Pertinent questions affecting Sivakumar and Ganesan

THE debate on the legality of the removal of V Sivakumar as speaker of Perak state legislative assembly (“LA”) has raised a number of pertinent questions.

This is the first and most crucial question: at what point did the first meeting of the second session of the 12th state LA on 7 May (7 May meeting”) legally sit?

According to the opinion expressed by Tommy Thomas, the 7 May meeting did not legally sit until it was opened by the royal address of the Raja Muda of Perak (RM) which only took place between 3.16pm and 3.47pm.. He is of the view that the LA must have been “opened” to be in a legal position to transact business, including deliberating a resolution to remove Sivakumar which was purportedly passed at about 10.30am.

In other words, the LA was not legally sitting when it passed the resolution. In consequence, Sivakumar was not lawfully removed and therefore continues to the lawful speaker.

Thomas relies on Standing Order (SO) 90 which allows Commonwealth parliamentary practice and usage to be used as guidance on issues where the standing orders of the state LA are silent. And relying on authoritative and leading texts on parliamentary procedure in the Commonwealth, he comes to the view as mentioned above.

The reliance on SO 90 is made because he considers the two other standing orders, namely SO 1 and SO 13, as not applicable to the 7 May meeting.

SO 1 states that on the first day of the meeting of the LA after a state general election (GE), members having assembled and seated accordingly, the secretary of the LA shall read the proclamation of His Highness the Sultan of Perak (HRH) by which the meeting was summoned and thereafter the LA shall transact the business in the order stated.

Since SO 1 expressly refers to the first meeting after a state GE, which is the first session of the legislative term, Thomas argues that it does not apply to the 7 May meeting.

This, however, begs the question: if the first meeting of the first session, which arguably is the ‘mother of all sittings’, commences with the secretary of the assembly reading the proclamation of His Royal Highness (HRH) following which the order of business for the day shall proceed, why not the first meeting of the second session, or subsequent sessions for that matter?

It has to be born in mind that the first meetings of each and every session of the LA are all summoned by proclamations of HRH pursuant to Article 36 of the state constitution.

The reading of the proclamation by which the first meeting was summoned arguably opens the session of the LA. This would not be at odds with Commonwealth parliamentary practices which declare a session of an assembly opened either by the monarch in person or by commission. (Emphasis is mine)

So, SO 1 does offer more than an “indirect assistance” to the issue. It is therefore arguable that the 7 May meeting had legally begun with the secretary reading the proclamation of HRH, if ever there was, and members having assembled and seated accordingly in the assembly.

It follows then that the LA was in a legal position to proceed with transacting the business of the day. From here on, SO 13 becomes relevant. According to the SO 13(1), the business of the day should be in the following order: (a) Formal entry of the speaker (b) Prayers (c) Taking of oath by any new member (d) Messages by HRH (e) Announcements by Mr Speaker (f) Petitions (g) – (p), which are specific matters including public business as they appear on the Order Paper for the day.

Now, the legality of the removal of Sivakumar perhaps lies by reference to, among others, SO 13(2). Here it provides that the LA may, upon a motion by the menteri besar or in his absence a member of the state executive council, decide to proceed to any particular business out of the regular order. The motion by the menteri besar, which may be made without notice, is to be decided without amendment or debate and shall take precedence over all other business.

It follows that the LA may begin with any items of business as they appear on the Order Paper for the day subject to the LA deciding to do so after a motion by the menteri besar.

That appears to be perfectly valid. It flows from the principle that the LA regulates itself.

So, the crucial question that needs to be asked is: was there a motion by the menteri besar to proceed to any particular business out of the regular order? In the circumstances of the 7 May meeting, was there a motion by the menteri besar to proceed with a motion to remove Sivakumar as speaker of the LA being a particular business out of the regular order?

In any case, having said that the 7 May meeting had arguably begun with the reading of the proclamation of HRH, Sivakumar, in his capacity as the speaker, was legally entitled to order the 10 assemblypersons to leave the assembly. By SO 89 his ruling was, and arguably remains, final subject to a substantive motion moved for that purpose. This begs another question: why wasn’t the order carried out and enforced?

The other pertinent question is: was Ganesan lawfully sworn in as the speaker of the LA? If the answer is “no”, then the 7 May meeting had proceeded thereafter with a speaker of the LA not duly sworn in and who had not taken his oath of office and oath of allegiance.

And this would appear to be fatal as Article 36A(1A) of the state constitution provides that any person elected as speaker who is not a member of the assembly shall, before he enters upon the duties of his office, take and subscribe before the assembly an oath of office.

Mohamad Hafiz Hassan