutnya, termasuk kemungkinan mengemukakan rayuan terhadap keputusan Ridwan.

Selain Tommy, peguam lain yang turut mewakili Sivakumar termasuklah Can Kok Leong, Philip Koh Tong Ngee dan Augustine Antony.

Ekoran keputusan tersebut, Ridwan menangguhkan prosiding ke tarikh lain yang akan diputuskan kemudiannya.

Peguam yang mewakili Zambry pula termasuklah Mohd Hafarizam Harun, Firoz Hussein Ahmad Jamaluddin dan Badrul Hishah Abd Wahab.

Fail injunksi pagi ini

Bercakap kepada pemberita kemudiannya, Hafarizam (foto) berkata, mereka membantah kehadiran peguam persendirian untuk mewakili Sivakumar.

"Kami membantah kerana peguam-peguam tersebut tidak mendapat kebenaran penasihat undang-undang negeri untuk mewakili Speaker," katanya," katanya.

Dalam sidang akhbar yang turut dihadiri Firoz, Hafarizam juga memberitahu bahawa mereka memfailkan permohonan injunksi itu pada jam 8.30 pagi terhadap sidang dewan undangan negeri yang tidak sah oleh Pakatan.

Perkara itu akan didengar oleh Ridwan pada jam 2.30 petang ini.

Firoz berkata, permohonan itu bukan setakat untuk mendapat Injunksi, tetapi juga untuk menghalang sebarang sidang dewan yang tidak sah pada masa akan datang.

Ditanya siapakah yang boleh mewakili Speaker, Firoz (foto) berkata, sepatutnya penasihat undang-undang negeri atau wakilnya.

Zambry dan Sivakumar tidak hadir di mahkamah pagi ini.

Ketika perkara itu didengar dalam Kamar Ridwan pagi tadi, Sivakumar pula mempengerusikan sidang tergempar DUN Perak di bawah pokok di kawasan letak kereta berhampiran bangunan sekretariat kerajaan negeri Perak di Ipoh di mana wakil rakyat Pakatan meluluskan usul menyokong Datuk Seri Mohd Nizar Jamaluddin sebagai menteri besar dan pembubaran DUN.

Speaker’s lawyers removed

IPOH, March 3, 2009 - By Shannon Teoh - Malaysianinsider

Perak Speaker V Sivakumar’s legal team’s involvement in the trial over the suspension of the state executive council is over before it even began when they were removed by the Ipoh High Court.

Judicial Commissioner Ridwan Ibrahim ruled in favour of a preliminary objection by the team representing Perak Menteri Besar Datuk Zambry Abd Kadir and his six executive councillors, that as a public officer who is a member of government, the speaker should be represented by the state legal advisor or someone appointed by him.

The case continues this afternoon at 2.30pm in the judge’s chambers, where, ostensibly, an officer from the legal advisor’s office will represent Sivakumar.

Zambry’s legal team, which includes Umno legal advisor Datuk Hafarizam Harun, wants a stay of assembly proceedings pending the decision of the judge on the legality of Sivakumar’s decision to suspend the entire executive council for accepting their “unconstitutional” appointments.

Lead counsel for Sivakumar Tommy Thomas spent half an hour in the judge’s chambers along with Hafarizam and an assistant state legal advisor to argue whether Thomas and four other lawyers had locus standi to represent the Speaker.

“The judge ruled that we had no locus standi but I argued that it was an adversarial case involving different branches of government, the executive and legislative,” said Thomas, adding that in his opinion, the legal advisor only represented the executive branch.

He said that a request for a watching brief with speaking rights was also denied and so there was no point staying, adding before his team left, that they would have to consult their client before deciding their next course of action.

“We objected based on the grounds that they have no fiat, or permission, from the state legal advisor to represent the Speaker. The Speaker is a public officer. You must follow the law,” said Hafarizam.

“We want to stop this illegal assembly. You cannot have a meeting under a pokok,” he continued, referring to the assembly meeting held earlier under a tree.

Perak drama: Nizar says three motions passed.

