Saturday, May 30, 2009

Perak Crisis: Is the Speaker 'above the law' or 'immune'?


By Datuk Hafarizam Harun, UMNO Legal Adviser

1. Office of the Speaker – In England

1.1 In Erskine May’s Parliamentary Practice, 23rd Edition, at page 220 the chief characteristics attaching to the office of Speaker in the House of Commons are authority and impartiality.

Further, his authority is symbolized by the Royal Mace borne before him when entering and leaving the chamber at the beginning and end of a sitting and in debate, all speeches are addressed to him and he calls upon Members to speak-a choice which is not open to dispute.

1.2 Confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure.

He takes no part in debate either in the House or in committee and votes only when the voices are equal, and then in accordance with rules which preclude an expression of opinion upon the merits of a question.

Thus, that is why in England, at general election he stands as ‘the Speaker seeking re-election’, since he belongs to no party.

1.3 In the House of Commons, the Speaker’s functions fall into three main categories.

Firstly, the Speaker is the spokesman or representative of the House in its relations with the Crown, the House of Lords and other authorities and persons outside Parliament.

Secondly, he presides over debates of the House of Commons and enforces the observance of all rules for preserving order in its proceedings.

Finally, he has administrative responsibilities, including chairing the House of Commons Commission, advisory panel on allowances.

2. Office of the Speaker – In Perak

2.1 Article 36A (1)(a) of the Perak Constitution fortifies the precedence given to the office of the Speaker when it mentions, that the:

“Legislative Assembly shall from time to time elect- (a) as Speaker, such person as the Assembly may determine who is a member or qualified to be member of the Legislative Assembly…”.
Article 36A (4) of the same provides that:

“the Legislature shall by law provide for the remuneration of the Speaker and the remuneration so provided shall be charged on the Consolidated Fund”.
2.2. In the Standing Order of the State Legislative Assembly of Perak Darul Ridzuan, the provisions that make reference to Speaker are Standing Orders (‘S.Os’) 1, 2, 3, 4, 11, 12, 13, 16, 17, 18, 19, 22, 23, 24, 25, 27, 28, 31, 35, 36, 43, 44, 45, 46, 48, 67, 68, 71, 72, 75, 80, 83, 84,87, 88,89 and 90.

2.3. From the above, one can conclude the prominence given to the office of Speaker with such vast powers and privileges.

The oft-cited S.O 89 by the Opposition (including YB Sivakumar on that fateful day of 7th May 2009) reads that:

“the decision of Mr. Speaker upon nay point of interpretation of any these Standing Orders, or upon any matter of practice, shall subject to a substantive motion moved for that purpose, be final, and Mr Speaker may from time to time issues rulings thereon”.
On plain reading of S.O 89, it would appear that S.O 89 has been given ‘larger-than-life’ effects to that extent it has been subject to abuse. If one look at S.O 89 it relates only to a “point of interpretation of any of these Standing Orders”.

The Speaker’s decision in the present case is not merely one of interpretation of the Standing Orders, but of the relationship of the Standing Orders to the Constitution and so this exclusion is not applicable.

3. Acts of the Ex-Speaker YB Sivakumar brought disrepute to the august Dewan (State Legislative Assembly)

3.1 YB Sivakumar’s acts in suspending YAB Dato’ Seri Dr Zambry fro 18 months and his 6 EXCOs for 12 months was in total violation of the State Constitution and ultra vires S.O 72.

It was a decision not taken by the Legislative Assembly which would have to be determined, in accordance with S.O 72, by majority of votes of the Members present and voting.

3.2 I paused to urge my readers to compare the distinction between the former’s suspensions vis-à-vis YB Gobind Singh Deo, MP for Puchong by Dewan Rakyat last month.

Thus, what my team had obtained in mid-April at the Federal Court (Declarations that the suspension was ultra vires and in violation of the Perak State Constitution) is nothing but the manifestation of a true proceedings in the Legislative Assembly be it State of Parliament.

