Sunday, February 22, 2009

Speaker's behaviour bizarre

THE speaker of the Perak state assembly is indeed an interesting character. Tronoh state assemblyman V. Sivakumar from the DAP made history by becoming the first Indian to be elected speaker of a legislative assembly in Malaysia.

In fact, his name did not make headlines until recently. In June last year, Sungai Rapat assemblywoman Hamidah Osman had to apologise and retract her derogatory remark when she asked if Sivakumar would "agree to disagree" with the well-known fable of whether a snake or a man from a particular race should be killed first.

This insensitive remark also caused the Perak Umno and Barisan Nasional to later apologise to the Indian community who felt offended by it. But Hamidah was not referred to the Committee of Special Privileges.

Instead, last Wednesday, the committee, chaired by Sivakumar, summoned Menteri Besar Datuk Dr Zambry Abdul Kadir and his six executive councillors to appear before it over a complaint made by Canning assemblyman Wong Kah Woh that Zambry and the six exco members had shown contempt for the house allegedly by getting themselves appointed to their positions.

After a meeting which lasted only about 30 minutes, Sivakumar announced that Zambry had been barred from attending assembly sittings for 18 months. The six exco members were barred for 12 months.

Interestingly, just four days before the meeting, Sivakumar was reported to have said at a press conference that the purpose of the meeting was to gather information and compile a report.

He added that the report would then be presented when the house sits, and it would then be up to the house to decide on the actions to be taken.

This is consistent with the Perak state assembly's Standing Orders 72 and 78 which expressly require the report of the committee to be tabled in the legislative assembly for approval and adoption.

I find Sivakumar's behaviour in the entire affair since the fall of the Pakatan Rakyat state government rather bizarre.

It is a well-known convention that a speaker must be politically neutral. In England, as soon as the speaker is elected, he has to resign from his political party and stay away from political issues. Political impartiality of the speaker is implied in article 44(3) of the Perak state constitution which provides that the speaker is not entitled to vote unless it is necessary to avoid an equality of votes.

While it is understandable that a speaker within our Malaysian context will make procedural rulings in favour of his own party, Sivakumar's conduct, especially outside the proceedings of the assembly, can only be described as disturbing.

He played an active part politically the very moment news broke that Jamaluddin Mat Radzi and Mohd Osman Mohd Jailu had decided to become independents.

First, Sivakumar allegedly said the undated letters of resignation were faxed to his home. Later, he allegedly corrected himself by saying the letters were actually hand-delivered by some unknown persons.

He was on television to announce that the two assemblymen had vacated their seats, not alone from the speaker's office but at a press conference flanked by the previous executive councillors.

He also announced that the two independents had been barred from attending the sittings of the assembly prior to the sultan's decision to appoint Zambry, making it near impossible for a full assembly to be convened to take a vote of confidence on Datuk Seri Mohammad Nizar Jamaluddin.

Hence, I am surprised that, having played such an active role, it did not cross his mind at all that it would be wrong for him to either chair or attend the committee of special privileges hearing against Zambry and his exco members.

This goes against one of the fundamental rules of natural justice -- nemo judex in causa sua which means no one should be a judge in his own cause.

To hold that Zambry and the others are in contempt of the house by getting appointed is as good as saying the sultan is also in contempt by appointing them.

Based on this ground alone, the validity of the suspension decision of the committee can be challenged.

This is not prohibited by Article 72(1) of the Federal Constitution which reads: "The validity of any proceedings in the legislative assembly of any state shall not be questioned in any court."

Under Article 160(2) of the Federal Constitution, "legislative assembly" as defined does not include any of its committees.

While Sivakumar may be insulated from any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the committee under Article 72(2) of the Federal Constitution, Article 72(1) clearly does not exclude any proceedings of any committee of the legislative assembly from judicial scrutiny because unlike Article 72(2), Article 72(1) does not contain the words "or any committee thereof".

Further, the counterpart provision for Parliament is Article 63(1) of the Federal Constitution and this article, unlike Article 72(1), expressly provides that the validity of any proceedings in either house of Parliament "or any committee thereof" shall not be questioned in any court.

