Critique of the Court of Appeal Decision on V. Sivakumar's Removal as Speaker of the Perak State Assembly

The Court of Appeal in its eagerness to cloth the action with the mantle of Article 72 seems to have worked backwards in arriving at this conclusion by simply taking the view that the end result justified the means as long as the power to remove the Speaker exists and can be exercised by the SLA even in an arbitrary fashion in defiance of convention, custom and precedent.

By Gerard Lourdesamy

From my reading of the judgment of the Court of Appeal, the learned Judge Abdul Malik Ishak seems to have overlooked the crucial question namely when and in what circumstances that the State Legislative Assembly (SLA) can exercise its powers to remove the incumbent Speaker and replace him with some other person.

There is no denying that the SLA has the power to remove the Speaker and replace him with some other person who has the support of the majority of the members of the House. However, what Sivakumar was contending is that (a) he had as the lawful and incumbent Speaker on the day in question rejected the emergency motion tabled by the Menteri Besar Zambry Abd. Kadir at the commencement of the sitting of the House to remove him as the Speaker (just as he had rejected the motion the previous day in chambers when it was submitted to him by the Menteri Besar); and (b) in any event no motion can be tabled, debated and voted upon by the House prior to the opening of the session of the SLA by the Regent of Perak representing his father, the Sultan.

From a reading of the Standing Orders of the SLA and from numerous treaties on parliamentary practice and procedure notably the bible on such matters, by Erskine May, no ordinary business of the House can be commenced prior to the opening of the session by the Sovereign which is done by the presence of the Sovereign in person or through representatives in the chamber of the House to read the gracious speech, which is written by the government outlining its legislative programme for the coming session of parliament or the legislature.

The significance of this crucial fact is because the previous session of the SLA had been prorogued by the Sultan on the advise of the then Menteri Besar Nizar Jamaludin and before the new session of the SLA can commence there must be a proclamation from the Sultan to convene the session, which proclamation is caused to be published in the State Government Gazette. Together with the proclamation, a summons is also issued to all members of the SLA commanding their presence to attend upon the Sovereign at the opening of the new session of the SLA.

Given the constitutional significance of the opening of the SLA that is overlaid by convention and by the pomp and ceremony of a great state occasion, which has its origins from the Tudor times in England, it would unconstitutional for the SLA to conduct any business in the chamber of the House prior to the opening of the session by the Sovereign. And in fact it would be a great disrespect to the Sultan if such business was transacted by the House while he had yet to open the session and was already present in person in the royal chamber awaiting the Speaker and his delegation to invite him to enter the chamber of the House to deliver the gracious speech from the Throne. As we are a country that is rich in culture and traditions, and the Malay Rulers being the epitome of constitutional government, Malay history and customs, it would be considered as a grave offence bordering on treachery for members of the SLA to conduct their business in the House before the Sultan could open the new session.

The Court of Appeal in arriving at its judgment, failed to consider the arbitrary exercise of power by the SLA in removing the Speaker in the circumstances that I have referred to above. The primary duty of the Court while recognizing the existence of such powers is to ensure that such powers are exercised lawfully and constitutionally by the various curial entities under the Constitution, in this case the legislature. Any arbitrary exercise of powers even by the legislature will render such acts as ultra-vires the Constitution and the Standing Orders of the House and of no effect. It is my view that the Court still retains to jurisdiction even under Article 72 of the Federal Constitution to examine the course of conduct that is the substance of the complaint to determine if the power not only exists but if it does, also to determine whether the power was correctly exercised within the confines of the Constitution and the Standing Orders of the SLA.

The Court of Appeal in taking a restrictive approach to Article 72 of the Federal Constitution has failed in its constitutional duty to ensure that the Court remains the final arbiter where issues of constitutional significance or dispute is to be determined in accordance with the interpretation to be accorded to the relevant provisions of the State Constitution and the Standing Orders of the SLA, as in this case. Article 72 does not have the effect of ousting the jurisdiction of the Court whenever one party alleges that the action or decision taken is immunized from judicial scrutiny. The crucial words in Article 72 is whether the action or decision complained about is a matter that was decided or determined in the “course of proceedings” in the House. In Sivakumar’s case, it would seem that the power to remove the Speaker was exercised unconstitutionally by the SLA in a highly charged atmosphere where convention and precedent was disregarded.

