Showdown in Perak on 7 May

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.

Sivakumar 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.

Zambry (File pic)

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 session.

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.

Ngeh 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.

Chang 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.