11.20am: Nizar says three motions were passed during the Emergency sitting on Tuesday - motion of confidence on himself as the legal Perak MB; agreement to seek Royal consent for dissolution of state assembly; and the adoption of the suspension of MB Zambry Abdul Kadir and his Excos by the Rights and Privileges Committee.

(10:40am) At the High Court, Sivakumar’s lawyers withdraw from the case after Judicial Commissioner Ridwan Ibrahim rules that private lawyers have no locus standi and cannot represent the Speaker.

Ridwan says that under the Government Proceedings Act, the Speaker can only be represented by the state legal advisor, or lawyers appointed by the latter, because he is part of the state government.

Sivakumar’s lead counsel, constitutional expert Tommy Thomas, says they will await further instructions from the Speaker. He said they were refused speaking rights under Ridwan’s ruling.

(10:35am) Nizar proposes that the emergency sitting of the assembly be adjourned. Sivakumar adjourns.

(10:25am) Titi Serong rep Dr Khalil Idham says Nizar is the rightful mentri besar and wants him to continue. Canning assemblyman Wong Kah Woh says that Pakatan has ruled the state well since taking over last March.

Teja rep Chang Lih Kang proposes a motion asking for the dissolution of the state assembly to call for a new election.

Both motions are agreed to by all Pakatan reps.

(10:20am) After “doa selamat” prayers, the meeting commences with the hearing of the first motion from Titi Serong assemblyman Dr Khalil Idham Lim Abdullah.

He says the trust and support have been given to Nizar as mentri besar. Sivakumar asks for the motion to be debated.

(10:15am) Although allowed entry into the state secretariat building, Sivakumar did not go in. Attired in the official garb of the Speaker, he declares a vacant lot about 200m from the building as the venue for the emergency sitting.

(10:05am) Nizar gets into his car. Discussions going on between PAS, PKR and DAP assemblymen and Members of Parliament (MPs) on their next course of action. One MP is in the car with Nizar.

They are expected to head towards the DAP state headquarters where they might hold a press conference.

(10:00am) Pakatan assemblymen and Nizar not allowed into building, but police allow Sivakumar to enter. A policeman says, “YB tidak boleh masuk (Yang Berhormat is not allowed in).”

Pakatan supporters make a protective ring around their assemblymen so that they will not be chased away. Assemblymen start moving away however.

(9:45am) At the High Court, lead counsels for both sides are briefing the judge in chambers. They emerge from chambers at 10:17am to brief their legal teams.

(9:40am) Pakatan Rakyat assemblymen, including former mentri besar Datuk Seri Mohammad Nizar Jamaluddin, arrive at state secretariat building for emergency sitting of Assembly called by Sivakumar to vote on two motions related to the constitutional crisis in Perak.

Barisan Nasional supporters have lined up to prevent them from entering. Some pushing and shoving going on.

(9:00am) Federal Reserve Unit personnel have been deployed in front of state secretariat building, at least seven trucks being used to block main entrance. Police had already set up roadblocks on roads leading to the building earlier this morning.

A small crowd has gathered, comprising party members, lawyers, supporters and many members of the media.

(8:45am) Lawyers from both sides start arriving at Ipoh High Court in preparation for hearing of lawsuit filed by Perak Mentri Besar Datuk Dr Zambry Abdul Kadir against State Assembly Speaker V. Sivakumar.

Dr Zambry is seeking a court declaration that Sivakumar’s suspension of Dr Zambry and his six excos from the state assembly is unconstitutional.

IPOH: All eyes are on Perak Tuesday as the former Pakatan Rakyat state government, which maintains it is still the legitimate administration, attempts to oust the newly-formed Barisan Nasional government through an emergency sitting of the state assembly.

The emergency sitting was called by State Assembly Speaker V. Sivakumar, saying he was invoking Standing Orders 8 and 11 so that the assembly could vote on two motions.

While he declined to reveal what the motions were, except to say that they involved the constitutional crisis in Perak, former senior executive council (exco) member Datuk Ngeh Koo Ham later said the two motions involved seeking the dissolution of the State Assembly and reaffirming support for Datuk Seri Mohammad Nizar Jamaluddin as mentri besar.