The Court of Appeal in its eagerness to cloth the action with the mantle of Article 72 seems to have worked backwards in arriving at this conclusion by simply taking the view that the end result justified the means as long as the power to remove the Speaker exists and can be exercised by the SLA even in an arbitrary fashion in defiance of convention, custom and precedent.

As I have argued Article 72 cannot be interpreted in such a manner as to ouster the jurisdiction of the Court altogether. Otherwise arbitrary and oppressive actions or decisions of the legislature will go unchallenged and unchecked by the courts. This in turn will weaken the system of constitutional government in the country and eventually render the fundamental structure of the constitution altered and illusory and weaken the institutions provided for under the Constitution, which is the supreme law of the land. Such a situation can lead to instability and anarchy when the people perceive that there has been an erosion of parliamentary democracy and fundamental liberties.

The Court of Appeal in its judgment has also used intemperate language to place blame for the fracas that occurred in the chambers of the House entirely on Sivakumar without considering the facts that I have alluded to earlier. The Appellate Judges seem to have overlooked the intransigent behaviour of the present Menteri Besar Zambry Abd. Kadir who refused to accept the ruling of the Speaker on the tabling of the emergency motion, repeatedly refused to sit down when ordered to by the Speaker and then proceeded to table the motion for debate without the Speaker’s consent. And neither did the Court consider the actions of the sergeant-at-arms, who is an officer of the House and subordinate to the Speaker, who pointedly in a display of false bravado disobeyed the orders and instructions of the Speaker and facilitated the Speaker’s removal. Therefore, is it fair to only apportion blame on Sivakumar? The subsequent actions by Ganesan purportedly acting as the Speaker, the presence of pain-clothes police officers in the chamber of the House and other unauthorized persons with weapons and the acts of thuggery and brutality by these persons towards Sivakumar seems to have been lost on these august judges of the Court of Appeal.

The reference to the sitting of the House under the famous “Democracy Tree” in Ipoh seems to have irked the sensibilities of the Court of Appeal but the court in dismissing this sitting as a farce seems to have failed to distinguish between a sitting and a session of the House. A sitting of the House means the day-to-day meeting of the House in the course of a session. It does not require any proclamation or gazette notification because it is merely a sitting that is convened and adjourned by the Speaker after notice is given to the members. Only a session of the House either after it has been dissolved or prorogued
by the Sultan requires a proclamation from the Sovereign and notification in the gazette. A session is usually a meeting of the House for the duration of a year (but the House does not sit every day during a session) and it is convened between the dissolution or prorogation of one session and the opening of the next session. The opening, prorogation and dissolution of the House require the consent of the Sovereign, the issuance of a proclamation and the publication of the proclamation in the gazette.

From a cursory view of the facts and issues in this case, it is hardly one that can be summarily disposed off by the court under Order 18 Rule 19 of the Rules of the High Court 1980. “The power to summarily dismiss a case is one that must be exercised with utmost caution and circumspection by judges”, per Lord Diplock in the Tractors (M) Sdn. Bhd. case. The Court of Appeal in its judgment had pointedly failed to appreciate the facts and the issues. The events on that terrible day in the SLA is subject to much dispute and interpretation but these matters can only be resolved at a full trial with the presence of witnesses and not in a summary fashion as done by the High Court and the Court of Appeal.

It is regrettable that certain “executive minded” judges in the Court of Appeal in their quest for high judicial office and recognition have produced a judgment that is neither fair nor impartial in its conclusions and findings. Equally, sad is the fact and emerging trend for judges in constitutional cases before the Court of Appeal and the Federal Court to even disregard their own consciences and not enter a vigorous dissent in such cases simply because they do not wish to offend the presiding judge who may be senior to them on the bench. Save and except for one brave judge in the Court of Appeal who dissents on matters of substance, the rest are mere followers. To dissent is not a sign of weakness or inability to persuade fellow bother or sister judges, but rather a manifestation of judicial independence, integrity and competence in the face of insidious
attempts to undermine and destroy judicial freedom in this country to serve the interests of the all powerful executive, which sadly many judges seem willing to tolerate because of self-interests and fear of reprisals. But it is brave judge that is remembered and respected by the people as they are the one’s who are the final bastion of defence for the weak, poor, oppressed and helpless in the face of adversity, fear and injustice. As Lord Denning rightly pointed out “let justice be done though the heavens may fall”.

Gerard Lourdesamy is a lawyer in practice for the last 17 years with an interest in constitutional issues.