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Federal Court: Zambry used correct procedure

PUTRAJAYA, 14 April 2009: The Federal Court ruled today that Perak Menteri Besar Datuk Dr Zambry Abdul Kadir and his six state executive councillors had used the right procedure to challenge their suspension from attending the state legislative assembly sittings by speaker V Sivakumar.

The five-member panel led by Court of Appeal President Tan Sri Alauddin Mohd Sheriff also unanimously held the apex court could hear the constitutional issue on the suspension order.

They dismissed the preliminary objection by Sivakumar’s counsel who argued that the right procedure for Zamby and six others to take up the case was by way of judicial review.

The other judges were Chief Judge of Malaya Datuk Arifin Zakaria and Datuk Nik Hashim Nik Ab Rahman, Datuk S Augustine Paul and Datuk Zulkefli Ahmad Makinuddin.

Zambry and the six executive councillors — Zainol Fadzi Paharuddin, Datuk Ramly Zahari, Hamidah Osman, Datuk Saarani Mohamad, Mohd Zahir Abdul Khalid and Dr Mah Hang Soon — brought the case to the Federal Court pursuant to Article 44 of the Perak State Constitution to seek a declaration that the suspension meted upon them by Sivakumar was null and void.

They initially filed an originating summons at the Ipoh High Court on 2 March, claiming that their suspension (18 months for Zambry and 12 months for the executive councillors) by Sivakumar contravened the state’s constitution.

Earlier, lawyer Sulaiman Abdullah who acted for Sivakumar submitted that the Federal Court had no jurisdiction to hear the merits of the case on the ground the speaker’s decision was non-justiciable.

Under Article 72 of the Perak State Constitution, the validity of any proceedings in the state legislative assembly shall not be questioned in any court, he said.

Citing previous cases, he argued that it was very clear that the decisions made by or in the Federal Parliament or legislative assemblies in the states were immune from judicial challenge.

He said the meaning of “proceedings” in Parliament or state assembly was extremely wide, and anything connected to the affairs of the House was covered by privilege.

Attorney-General Tan Sri Abdul Gani Patail who acted as an intervenor in the proceedings, submitted that Article 44 meant that the assembly was not given the power to regulate its own procedure and make the punishment.

He said Zambry’s appointment as Menteri Besar was non-justiciable as the state’s constitution clearly provides for the powers and discretion of the Sultan of Perak.

Sivakumar did not have the power to suspend Zambry and the six executive councillors while the functions of the privilege committee were only to carry out the investigation and pass the motion to the House, he said.

He added that the speaker’s action indirectly was an attempt to defeat the exercise by the Sultan of Perak in appointing Zambry as Menteri Besar.

He also said that the assembly sitting held under a tree on 3 March convened by Sivakumar and the other members was invalid because they failed to obtain a proclamation of the Sultan summoning the assembly.

“Only the Sultan can summon a sitting of the assembly and this is done by the issuance of a proclamation summoning the assembly. Thereafter, such proclamation must be gazetted,” he said.

The submissions on the merits of the application by Zambry and six others will continue on 16 April. &mash; Bernama

 

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