The current Perak Mentri Besar Datuk Dr Zambry Abdul Kadir of Barisan has described the emergency sitting as “invalid and unlawful” because it had not received the consent of the Sultan of Perak, Sultan Azlan Shah.

“He has used his powers unfairly to achieve his own political agenda and he had ridiculed the proceedings of the House,” he said.

Pakatan lawyers say the Ruler’s consent was only needed to summon a sitting by way of royal proclamation if the assembly had been dissolved or prorogued (adjourned by royal prerogative). But because the last sitting was adjourned, the assembly could carry on its usual business in an emergency session.

Sivakumar had earlier barred and suspended Dr Zambry and his six exco members from the assembly.

To prevent the sitting from taking place, the current administration issued orders for the entrance to the state secretariat be barred. Police and Federal Reserve Unit personnel were already deployed late Monday to prevent anybody from entering.

Snap polls

Pakatan, which took over the state after the 12th general election last March, has been trying to call for new state elections after it begin to see its rule slipping away earlier this year.

The crisis began on Jan 25 when Bota assemblyman Datuk Nasarudin Hashim resigned from Umno to join Pakatan component party PKR, which led to rumours of many more cross-overs to and from both sides of the political divide.

The crisis deepened after Behrang assemblyman Jamaluddin Mohd Radzi and Changkat Jering assemblyman Mohd Osman Mohd Jailu, both from PKR and both facing corruption charges, went “missing” for a few days, only to resurface after a few days to announce they were quitting their party.

At the same time, Jelapang assemblyman Hee Yit Foong announced she was quitting DAP, another Pakatan component party.

All three declared they would remain independent but pledged their support for Barisan.

At the time, Sivakumar said that he had received letters from the three reps saying they were also vacating their seats, but the Election Commission decided that the resignation letters were not valid as they were undated and that there was no need for by-elections in their constituencies.

To add salt to Pakatan’s wound, Nasarudin announced he was switching back to Umno after fewer than 10 days as a PKR man.

With that, both Barisan and Pakatan held 28 seats each in the state assembly, but the three independents’ pledge of support to Barisan tipped the balance enough for Sultan Azlan Shah to declare Barisan as having the support of the majority and he refused Nizar’s request for the state assembly to be dissolved and snap elections be called.

Court battles

The tussle will also play out in the courts, with Nizar having filed an application for a judicial review to challenge the legitimacy of Dr Zambry as Perak mentri besar.

The case will be heard on Tuesday before High Court (Special Powers and Appellate) Court judge Lau Bee Lan, six days after Judicial Commissioner Mohamad Ariff Md Yusof recused himself from hearing the suit.

In his application for a judicial review, Nizar is seeking an interpretation of the Perak state constitution on whether the mentri besar’s post can be vacated in a situation whereby:

* THE mentri besar had advised the ruler on the dissolution of the state legislative assembly;
* THERE is no dissolution of the assembly;
* THERE was no motion of confidence performed against him at the state legislative assembly;
* THERE was no resignation made by him.

He is also seeking a declaration that he is the legal mentri besar of Perak and asking for an injunction to stop Zambry from carrying out the duties and functions of the mentri besar; and also punitive, aggravated and exemplary damages and costs.

On Monday, Perak executive councillor Mohd Zahir Abdul Khalid served an originating summons on behalf of the three independent reps -- Jamaluddin, Mohd Osman and Hee -- seeking a court declaration that they were still elected representatives of their constituencies.

The three were challenging the Speaker’s decision that they had resigned and that their seats were vacant. This case will be heard on Thursday.

Meanwhile, Dr Zambry has sought a court declaration to make illegal Sivakumar’s suspension of him and his six exco members. This case will also be heard on Tuesday morning.

Dr Zambry said he was seeking a declaration that Sivakumar’s decision was unconstitutional and ultra vires the state constitution.

He sought declarations that he and his exco members had the right to attend sittings and that the House was not to be bound by any rules by, or instructions from, the Speaker.

courtesy : staronline