Since the court proceedings for the case of Nizar versus Zambry are still pending, most legal professionals will prefer that the convene of Perak State Legislative Assembly be put on hold until the Kuala Lumpur High Court has already dropped a judgement on whether the appointment of Zambry as the Menteri Besar by the Sultan is valid.

The Perak State Assembly Secretary has already issued a call notice to all 59 state assemblymen for a convene of State Legislative Assembly on 7 May 2009. By right, such a call notice shall not be issued prior to obtaining a written approval from the Sultan of Perak. Lack of approving signature from the Sultan has been cited by the Perak State Assembly secretary as the reason for not recognizing the Assembly meeting under the democracy tree. If the Sultan has not given the written approval for the convene of meeting for the Perak State Legislative Assembly on 7 May 2009, then the meeting session to be held on this date shall also not be legally recognized.

I will be bewildered if the Sultan himself really wants to grant the approval for convene of meeting in the State Legislative Assembly by Zambry since the Sultan himself likes to posturize himself as an impartial ruler who will stay above politics. I believe it is the legal responsibility of the Perak State Assembly Secretary to show proof to the public that the Sultan already laid his hand on the approval paper for the convene of meeting of Perak State Legislative Assembly. Otherwise, the call notice for the convene of meeting on 7 May 2009 will just be null and void since it has no legal binding without bearing the signature of the Sultan.

Godfather, i fully agree with you.

Fresh state-wide elections is the best solution to the problem, but then why would BN agree to it knowing that they will lose, and lose even more badly this time around ? If I were BN, I would hang tough and ensure that my insurance policy (in respect of the judiciary) does what it was meant to do in the first place.

The current development is such that supporting PR will not only bring about a more democratic and progressive Malaysia, but will also make it less likely for PAS’ agenda of Islamic state to succeed. There are pro-UMNO and pro-Anwar factions within PAS. A refusal to incorporate PAS into PR will only strengthen the the pro-UMNO faction and may lead to PAS’ joining forces with UMNO. The non-Malay support for PAS under the framework of PR has led to the marginalisation of the conservative pro-UMNO faction in PAS, and that is a good thing.

Thus, I now think that we should support PR. Anwar is obviously the key person.

I attended a seminar on the Perak constitutional crisis at the Faculty of Law, National University of Singapore, last Wednesday. After the seminar, I asked Prof. Kevin Tan, an expert in constitutional law in the panel, about N. H. Chan’s interpretation of Article 72(1) in relation to the suspension of the BN cohort (Zamry and six other BN assemblymen). He seemed to suggest that not every decision made by the speaker could be seen as part of the proceedings of the state assembly mentioned in article 72(1). In any case, he thought that the court had a jurisdiction to review the decision to suspend the BN cohort.

Of course, the panel thought that the best solution to the crisis was to dissolve the state assembly for a state-wide election.

The committee of privileges headed by the Perak speaker suspended the BN cohort. The decision was then upheld by the assembly meeting under the tree.

If the committee has the power to suspend assemblymen in the committee’s hearing without first having secured a vote in the assembly meeting, and if what the committee decides in its hearing is part of the proper proceedings of the state assembly, then the Federal court’s ruling does seem to have violated article 72(1) of the Federal Constitution. In that case, the issue of issuing the suspension when the assembly was not properly constituted does not arise.

As far as judiciary is concerned, it is supposed to be final arbiter of what is the proper check and balance between all 3 branches.

The Courts therefore can review what the other legislative and executive are doing – up to a point, if either legislative and executive is acting in excess of its respective powers and authority.

Article 72 of Constitution provides “ the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court” .

It says the obvious : courts cannot review, disturb and countermand the proceedings of legislature (whether in parliament or state level) if legislature were acting within its proper powers and limits. Same too if the Executive government were acting within powers and their proper discretion, courts cannot go behind and review Ministerial decision. [If it were otherwise – if courts could disturb legislative proceedings or executive decisions when each were properly conducted within powers, the courts would be up-setting the theory of separation of power and engaged in naked usurpation of the powers of the other two branches of government].

In present Federal court decision under discussion – and attack – it is trite that court can, in spite of article 72 of Constitution – question the validity of and nullify any proceedings in the Legislative Assembly of any State if that Legislative Assembly is acting beyond its constitutive powers and limits. (This is where
N H Chan’s unqualified statement that 72 bars all judicial interference/review in all circumstances) cannot be correct).

The implicit assumption of the Federal Court in deciding the way it did (against Sivakumar’s decision) in the Zamri against Sivakumar’s case is that the Legislative Assembly of Perak led by Sivakumar, as the time of its decision, to suspend Zamri & 6 was acting beyond its powers as the Assembly was by such exclusion of Zamri & 6 itself not properly constituted.

