Monday, February 2, 2009
KUALA LUMPUR, Feb 2 — Perak’s problem over political defections is stirring up a huge debate on constitutional law in Malaysia among its experts.
Several lawyers and election veterans have expressed differing opinions on whether or not Perak State Legislative Assembly Speaker V Sivakumar, has the right to force by-elections in Behrang and Changkat Jering, the two state seats said to have been vacated by their incumbent assemblymen while locked in a public dispute that puts the state government at risk of collapse.
The argument hangs on the validity of the undated and pre-signed letters of resignation from the state’s two PKR assemblymen.
Jamaluddin Mat Radzi and Osman Jailu, the state representatives for Behrang and Changkat Jering respectively, claim their letters are invalid because they were signed under duress.
Speaker Sivakumar, however, accepted the letters as genuine expressions of their intent to quit their state seats, creating vacancies which must be filled within the next 60 days in by-elections.
Despite the duo’s protests, Sivakumar submitted the disputed letters to the Election Commission (EC) this morning.
EC chairman Tan Sri Aziz Yusof has acknowledged receipt and said he will hold a meeting tomorrow with his officers in Putrajaya to discuss the next step.
Aziz’s predecessor Tan Sri Rashid Rahman, who has eight years’ experience as chief, told The Malaysian Insider the EC has no choice but to call for by-elections.
Rashid explained that the rule of law requires the election body to carry out its duty and prepare for elections once the Speaker has formalised his request.
A professor of law at the International Islamic University here, Abdul Aziz Bari, agrees with Rashid.
Abdul Aziz explained that the Federal Constitution is very clear on the powers of the Speaker in matters related to the law-making houses in Parliament and its state equivalent, the State Legislative Assembly.
Regardless of disputes, the Speaker is the final authority in deciding whether there is a vacancy or not and the election body can and must take the Speaker’s word at its “face value” and call for by-elections soon.
“As such, matters pertaining to suspension of a member and the likes, the final say rests with the Speaker. He is the one who runs the House and his ruling is final,” Abdul Aziz told The Malaysian Insider.
“The EC has got to take the Speaker’s notification as a matter of the law. They have no choice. That is what the law is all about,” he added.
He said the unhappy parties may challenge the Speaker’s decision in court if they wish but it would be hard to prove they were forced to sign their resignation.
Giving an example of an incidence in the mid-1980s involving a challenge to the Perak Speaker ordering out a DAP assemblyman for refusing to pledge his oath, Abdul noted that the court has refused to entertain the challenge, even when the Speaker’s decisions were deemed to be “absurd”.
“The court has no power as it cannot interfere with it. This is in line with the position and dignity of the House as the Legislature,” Abdul said.
He added that apart from the legal aspect, Jamaluddin and Osman have behaved unreasonably, raising both legal and moral questions underlining the legal and political position of the legislature.
“Their actions are simply devoid of any moral grounds. How could they have let the last five days pass without any news on their whereabouts?” he asked.
“Only last night, they suddenly emerged, denying they had resigned,” he said.
Lawyer Malik Imtiaz Sarwar argues that the Perak case is not as cut-and-dry as some constitutional experts have presented it.
Malik explained that there were too many variables at work and they must be taken collectively, which could change the rules of the game in Perak.
He noted that public policy and the Federal Constitution provides for exclusions to the rule should the resignations be found to have been “made under duress” as Jamaluddin and Osman both claim.
Even if there was an earlier agreement between the duo and their party leaders, there were questions over the terms and conditions of when the party is allowed to produce the undated but signed resignation letters.
“If the resignations are involuntary, they can arguably annul the effect of their resignations,” Malik told The Malaysian Insider.
He noted a 1983 Supreme Court ruling in a similar case involving the Sarawak United People’s Party (SUPP) after an elected representative challenged a previous agreement to pay compensation to the party after hopping to another.
In the judgment, the Supreme Court noted that the case involved the Speaker, and would require he be sued in court for the full course of justice to be served.
But even if the PKR assemblymen chose to challenge the Speaker in court, they would face great obstacles that could prove detrimental to them in the long run, Malik observed.
“One is their conduct over the past few days. They have been in hiding and only came out when the Speaker announced the vacancies in their state seats.
“Two is the decision of the Speaker. As a general principle, the Speaker’s decision is not open to challenge in court. Therefore, the value of that challenge is questionable,” Malik said.
The Standing Orders in the Perak State Assembly, like those governing Parliament, state that the Speaker’s decisions cannot be challenged in court, senior state exco Datuk Ngeh Hoo Kam told The Malaysian Insider.
“The simplest route for everyone right now is to have them play by the rules and honour the ruling of the Speaker and get on with the by-elections,” Malik added.
Yet, talk of snap elections has been rife, fuelled by a raging mix of speculations over party hoppers; the razor thin majority between the ruling Pakatan Rakyat (PR) coalition and their rival Barisan Nasional (BN) counterpart; and compounded by Menteri Besar Nizar Jamaluddin’s reluctance to disclose to reporters what he spoke about this morning at an audience with Perak Ruler Sultan Azlan Shah.
Malik says the public should not to jump the gun.
While the Ruler has the final say, “he cannot intercede unless there is a request from Nizar to dissolve the state assembly or, the assembly collectively votes no-confidence in Nizar,” he explained.