Otherwise, I’m sure my learned friends acting for the opposition would have, at the spur of that moment, filed an action in Court challenging the MP for Puchong’s suspension.

Thus, the convergence between my team’s stand and the opposition is that anything that happens within the ‘four corners of the House’ is immune/privileged under Article 72 of the Federal Constitution.

3.3 However, the limits of parliamentary privilege must be recognised. In its Frist Report (1999), the Joint Committee on Parliamentary Privilege of the Westminster Parliament (HL 43-1/HC 214-I) (available here) provided the following limitations on the definition of privilege:

“The meaning of “proceedings in Parliament” and “place out of parliament” [in Article 9 of the Bills of Rights] should be clarified and defined. Article 9 protects activities that are recognisably part of the formal collegiate activities of Parliament.

The right of each House to administer its internal affairs within its precincts should be confined to activities directly and closely related to proceedings in Parliament.”
For those who require further readings, please refer to the cases of Stockdale v Hansard (1839) 112 ER 120; Pepper v Hart [1993] AC 593; and Prebble v Television New Zealand Ltd [1995] 1 AC 321.

3.4 I have had the occasion to issue my official statement on April 29, 2009 on the effects of the Federal Court’s declaration nullifying the suspension of YAB Dato’ Seri Dr Zambry and his 6 EXCOs and not being repetitious, I state my reasons why the Speaker’s decision is unconstitutional and ultra vires:

(a) The Speaker’s decision has the effect of circumventing and nullifying the proper allocation of accountability and functions prescribed in the Perak Constitution i.e. effective exercise of the Sultan’s power to appoint the Mentri Besar set out in Article 16(1) and (2) of the Perak Constitution.

I paused here to say why didn’t YB Dato’ Seri Ir Nizar sue HRH the Sultan of Perak since it was his HRH the Sultan of Perak that appointed YAB Dato’ Seri Zambry!

(b) The Speaker’s decision corrupts the overriding principle of democratic accountability that HRH the Sultan of Perak should command the confidence of a majority of the properly elected members of the Assembly.

Such suspension is nothing but entrenching BN’s working majority in defiance of the will of the full Assembly. I would simply say, it’s a fait accompli!

(c) The Speaker’s decision (which was the decision of the Speaker alone) is not, and cannot be, the decision of the Committee on Privileges since S.O 75(3) makes clear that the quorum for select committee (of which the Privileges Committee is one) shall be three members.

(d) The Speaker’s decision exceeded the powers of even a properly constituted Committee on Privileges. Their powers are spelt out in S.O 72 (2) and 72 (3), wherein the function of the Committee after due deliberation is to report on an alleged breach of privilege to the Assembly.

(e) Thus, the Speaker’s decision was plainly arrived at in a procedurally improper manner (cf., JB Jeyaretnam v Attorney General of Singapore [1987] LNS 96 in which Chua J accepted there, in Singapore, that the Committee of Privileges had acted in accordance with the principles of natural justice).

I have laid down the examples of the abusive acts by the Ex-Speaker (YB Sivakumar). I for myself definitely concluded that he has brought to disrepute the office of the Speaker. Now, why the hues and cries that he was wrongfully removed. One must be responsible for one’s acts.
Extracted and edited from blog Penasihat Undang-Undang UMNO

8 comments:

Anonymous said...

Voice,

Now you are Talking LAW...

Its Not About Law ....

Its about not wanting to go back to the People...

That's why the saying KISS (Keep it Simple Stupid). And the Simplest Solution is go back to the People for a New Mandate.

Now the Cloudy Mind has taken both sides....
What's the Cloudy Mind?
Any kind of thing that you want to Ignore, did not want to encourage, or are ashamed about is put in this bank of confusion - The Cloudy Mind. The way to Break this Bank of Confusion, to Break Open the Container is to call for a State Elections and Let the People Choose Who should be in Power...
As long as this Bank of Confusion Exists, The Cloudy Mind Takes Over and Chaos Prevails....