Of course whether or not this implicit assumption is correct (what I call issue A) is a subject to be and will be decided in the other case between Zamri & Mohd Nizar (different from Zamri against Sivakumar), which decision will soon be known…

An improperly constituted legislative assembly (whether at Federal or State level) cannot claim immunity from having its decision and proceedings scrutinised, reviewed or overturned by judiciary based on theory of separation of 3 different branches of government – because separation of powers between 3 different branches of government (legislative, executive, or judicial) assumes each branch of government (whether legislative, executive, or judiciary) is properly constituted!

So in this sense the dispute between Siva and Zamri (issue B) is much dependent on whio is correct in the other dispute between Mohd Nizar and Zamri and Zamri was properly appointed by Perak Ruler!

This also means the latter dispute between Mohd Nizar and Zamri (issue A) should properly be determined by the courts first as it has pivotal bearing on the other dispute between Siva and Zamri (issue B), which should be decided and resolved later.

As it happened, the cart was put before the horse as the Federal court decided on Issue B (against Siva) first as if on issue A it was already determined that Zamri was properly appointed by Ruler!

So on standalone basis, Federal court decision against Siva in his suspension of Zamri is correct only if in the other dispute it were likewise determined by the other court that Zamri was properly appointed as MB by Perak ruler – or else if subsequent decision proves otherwise, then the earlier Federal court decision against Sivakumar (in the face of article 72) will likewise be wrong.

I cannot make this plainer.

This is not to say that the current case is rightly decided. I just want to satisfy my curiosity in relation to this aspect of the law.

That is only what you think or perceive I have maintained or said in my earlier postings.

This is however not what I have maintained or said.

I don’t know how and by what mental process you so conclude the way you did.

And I am not curious and don’t need to know so.

Now most people know that Zambry of BN has tried to call for a convene of meeting session of Perak State Legislative Assembly on 7 May 2009. If it is proven that such a call for convene of meeting session in the state legislature has already been approved by the Sultan of Perak, then it is quite difficult for Pakatan Rakyat to challenge such a decision of the ruler if the proper documents have already borne the due signature of the Sultan.

If the Sultan does not put his hand on the notice of calling for a convene of meeting session of the state legislature, then the call notice for convene of meeting on 7 May 2009 which has been served by the sacked secretary of the state legislature will be invalid and no legal binding.

In the end, the ball will be kicked to the Sultan in order for the Sultan to make the final decision in a political dispute. If the Sultan prefers to stay above politics, then it is advisable for His Highness to act or decide by only taking the advice of a legitimate Menteri Besar. Since no motion of no confidence against Nizar has been managed to be tabled in Perak State Legislative Assembly and has been given a resolution so far, technically speaking Nizar should still be the legitimate Menteri Besar.

However, the High Court of Kuala Lumpur may have a different opinion about the case of Nizar versus Zambry. It is much better for the High Court to make a quick decision now before further damages are to be created by either party of the dispute in Perak fiasco which has happened since February 2009 until to-date.

At the end of the Perak fiasco, the Malaysian people will be able to see how far the influence of a ruler can reach in matters pertaining to the appointment of a Menteri Besar and removal of a Menteri Besar and a Speaker of the State Legislature.

Let’s be fair here. Who really went around the circle and kept introducing new variables into discussion each time he is cornered.

Let me summarise for you our discord:

1. You have always maintained that we can count our legal system to deliver justice for political cases. I said otherwise. We have a wager on this and you lost miserably.
2. You said the appointment of new MB and other six exco members are legal or alternatively only the court would be able to determine fairly and impartially. I said no, because I can’t count on our court’s impartiality in political cases.
3. You then said, only PR supporter like me would say such a thing and reminded me that the court is in better position to judge convincingly, fairly and impartially. I said, ok, granted that I may be biased, but I have also long suspected that our court is not the best place to deliberate fairly political disputes. In fact our founding fathers foresaw this and that is why they have chosen to include article 72 into the Federal Constitution of Malaysia.
4. You then reminded me Perak consists of not only of PR supporters but also BN supporters and those who are neutral who may not count on the impartiality of “Sivakumar’s” Assembly to make a fair decision. I said fine, may be you are right. Let’s have a fresh election in Perak then, which I think is the fairest under the circumstances.

What else have you got to say, the great QC. Please don’t think you must have the final say in everything. I read most of your posts. Sometimes you make sense, sometimes you make nonsense.

http://sonofpenang.blogspot.com/2009/04/pakatan-rakyat-to-form-next-federal.html

Unless BN govt do not intend to clean up the judiciary, this was a bad idea and a worst idea to continue the way they are going…

The fact they can’t admit what they have done was stupid is an example of why Najib is no different than Mahathir – they can blame others very quickly but can’t admit and correct their own mistake when its obvious to everyone else already. Mahathir did it to our institutions like judiciary, police, schools and now Najib is just doing it to our legislative and civil service arm. Najib is making himself look like George Bush Jr. – a prodigal son in the end.