Fed Court must respect decision to uphold separation of powers

(The Edge) PUTRAJAYA: The Federal Court must allow the Perak state legislative assembly to decide on the rights, privileges and decisions with regard to its assemblymen to ensure a clear "separation of powers" between the judiciary and legislature.

Sulaiman Abdullah, the lead counsel for Perak Speaker V Sivakumar, said that the apex court must respect the decision of the speaker to suspend Menteri Besar Datuk Dr Zambry Abdul Kadir and six executive councillors (exco).

"(If the court proceeds with this matter) it would be a big step in Malaysian legal history in that the well-preserved distinction between the legislature and the judiciary is in a sense challenged," Sulaiman said.

The Federal Court was hearing matters relating to the suit brought by Zambry and his six exco members challenging Sivakumar, who on March 2, ordered them to be suspended for 18 months and 12 months respectively for contempt of the assembly.

Zambry and the exco members were alleged to have acted in contempt after they failed to appear before a Committee of Special Privileges headed by Sivakumar. The committee had summoned the seven after a complaint was brought against them for allegedly accepting appointments that were deemed unconstitutional.

Chief Judge of Malaya Datuk Arifin Zakaria posed a hypothetical scenario, asking Sulaiman if the speaker’s actions were up for review and whether it would constitute abuse of power if the speaker had disqualified 30 state assemblymen instead of seven.

Sulaiman said if the speaker were "so stupid (as) to do that", then the speaker would certainly face consequences during the elections.

"Our position is that the speaker’s actions are not exempt from review but certainly exempt from review by the courts," Sulaiman said, adding that the speaker’s decision could only be challenged via a tabled substantive motion.

However, Justice Arifin persisted in asking Sulaiman to "show (him) the power" that allowed Sivakumar to mete out action against assemblymen, to which Sulaiman replied that Article 72 of the Federal Constitution conferred the speaker general powers to regulate the state legislative assembly even when it was not convened.

Attorney-General (AG) Tan Sri Abdul Gani Patail, acting as an intervener in the matter, disagreed and submitted that the Federal Court was the authority to interpret the constitution.

"The power of parliament and state legislative assembly is limited by our written constitution. In Malaysia, no single institution is supreme. Constitution itself is supreme," Abdul Gani said.

He said the Standing Orders of the Perak legislative assembly does not provide for punishment or contempt but merely for offences committed during debate.

Lead counsel for Zambry and the excos, Firoz Hussein Ahmad Jamaluddin, adopted the AG’s submissions.

Before the proceedings proper started yesterday, the five-member bench unanimously dismissed a preliminary objection on procedure raised by Sulaiman on Monday. In dismissing the objection, Court of Appeal President Tan Sri Alauddin Mohd Sheriff ruled that Zambry and the six exco members had employed correct legal procedure in challenging their suspension by Sivakumar.

The other four judges on the panel were Justice Arifin and Federal Court Judges Datuk Seri Augustine Paul, Datuk Zulkefli Ahmad Makinudin and Datuk Nik Hashim Nik Abdul Rahman.

Zambry and the six exco members are seeking court declarations that they are entitled to attend and participate in all state assembly sittings, and to carry out all their functions and duties. They are also seeking pronouncements that Sivakumar’s decision to suspend them is illegal, null and void.

The six exco members in the suit are Zainol Fadzi Paharuddin (Sungai Manik), Datuk Ramly Zahari (Manong), Hamidah Osman (Sungai Rapat), Datuk Saarani Mohamad (Kota Tampan), Mohd Zahir Abdul Khalid (Kamunting) and Dr Mah Hang Soon (Chenderiang).

The Federal Court will hear additional submissions tomorrow.

Zambry was appointed menteri besar by Perak Ruler Sultan Azlan Shah on Feb 6 after the Ruler deemed Zambry commanded the confidence of the House, with support from the 28 Barisan Nasional (BN) assemblymen and three BN-friendly independents in the 59-seat Perak assembly.