In this respect, the Supreme Court in the majority decision of Haji Salleh Jafaruddin v Datuk Celestine Ujang & Ors 1986 deliberately left open the question whether Article 72(1) applied to proceedings in the committee of privileges of a state assembly. Judge Mohamed Azmi also opined that should the words "any proceedings" in Article 72(1) arise for determination in future, perhaps a panel of more than three judges of the apex court should consider whether the court's power is exercisable in respect of quasi-judicial or even administrative proceedings of the state legislative assembly or its committee, as distinguished from its legislative proceedings, having regard to the doctrine of separation of powers.

It follows that whether this matter is brought to the courts or not, the assembly should be immediately convened without barring any elected representative to discuss the suspension order and to enable a vote of confidence on the government to be taken.

Otherwise, fresh elections should be held in order not to prolong the political instability which is bad for both Perak as well as the country.

To quote the 15th American president, James Buchanan, "the ballot box is the surest arbiter of disputes among free men".

Published in the New Sunday Times, 22 February 2009

The power is vested in the Attorney-General, not the Bar Council

The Sunday Star
WITH reference to the letter by WKL of Penang in The Star, February 19 (“UUM law grads still awaiting reply from Bar Council”), I wish to clarify on behalf of the Bar Council that the power to exempt Universiti Utara Malaysia law graduates from the Certificate of Legal Practice examination is vested with the Legal Profession Qualifying Board chaired by the Attorney-General, and not the Bar Council.

On Aug 24, 2008, 10 senior legal practitioners, together with other evaluators from the Judiciary and the Attorney-General’s chambers, all appointed by the Board, visited Universiti Utara Malaysia in Sintok, Kedah, and then Multi-media University in Malacca on Sept 3, 2008, to determine if UUM and MMU law graduates should be exempt from the CLP examination.

We have already made our recommendations to the Board, and it is for the Board to decide.

Malaysian Bar Evaluation Team head,
Kuala Lumpur.

Tuesday, February 17, 2009

Bar Council seeks royal panel on Bukit Antarabangsa tragedy

The Star

PETALING JAYA: The Malaysian Bar Council has called for the immediate setting up of a Royal Com­mission of Inquiry into the Dec 6 Bukit Antarabangsa tragedy.

The council’s task force, in its report on Bukit Antarabangsa, also strongly called for the removal of the immunity of local authorities and officers under Section 95 of the Street, Drainage and Building Act.

The council wanted appropriate action to be taken against the parties responsible for the Bukit Antarabangsa tragedy which claimed four lives and caused substantial injury and destruction to property.

It said the relevant authorities must also sanction the immediate discontinuation of all ongoing hillside development projects not meeting the minimum requirements of safety, or which have not complied with the applicable laws, regulations and guidelines.

“As a precautionary measure, all hillside development on gradients exceeding 25 degrees should be banned until proper laws are passed,” said the report.

The task force was appointed by the Bar Council in December to find solutions to prevent or minimise future landslides in or around hill­slope developments.

The six-member task force was headed by chairman Roger Tan.

The council also called for the relevant authorities to conduct an immediate safety review of all existing hillside development at the cost of the developers.

In a press release, council president Datuk S. Ambiga said it was deeply concerned with the recent announcement by Works Minister Datuk Seri Mohd Zin Mohamed that there would not be a blanket ban on hillside development.

“It is particularly alarming that this statement has been issued at a time when the many controversies surrounding hillside development still remain unresolved, without proper explanation by the authorities,” she said.

“It is also understood that the Federal Government’s Commission Investigation report into the cause of the landslide at Bukit Antarabangsa which has been completed, has yet to be made public.”

On the task force’s report, Ambiga said it identified the key likely contributory causes of landslide tragedies including the lack of competent expertise in design, construction, site supervision and maintenance and communication during the construction process.

Wednesday, February 11, 2009

A power game that lacks ethics, morality

New Straits Times
by Sheridan Mahavera

IF the Perak crisis looks bad, you really haven't seen how crossovers have racked India. Constitutional law expert Professor Dr Shad Saleem Faruqi notes that three general elections had to be held in five years because governments were brought down by defecting MPs.

