Fed Court ruled that state speaker has no power to suspend assemblymen

PUTRAJAYA, – The Federal Court has unanimously ruled it has the powers to decide on whether Perak Speaker V Sivakumar’s suspension of the mentri besar and his executive council from the legislature was valid.
Court of Appeals president Tan Sri Alauddin Mohd Shariff, one of the five-member panel, said the preliminary objection, based on a procedural technicality raised by the speaker’s counsel Sulaiman Abdullah, had been rejected.

The case has huge ramifications for the constitutional crisis which has engulfed Perak. The suspension of mentri besar Datuk Zambry Abd Kadir and his six executive councillors would give Pakatan Rakyat a majority in the state assembly and the Barisan Nasional (BN) government could potentially be ousted when the legislature sits again.

Today’s decision by the Federal Court will also be controversial because it appears to affect the legal principle of separation of powers and also constitutional provisions which suggests the legislature governs its own proceedings.

Sulaiman warned the court that this was a “significant step in Malaysian legal history in that the hitherto well-preserved distinction between the legislative and judiciary is being challenged.”

This formed the main body of Sulaiman’s submission today when hearing commenced, as he argued that the court cannot enter into the question of whether the speaker had erred in his decision.

“Similar to matters pertaining to the Syariah court, this court has no jurisdiction. It is up to the assembly to decide on its rights and privileges.”

He explained that the speaker’s actions were not exempt from review but “exempt from review by the courts.”

“It is open to review by a substantive motion in the house,” he said.

Chief Judge of Malaya Datuk Arifin Zakaria then proposed a situation where the speaker has suspended “30 members” of the assembly, implying an entire opposition bench, and there would be no one to move this motion. “So nothing can be done?”

Sulaiman drew a parallel with that of judges of an apex court, that their decisions, no matter how out of order, also could not be questioned.

“But during an election, then the speaker and his party will receive their come-uppance,” he said.

He also added that the mentri besar could also seek dissolution of the assembly if the speaker had acted completely out of order.

However, Arifin still demanded that Sulaiman “show me the power” by which the speaker could suspend members for contempt. Sulaiman cited Standing Orders 89 and 90 of the Perak assembly which he claimed gives the speaker the power to make final decisions on matters of the assembly, subject to a substantive motion being raised.

Intervening after Sulaiman’s submission, Attorney-General Tan Sri Gani Patail argued that, according to the constitution, the courts are made the ultimate interpreters of the constitution and, as such, have a function to perform in this case.

“This does not mean that the judiciary is supreme over the legislature but that the constitution is supreme over both,” he said.

He further argued that with specific regards to suspensions for contempt, other assemblies such as the Parliaments of Malaysia and Singapore had specific provisions for such actions whereas the Perak assembly did not.

He said that while Parliament had legislated laws which gave it powers to punish acts of contempt, the “legislative enactment for Perak provided certain powers but not punishment for contempt” and this should be interpreted as a intentional move to limit the powers of the assembly.

Gani also said that the charge of contempt could not stand as charging Zambry and his six executive councillors for accepting their appointments from the Sultan was in contempt of the ruler’s constitutional prerogatives.

“Accepting the appointments are not legislative privileges and therefore the suspensions are ultra vires and have no effect whatsoever,” Gani claimed.

He also said that the privileges committee, which is chaired by the speaker, had no powers to mete out punishment but is only an investigative body as stated in the assembly’s standing orders.

As such, it then tried to bring its recommendations to the assembly, said Gani, referring to the “tree assembly” on March 3, which was held under a raintree as the PR assemblymen were not allowed into the assembly hall by security forces.

Gani said that the assembly was invalid as the Sultan did not consent to the sitting. Sulaiman had earlier argued that no consent was necessary as the last sitting was postponed until a further date and a fresh proclamation was only needed from the Sultan to call a new session, which is made up of any number of meetings, after a sitting is discontinued, which signals the end of a session.

However, Gani claimed that a new summoning by the Sultan was required at the beginning of each meeting, which is any number of sittings that terminates if the assembly is adjourned for more than 14 days.

He provided evidence showing that even under PR’s one-year rule, the Sultan’s consent was still given for each of the three meetings.

Later, Perak DAP chief Datuk Ngeh Koo Ham, who was senior executive councillor in the PR government, told The Malaysian Insider that this was done at the advice of the assembly secretary, following the convention of Barisan Nasional but that constitutionally, the Sultan’s proclamation was only required at the start of a new session, and not each meeting.

The legal team for the executive council has decided to adopt the AG’s submissions and the apex court will hear Sulaiman’s reply on Thursday before making its final ruling on the matter. (TMI)