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