An anti-hopping law, its supporters argue, would give Malaysian politics its much-needed moral spine and excise the money and largesse that plagues it.

With such a law, there would not be "two" menteri besar in Perak and the eruption of street protests and rallies between their supporters everywhere.

If done judiciously, Dr Shad says, a crossover law would not impinge on a person's freedom of association, as provided under Article 10 of the Federal Constitution.

Neither is Perak the first state government to be dethroned by crossovers. Professor Datuk Shamsul Amri Baharudin of the Institute of Malay World and Civilisation recalls that it has happened four times since Merdeka: in Terengganu in 1959, Sarawak in 1967, Kelantan in 1978 and Sabah in 1994.

Crossovers are "a low point of democracy", Dr Shad said on a recent news programme on Bernama TV. The argument is that it dishonours the electoral mandate given by voters to a candidate, since they are largely chosen on the basis of the party they represent.

According to Ibrahim Sufian of independent polling and research group the Merdeka Centre, the data shows that Malaysians think of party before personality when they go to the ballot box.

"About two-thirds of voters are in some way affiliated to a political party, whether they are sympathisers and supporters or core members," said Ibrahim.

Political parties, he explained, have become entrenched in Malaysian life through their extensive programmes. For instance, visiting a family that has been hit by a flood, fire or desperate poverty is today standard operating procedure for every wakil rakyat, whether from Barisan Nasional or Pakatan Rakyat.

"When you put parties like Umno, Pas and MCA together, they have millions of members," says Ibrahim, "so when an election is called, as much as two-thirds of the votes will likely be going to a certain party."

In Merdeka Centre's research, who a candidate is matters only when she or he is a huge personality like a cabinet minister, parliamentary opposition figure, or someone well known in the district. Fence-sitters make up the remaining third.

So candidates voted in cannot truthfully say they were chosen for their charisma, smarts or looks, while discounting the thousands of workers and ringgit -- and the party brand -- that carried them in.

"Voters should be given a choice to review their decision on their candidate when he switches camps", said Universiti Kebangsaan Malaysia political scientist Associate Professor Muhammad Agus Yusof.

Agus proposes that Article 48 of the Constitution be amended to allow wakil rakyat who resign from their posts to seek re-election, as they are currently barred from electoral office for five years. This provision is one reason why elected representatives who have a "change of heart" are reluctant to vacate their seats.

Dr Shad says crossovers can also be discouraged by introducing a new law or amending Article 10 of the Constitution, which relates to freedom of association, both of which are possible.

Article 10(1)(c), indeed, allows Parliament to impose restrictions on freedom of association in the interest of security, morality and public order, wrote Bar Council member Roger Tan in the NST in June last year.

The Federal Court in 1992 ruled against an enactment in the Kelantan state legislature that was designed to prevent defections, but a later 2005 ruling on a separate case could pave the way for another shot at introducing anti-crossover regulation.

"If an anti-party hopping law can be justified on the grounds of 'morality'," wrote Tan, "no amendment to the Federal Constitution will be necessary and the government will only need a simple majority to pass anti-hopping legislation."

So if such a law were a moral imperative and not legally impossible, it becomes a question of when and not how Parliament can get such a law passed. Perhaps the reason why no one seems in a hurry to enact one is that it is not in the interest of Pakatan and BN to have one.

Aside from a small minority of leaders in both coalitions, no one seems to think that crossovers are immoral. Pakatan was prepared to do it to seize the Federal Government, and the BN has engineered enough to see the collapse of one state government.

A few weeks before Pakatan's Perak administration fell, Pas, Parti Keadilan Rakyat and DAP were singing the praises of Bota state assemblyman Datuk Nasarudin Hashim, who switched from Umno to PKR. Nasarudin's return to Umno promptly shut them up.

Ethics, said Shamsul Amry, have gone out of the window. What's left is a vicious game for control and a contest of interests. Lest both coalitions disregard the view that ethics and morality should be returned to politics through an anti-hopping law, they should pay attention to the views of a voter who wanted to be called Blaise John.

