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.

ROGER TAN,
Malaysian Bar Evaluation Team head,
Kuala Lumpur.

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.

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.