There are two distinct issues here – not to be confused: (A) whether Datuk Zambry Abd Kadir and his 6 cohorts could be and were validly appointed by Royal fiat to Perak State Assembly as the MB and state executive council members respectively in first instance ;(B) whether Speaker Sivakumar could later suspend Zambry and the 6 from attending the state assembly in non recognition of their appointment.

Article 72 (1) of the Federal Constitution, according NH Chan, provides that “the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.

NH Chan’s argument here (relating to issue B above) is that Speaker Sivakumar’s suspension of Zambry and the 6 was an integral part of proceedings in a Legislative Assembly – and that the validity of such suspension being “part of proceedings in the Legislative Assembly” could not be questioned, much more struck down by the Court by reason of article 72(1) of Constitution…

This argument may be rebutted: the validity of proceedings in the Legislative Assembly cannot be questioned by courts only IF the Legislative Assembly were PROPERLY and legally constituted at the time such proceedings were taken.

Was the Perak State Assembly properly and legally constituted at the crucial time Speaker Siva – purporting to act on behalf of such an assembly – decided to suspend Zamri and the 6?

Now BN supporters would say “no” because Zamri and the 6 (though validly appointed by Perak Ruler) were excluded from the Perak State Assembly when Speaker Sivakumar’s decision to suspend Zamri and the 6 was taken.

PR’s supporters would of course demur: No, they would say, implicitly of the view that Perak Ruler could not validly appoint Zamri (and from there Zamri of the other 6) earlier.

Challenging the validity of a legislative Assembly, whether its properly constituted is a thing separate and a part from challenging validity of proceedings and deliberations of an Assembly whose manner of being constituted is otherwise accepted bgy all as valid and not in contention.

Federal Court is not going against article 72(1) of Constitution if it invalidated Sivakumar’s suspension decision on grounds that it emanated from a Perak Legislative Assembly that was not properly constituted at the time of Siva’s decision by virtue of exclusion of Zamri and the 6!

One can see here all problems begin ultimately stems from issue (A) above – whether Royal fiat appointing Zamri as MB was valid which in turn caused Zamri as MB to appoint the other 6. This issue A is cardinal because it is the first cause that led Speaker Sivakumar to take the second course of suspending Zamri and the 6. Here Federal Court (impugned by NH Chan) had to decide on (B) before (A) had been decided. To use a homespun analogy, it is like looking at the Cart first before the Horse is looked at when asking whether whether the carriage would run its course with the Horse supposed to pull the Cart!

Bottomline, not everyone is the Lion of Jelutong who would dare take the Bull by the horns or rather shall I say “Horse” by its ears (Issue A) and call a spade a spade in fear of being belled “derhaka”. Taking on the Federal Court on issue B -as what NH Chan appears doing- seems lesser of risks (on balance) though I suspect Federal Court’s decision on B “ukltra vires argument) is likely defensible on a standalone basis – depending on the first issue (A), which, well, it will be heard and decided soon by the courts, which PR already preempted outcome by fielding and helping Mohd Nizar win Batu Gantang parliamentary seat. :)

“I think it is pointless to argue further.” – Lim Kam Put.

I am in total agreement because I too have no comprehension what you are talking about though any connection between your perception of unreality of what I said and mine, yours, is purely coincidental.

“Was the state assembly properly constituted when the decision was made to suspend the six? Come on, how many ways you want to split the hair? Wasn’t Sivakumar the properly appointed speaker of the assembly when the decision was made?” (Answer : nothing to do with Sivakumar being properly appointed speaker. The matter is whether there was a properly constituted assembly). “What then is the definition of the assembly? Does a physical building matter? To me, an assembly is a congregation of assembly men and women, met at an appointed time, duly consider the issue and made decision thereof” (Answer – no one is saying assembly was not properly constituted if it did not hold meeting within physical building, and held it under the tree. Why raise something irrelevant here? Argument is that assembly was not properly constituted (from BN’s supporters’ standpoint) because it excluded Zamri and 6 considered properly appointed by Perak Ruler though those unhappy with the overthrow of Perak state govt would view Assembly, at time of Siva decision, properly constituted even if it Zamri and 6 were excluded, the reason being that that they were not properly/constitutionally appointed to their positions by Royal fiat and hence had no claim to a place in the Assembly). Suffice to say, whether and which side is correct, will depend on the answer to the first issue (issue A) yet to and will soon be decided by the courts – ie whether Zamri was validly appointed MB by Perak Ruler and tyransferred power without conceding to PR’s Mohd Nizar’s request for dissolution of Perak Legislative Assembly. I wonder whether this is too hard for Lim Kam Put to understand or he is too emotional to understand it.

In last para – …”Speaker Sivakumar’s decision to adjourn is not therefore construable as…” No double negatives.

Lim Kam Put, surely you should realise by now that most of us here have, in maturity terms, gone beyond the point to think that calling anyone here in a group discourse a “nincompoop” or a “mega nincompoop” will advance our point of view or rebut another whose view we disagree or dislike or worse still do not understand.

The constitutional theory is that three branches (legislative, executive, or judicial) of a government are and ought to be separate from one another. This offers the necessary check and balance.

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.