John had phoned into the TV talk show featuring Dr Shad, and told viewers that he was "sickened" by all the crossovers.

"We spent time and money to queue up during the last general election only to discover that our wakil rakyat switched camps after we voted him in," he lamented.

"Next general election, I may consider not going to vote at all, because what's the point if the person I vote for changes parties?"

Since some politicians seem quite comfortable with politics being about just power and control, it's up to people like John and the rest of Malaysia's voters to declare otherwise by booting them out at the next general election.

Sunday, February 8, 2009

Thorny issues that need attention

THE Perak fiasco seems to continue unabated, and a long-drawn legal battle appears inevitable.

Three vexed legal issues have arisen, and they are:

- whether undated letters of resignation are valid.

- whether the Election Commission has acted ultra vires (beyond its powers) when it decided not to call for by-elections in the seats of Behrang and Changkat Jering.

- whether the Sultan of Perak has erred constitutionally by asking Datuk Seri Mohammad Nizar Jamaluddin to resign when no motion of no-confidence had been passed against the latter in the state assembly.

On the first issue, Pakatan Rakyat will have to convince the court it should not follow the 1982 decision of the Federal Court in Datuk Ong Kee Hui v Sinyium Mutit, which held that such an arrangement is void and the court will not lend its aid to an illegal transaction as it is against public policy.

In giving the judgment of the Federal Court, judge Tun Salleh Abas said: "The system of representative government is based upon freedom of choice. The electors must be free to choose a candidate to represent them in the legislature, whilst the candidate who is successfully returned must in turn be free to act in accordance with his independent judgment. Any arrangement depriving him of this independence is frowned upon by the law as violating public policy."

The second issue revolves around Article 36(5) of the Perak Constitution which reads: "A casual vacancy shall be filled within 60 days from the date which it is established that there is a vacancy."

The word "establish" connotes something has to be done to ascertain whether a casual vacancy has arisen. It is interesting to note that only two other state constitutions use the word "establish" -- Sabah and Sarawak.

The others contain an almost identical provision stating that a casual vacancy is to be filled within 60 days on which it occurs.

However, the Perak Constitution is silent as to who should "establish" there is a casual vacancy. But to say that it is not the business of the Election Commission to establish a casual vacancy has arisen may not be entirely correct.

In fact, Article 21(5) of the Sarawak Constitution and Article 54(1) of the Federal Constitution expressly and respectively provide that casual vacancies in the Sarawak Assembly and Dewan Rakyat are to be established by the Election Commission.

Article 113(1) of the Federal Constitution provides that the Election Commission shall, subject to the provisions of federal law, conduct elections.

The federal law in question is the Elections Act 1958, and Section 12(3) of the act provides as follows: "In relation to a vacancy which is to be filled at a by-election, a writ shall be issued not earlier than four days and not later than 10 days from the date on which it is established by the Election Commission that there is a vacancy."

It follows that for Pakatan Rakyat to succeed on this issue, it has to convince the court that, taking the Perak Constitution in totality, it is the speaker who establishes when a casual vacancy has occurred.

The third issue involves the interpretation of Article 16(6) of the Perak Constitution, which reads: "If the menteri besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the State Executive Council."

Of course, if the Sultan of Perak had decided to dissolve the state assembly based on the ground that the three independents -- Jamaluddin Mohd Radzi, Mohd Osman Mohd Jailu and Hee Yit Foong -- had vacated their seats, then that would also mean the sultan would have prejudged the issue by saying the EC is wrong by not calling for by-elections.

The issue is how the sultan determines that the menteri besar ceases to command the confidence of the majority of the members of the legislative assembly if no vote is taken in the assembly against the menteri besar.

It was decided as far back as in 1966 in the case of Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli that the Sarawak governor only had the power to dismiss the chief minister if the lack of confidence had been demonstrated by a vote in the Council Negri.

However, the Kota Kinabalu High Court did not follow the 1966 decision in Datuk Amir Kahar Tun Mustapha v Tun Mohd Said Keruak & Ors 1995.

