Kota Siputeh: Testing the courts

EC chairperson Tan Sri Abdul
Aziz Mohd Yusof

THE nationwide constitutional law tutorial continues with the latest Kota Siputeh case. The court has had to intervene once again to arbitrate between the speaker of a legislative assembly and the Election Commission (EC). This time, the 16 Nov 2009 High Court decision ruled that the EC was wrong in not declaring a casual vacancy for the Kota Siputeh seat.

Within an environment of a fledgling two-party system, it appears that politicians are still testing the constitution’s boundaries. Hence, the numerous landmark decisions since the March 2008 general election.

So, what is the significance of the Kota Siputeh decision? Is it contrary to the previous decisions concerning the Perak Speaker and the Dewan Rakyat Speaker?

The various court decisions and actions of legislative assembly speakers thus far are summarised below:

Parties	The decision	The court’s reasoning
Perak Speaker vs EC — Declaration of seat vacancies in Perak June 2009	Vacancies in state seats are declared by the EC and not the Speaker (in Perak, at least).	The Federal Court ruled that Perak speaker V Sivakumar’s declaration that the Jelapang, Behrang and Changkat Jering seats were vacant was void. Sivakumar said the three assemblypersons had resigned but the EC refused to declare casual vacancies. The Federal Court said it was the EC that decided on vacancies, not the Speaker.
Kedah Speaker vs EC — Declaration of Kota Siputeh seat vacancy due to absenteeism Nov 2009	The EC’s refusal to declare a vacancy can be challenged and overruled.	The High Court called the EC “irrational” in refusing to declare the seat vacant. The Kedah constitution states that an assemblyperson’s seat automatically becomes vacant if he or she misses two consecutive meetings without the Speaker’s leave. The High Court judge said these conditions had been satisfied and the EC was therefore wrong in refusing to declare a vacancy.
Gobind Singh Deo v Dewan Rakyat Speaker  — Gobind’s 12-month suspension from Parliament Oct 2009	The court cannot question the actions of the Speaker and legislative assembly during proceedings.	The High Court said it could not interfere with the Dewan Rakyat’s motion to suspend DAP Member of Parliament Gobind for 12 months.   The court however restored Gobind’s parliamentary allowances as these were conferred by the constitution and could not be removed by the Speaker or the assembly.
Zambry vs Perak Speaker  — Zambry’s suspension by Sivakumar April 2009	The court can question the actions of the Speaker if he or she doesn’t have the power to carry out those actions.	The Federal Court declared Perak Speaker Sivakumar’s suspension of Datuk Dr Zambry Abdul Kadir and six others void. It said Sivakumar did not have the express power to suspend them under the Perak constitution.   The decision appeared to go against the constitutional provision that the court cannot interfere with legislative assembly proceedings. The court said it could interfere because the Speaker’s actions were outside his power granted by the constitution.

What we see is that the Kota Siputeh case is different from the Perak Speaker vs EC case because in the Kedah case, the assemblyperson was automatically disqualified by the state constitution. In the Perak case, it required the resignations to be accepted before the vacancies could be declared. And because the EC did not accept the validity of the resignations, the seats were not declared as vacant.

Zambry (left) and NizarHowever, there does seem to be a contradiction between the Gobind Singh vs Dewan Rakyat Speaker case and the Zambry vs Perak Speaker case. But the Federal Court tries to distinguish the difference by saying the Speaker can be challenged in court if he or she acts outside the Speaker’s powers. This decision, however, does overturn the conventional wisdom underlining the separation of powers in that the judiciary should not interfere in the legislature.

More cases?

The Kota Siputeh judgment will probably not be the last court case we will see between politicians, the EC and the speakers of the various legislative assemblies.

The new political environment post-8 March has tested the federal and state constitutions as never before. When Barisan Nasional (BN) controlled most of Parliament as well as the state assemblies, disputes between speakers and assemblypersons were few and far between.

However, with unprecedented numbers of opposition members in Parliament and four (or five) Pakatan Rakyat-controlled states, parties increasingly need to consult the constitution for guidance on what can or cannot be done. In the event of a dispute, it is then up to the courts to interpret the constitution and arbitrate between the parties.

Independence crucial

Kuala Lumpur court complex on Jalan Duta

It is therefore more crucial than ever for the courts to be independent and impartial. There can be no pro-government or pro-opposition decisions, only pro-constitution ones. Decisions must be made according to what is fair, in accordance with the constitution, regardless of political patronage or personal affiliations. After all, those currently in power could end up being the opposition tomorrow and would also be bound by the precedents and judgments made today.

However, even before the ink dried on the Kota Siputeh judgment, comments were already being made that BN would surely win their appeal to the higher courts. Strong criticisms of bias have also been directed at the EC for appearing to be bending over backwards to avoid declaring the vacancy in the first place. It appears that the EC, at least, still has a long way to go before it will be perceived as a truly independent commission.

As for the courts, whether or not the High Court’s judgment in Kota Siputeh is eventually upheld, it will take a long series of fair and sound decisions before it will regain public trust and confidence. With the scandals and blatant government interference over the years, the judiciary will have to work doubly hard to convince litigants and the public of its impartiality. Having a Chief Justice who has to recuse himself from cases involving BN due to his former party ties will certainly not contribute positively to an already uphill task.  

But for now, Malaysians will have to wait and see how the Court of Appeal decides BN’s appeal on the Kota Siputeh decision.