KUALA LUMPUR, 25 April 2009: The judiciary should not function as a court of appeal for matters of Parliament, as this would violate core democratic doctrines, a constitutional lawyer said today.
Speaker V Sivakumar’s legal battles in relation to the Perak political crisis is “best proof that parliamentary matters should not be heard by the courts”, said Tommy Thomas at a Bar Council forum entitled Perak Crisis: Constitutional, Legal or Political?.
Styling the conduct of the Federal Court as “terribly unsatisfactory” from the plaintiff’s perspective, Thomas argued that the Sivakumar’s treatment by the court was “a reaffirmation of the doctrine that [the legislature and judiciary] must remain separate.”
Thomas referenced the recent Federal Court rulings against Sivakumar regarding his suspension of Menteri Besar Datuk Dr Zambry Abdul Kadir and his executive council members, and the resignation of three now-independent state assemblypersons.
Tommy Thomas “This is a total disregard for the separation of powers,” Thomas said.
The lawyer also revealed that the Sivakumar had reasons for “substantive complaints”, owing to the fact the plaintiff had been initially denial choice of counsel, and that the cases had been hurried.
He revealed that the Federal Court’s rulings on Sivakumar violated the legal precedent set by five previous cases, such as Fan Yew Teng v Government of Malaysia (1976) and Lim Cho Hock v Speaker, Perak State Legislative Assembly (1979), which essentially ruled that proceedings in parliament or legislative assemblies could not be questioned in any court.
This is due to Article 72 (1) of the Federal Constitution, which says: “The validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any Court.” Equivalents to Article 72 exist in the state constitutions, including Perak.
“Lawyers are very angry when cases to which we can predict the outcome goes the other way,” Thomas, who served as legal counsel for Sivakumar in the suit brought against him by assemblypersons Jamaluddin Mohd Radzi (Behrang), Capt (R) Mohd Osman Jailu (Changkat Jering) and Hee Yit Foong (Jelapang), said.
“Now a dangerous precedent is being set,” Thomas added, citing Puchong parliamentarian Gobind Singh Deo’s decision to take the Dewan Rakyat speaker to court over his one-year suspension.
He called on the Bar Council to appoint constitutional scholars from other Commonwealth nations to study the Federal Court’s judgements in relation to Sivakumar, and certify in their opinion whether the rulings were wrong or right.
The Bar Council forum, which was attended by 100 people, also featured lawyer Datuk Muhammad Shafee Md Abdullah and human rights group Aliran’s exco member Dr Subramaniam Pillay.
Letter dating
Muhammad Shafee, in his presentation, argued that the Perak Pakatan Rakyat (PR) government’s treatment of Jamaluddin, Mohd Osman Jailu, and Hee’s resignation letters was “very criminal”.
“Dating the letters can be considered forgery,” he said.
Muhammad Shafee added that embattled Perak Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin was duty-bound to resign, according Article 16 (6) of the Perak state constitution.
Ambiga However, an observer from the floor, former Bar Council president Datuk Ambiga Sreenavasan argued that the resignation letters, whether they were dated or not, were perfectly legal, as they were signed by consenting adults.
“As an adult, if you sign a blank document, you should know what you’re doing,” Ambiga said, adding that the courts ought to have upheld the letters.
Subramaniam zoomed in on the issue of elected representatives switching sides, and recommended that anti-hopping laws be introduced.
He also called for the repeal of Article 48 of the Federal Constitution, which disqualifies parliamentarians from sitting in Parliament for a period of five years, from the date of their resignations.
Subramaniam stressed that party-hopping was morally wrong, regardless of whether elected representatives crossed over to PR or Barisan Nasional (BN).
“Datuk Seri Anwar Ibrahim and PR have some soul-searching to do,” Subramaniam said, citing the opposition leader’s plan to take over the federal government via cross-overs by 16 Sept 2008. 
HS Too says
Dr Subra’s view that party-hopping was morally wrong could only substained if the other party in the game was willing to adhere to moral principle. DSAI knew too well that the other party had no such high morals to let any opposition survive for long. Perhaps one can argue that DSAI started the party-hoping first, resulting in the Perak fiasco. But look what happened to the PAS State Govt of Terengganu:The other party promptly cut off the 5% petroleum royalty citing the production of oil was offshore. Oil royalty is now restored after PAS lost the state. With over 80% of the total public revenue in the hands of Federal Govt, no state govt could stay for too long. Kelantan is the only exception simply because the general population are not too materialistic.
Paul Warren says
Well, from now every time the speaker of the house, whether at the State Assemblies or Parliament open their mouths on anything at all, and you don’t like it, just haul that person to court. In a sense anarchy rules. Umno continuing to be the “government” in charge will rule to its whims and fancies. Why we need an elected Parliament, I really don’t know.
sting ray says
Dear All,
I salute Mr Tommy Thomas to have suggested that an independent legal opinion of the Perak Constitutional crisis in constitutional legal eagles from the European Union/Commonwealth nations be followed through by the Bar Council soonest.
As for Dr Subramaniam I am of the same view that the party hopping laws be implemented but the courts should not decide but it should be done so by the legislative itself i.e. to be debated and a vote taken.That way the separation of powers will be safe. If there is a deadlock then the obvious is to dissolve the legislative bodies i.e. Parliament or state assemblies without royal assent, the law in this respect too has to be amended without the need to go to the King/Sultans/Governors, but to be debated and decided by the legislature itself. The problem in Perak is very much embedded in this issue.
Forums like this must be open to the public, too. Suggest that a big one be held with/without permit.
God Bless.
yasmin says
Frankly reading the latest judgment by the Malaysian court in the Perak crisis is really sickening. Really hope that the people in the jurisdiction department who still believe to uphold justice in Malaysia kindly fight for it. We will always support you. The Bar Council members keep up the good work.