The court held that a vote in the assembly is not the only means to determine the confidence of the members of the assembly in the chief minister and it depends on the circumstances. The court added that other extraneous matters may provide sufficient evidence to establish the fact that the chief minister has ceased to command the confidence of a majority of the members of the state assembly.

The court further held that the 1966 case must be distinguished, being a decision based on its own facts and circumstances, because the alleged loss of confidence was highly suspect.

Here, the Sultan of Perak went one step further by sitting down with each of the three independents to satisfy himself that all three of them no longer supported Nizar and, therefore, the Pakatan Rakyat government.

The alleged loss of confidence was convincing enough for the sultan to decide that Nizar should resign in accordance with Article 16(6) of the Constitution.

Hence, Pakatan Rakyat will have to convince the court that sovereign discretion is justisiable, and that without a vote in the assembly, the sultan could not ask Nizar to resign.

Whatever it is, the events in Perak have convinced me even more that we should have anti-hopping legislation.

As I said in an earlier article, "Anti-hopping law vital for stability", on June 22 last year, politicians from all divides should very well remember that what goes around will come around to haunt them.

Published in the New Sunday Times, 08 February 2009

Tuesday, February 3, 2009

Reps can rescind quit letters, say lawyers

New Straits Times
by David Yeow and Azura Abbas

KUALA LUMPUR: Perak Parti Keadilan Rakyat assemblymen Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Mohd Jailu (Changkat Jering) can rescind their undated resignation letters, say legal experts.

Lawyer Datuk Baljit Singh Sidhu said the two assemblyman could retain their posts despite allegations that they had vacated their seats.

"All they have to do is inform the Election Commission that they have not resigned as members of the Perak state assembly.

"The resignation letters could be retracted on the grounds that the two have had a change of heart," said Baljit, who is Federal Territory legal bureau chairman.

"There is no law to stop them from revoking whatever they signed before.

"If the two can sign it freely, they can also freely revoke their intention."

He said that despite claims by Perak Speaker V. Sivakumar that he had handed the two resignation letters to the state EC, the move could be reversed by having both assemblymen file an application with the commission to quash the resignation letters.

"At the same time, they can also inform the EC of their intention to change party, if need be."

Senior lawyer Roger Tan said the letters could also be revoked if the two politicians could prove that they had been coerced into signing them.

"I think one of the politicians has stated that he was forced to sign his resignation letter. That statement itself has raised the legality of the letter."

He added that any agreement entered into under duress would be struck out as null and void by the courts.

He added that party-hopping was not unlawful in Malaysia and no document could restrict an individual from doing something lawful.

"Article 10(1)(c) of the Federal Constitution expressly states that all citizens have the right to form associations, that is, to join, not to join or leave any association.

"This means that if the resignation letters were signed to impede politicians from crossing over, then the agreement itself is unconstitutional and cannot be enforced."

According to Tan, in 1992, the then Supreme Court (now Federal Court) had the opportunity to decide in the case of Dewan Undangan Negeri Kelantan v Nordin Salleh 1992 whether an amendment to the Kelantan constitution which prohibits party-hopping was inconsistent with Article 10(1)(c).

Article XXXIA of Part I of the Kelantan constitution pro- vides that if any member of the legislative assembly who is a member of a political party resigns or is expelled from, or for any reason ceases to be a member of such political party, he shall cease to be a member of the legislative assembly and his seat shall become vacant.

The Supreme Court declared that such a law was invalid because the restriction imposed by the Kelantan constitution could not be a restriction imposed under clauses 2(c) and (3) of Article 10 as it was a law passed by a state legislature and not the Federal Parliament.

Tan, who was formerly the Malaysian Bar Council's conveyancing practice committee chairman, said the Perak episode was another reason why Malaysia needed laws against party-hopping.

"If only we had an anti-hopping legislation now, there would not be so much politicking and uncertainty going on with members of political parties sardonically enticing each other to join them.

"If we can have Article 48(6) of the constitution which disqualifies a person who has resigned from the Dewan Rakyat from running again in a general election for five years from the date of his resignation, then I see no reason why we should not have a law requiring any MP who defects to another political party to resign so that a fresh election can be held."