Joe Black

A Voice said...

Joe Black

You said: Now you are Talking LAW...

Answer: On the perak issue, I have always talk of law. In fact, I want the bloody thing to drag till all court issues comes to finality.

I hate to keep repeating whats already written. Read my previous blog postings.

Remember you guys screw up. Suggest you stop your anarchistic-hidden rhetorics to constant blame and make unjustified accusations on others and various instituitiosn but yourself.

If you can argue with what is presented and clear your brain from the constant state of confusion and cloudedness, remember Anwar's ... ASS (Anarchy Sucks, Stupid).

Goh Wei Liang said...

A Voice, I have something in mind. I remember reading DS Najib's recent comments on the Constitutional crisis in Perak.

It seems that Lord Lester shared the same opinion as BN and that the Sultan did not err in HRH's decision on the MB case.

As we all know, Pakatan has always been bugging us with their "Constitutional lawyers" such as the infamous Tommy Thomas who contradicts himself in 916 and the Perak case.

JMD has the story here.

http://jebatmustdie.wordpress.com/2009/03/03/v-sivakumars-constitutional-expert/

Also, the Pakatan folks love to brag about Judge NH Chan's opinion on the Perak case which sided the Opposition in terms of legislation.

I guess if we present Lord Lester's comments, it will be great because he is a member of the Queen's Counsel and he is definitely a better expert than any other retired judge or the self contradicting Tommy Thomas.

Anonymous said...

Voice,

If anyone gets too near the wall that ego has built, the ego feels insecure; it thinks its being attacked and then thinks that the only way to defend itself is to ward off the threat by showing an aggressive attitude.

When one experiences a threat, whether literal opponents, illnesses or undesirable experiences, the only way to develop a balanced state of being is not to try to get rid of those things...Understand them and make use of them, for with the understanding you will develop egolessness and hence will lead you to the concept of non Violence....

Try it...


Joe Black

two-face said...
This comment has been removed by a blog administrator.
A Voice said...

Joe Black

Appreciate the reminder. We say stupid things in our moment of anger.

I have always look at the Perak issue of the opportunity to resolves a lot of long standing constitutional issues.

When terms like people power is spoken, it serves to agitate the public to act in an unlawful fashion to "revolt". For a country with law and order and administrative precedents, we have means and ways of seeking resolution.

Nizar opted to use the court to refute the Sultan's decision. Remember, he initiated it when his attempt to remove ILLEGALLY three elected state assemblemen/women from office. And, Nizar LIED to the Sultan for not telling he lost majority when meeting HRH to dissolve the State Assembly.

Hope you are not clouded by your rhetorics. Who started all this? It is not BN ADUN who left PR for Independent and supported BN? BN=PR=28.

You are smart.

Calling the dissolution of the SA when the people are in their moment of anger and confusion from opposition rhetorics will not be good, at least for BN.

Perhaps when common sense and calmer head prevail, we could dissolve the state assembly.

In the meanwhile, let Zambry clear up the mess Nizar-Ngeh-Nga made of the state in 11 months and explain to the people of what happened in that 11 months.

Don't you think that is better?

I would suggest your representative stop their antics and do their work. Lost cause. In 6 months, people will get tired. Unless you get party hoppers in Parliament or the 3 hop back to PR like Nasaruddin return to BN. :)

Two-Face

Sorry have to remove your comment. Watch those four-lettered ones.

Anonymous said...

Hey Voice

Another election means more expenses incurred and time lost for REAL serious governing to take place

ignore their attempts to grab and reclaim lost power

no point providing solid and rational justifications

they are simply NOT listening

they chose to see and hear what suits them - gullible lot

Wenger J Khairy said...

JPA Goh,
Did we consult the QC in the first place? Zambry says no , PM says yes. Can you work out the difference.

(Please think carefully as the fate of all Non-Malay scholarship aspirants rests on your answer)

My Say