IPOH, Feb 2 — The battle for the Perak government continues today with the ruling Pakatan Rakyat putting pressure on two errant PKR executive councillors to make their stand clear even as it informs the Election Commission that the duo have resigned their state seats.
The two, Jamaluddin Mat Radzi and Osman Jailu, were supposed to meet the press in Kuala Lumpur today to make their stand, but have again gone missing after failing to show up.
Jamaluddin however was evasive about his status apart from saying he has not resigned his state seat. Asked if was going independent, he told The Malaysian Insider by phone,"Not yet!".
A representative turned up instead and issued a short press release to reporters. Jamaluddin claimed he was in Pahang undergoing treatment for a bad back.
After declaring yesterday that Jamaluddin Mat Radzi and Osman Jailu have resigned as Behrang and Changkat Jering assemblymen respectively, Perak state speaker V Sivakumar went ahead this morning to inform the state EC of the vacancies.
“I will now inform the EC headquarters and further decisions will be made from Putrajaya,” Perak EC chief Ahmad Adli Abdullah told The Malaysian Insider, confirming that Sivakumar visited him at 8am to inform him of the vacancies.
Although it is a public holiday in the Federal Territory today, a decision to hold a by-election could be made as soon as tomorrow.
The commission has confirmed it would be holding a meeting at 11am tomorrow to discuss the matter.
But the PKR men have denied resigning, saying the letters were written under duress after their electoral victory in March 2008.
Perak DAP head Ngeh Koo Ham has also added to the intrigue by denying this afternoon that any of his party’s representatives had ever been made to sign undated resignation letters.
While earlier calling on his two Exco members to make their stand clear, Menteri Besar Datuk Seri Nizar Jamaluddin today avoided speaking to the press even after a scheduled government meeting or after he made a 25-minute visit to the palace for an audience with the Perak Sultan.
He is scheduled to hold an emergency Pakatan Rakyat meeting at 3pm at his residence today. The national Pas leadership is also meeting at his residence at 6pm to discuss the situation in Perak. Of the five states, Pas heads the government in three while DAP heads Penang and PKR heads Selangor.
Perak PKR is also refusing to state the obvious fact that Jamaluddin and Osman are set to leave the party, insisting that it has yet to receive any official resignation letters.
“We have not received any resignation letter, so as of now, they are still in the party,” PKR state chief Osman Abdul Rahman told The Malaysian Insider this morning.
He added that he has been unable to reach the two over the past five days and the party is considering its options now but want to wait for them to make clear their stand before proceeding.
“I understand they are making statements this evening. So we will decide after that,” he added.
DAP, meanwhile, remains confident that it will not lose any numbers in the current upheavals.
Rumours had surfaced that Jelapang assemblywoman and deputy speaker Hee Yit Foong was ready to defect to MCA after being unreachable early yesterday.
But she then turned up at her home in the evening, stating that she had merely switched her phone off to avoid persistent calls concerning the rumours and also denied she was quitting the party.
MCA president Datuk Seri Ong Tee Keat, rumoured to be meeting Hee last night, also rubbished the speculation, saying that he had no plans to meet any Pakatan elected representatives on his trip to Ipoh to attend the state MCA media night.
DAP state exco member Thomas Su also told The Malaysian Insider that the party was in communication with all its assemblymen.
“All 18 DAP state lawmakers are accounted for,” he said.
or so that has raised some very fundamental questions. The death of
Kugan – there are so many questions, there are moral questions, there
are political questions and there are just plain questions.
1) The first and fundamental question of "Is any killing acceptable?"
2) Who has the right to kill?
3) Is some killing more OK than others?
4) Is Police killing different than criminal's killing?
5) Is it OK to kill by law enforcers on the hint of lawbreaking?
6) Why do some people take such a defensive view of Kugan's killing?
7) Why do others higher up back them up?
8) Why is it so difficult to hold the police responsible for this
killing? It was so easy to charge the 60+ poor Indians on the 25th of
Nov for the unbailable offence of murder for no other reason than
being at Batu Caves on that day.
9) Why are the majority of the Leading Malaysian public figures
keeping quiet on this outrageous murder?
10) Why are only Hindraf, the Indian leaders of the opposition and
some conscientious bloggers taking serious offence with this murder?.
11) Is this really a Malaysian issue or is it only an Indian issue?
People say, it is a Malaysian issue but behave as if it is an Indian
All these questions produce a very strong stench of something terribly
wrong with processes in our society – a stinking stench. I don't know
if you all can get it, but I get it and it is very strong and it is
very unbearable on top of everything else that is going on.
Like so many other issues, will this issue also meet the same fate – a
lot of noise and very little or no action. I feel very angry and
bitter, that this is a very likely outcome. And this is absolutely not
right. If there are right thinking people ( I mean just people, not
Malay, Chinese or Indian, just people) then I think it is time that
these people speak up and make this episode to be the trigger to
completely stop all police killings in the country.
If it is a truly Malaysian Issue then the PR members of Parliament,
not Manickavasagam or Manoharan or Sivarasa should raise the issue in
Parliament and push for the implementation of the IPCMC. I do not even
attempt to call on the BN members to do the same, because that is
utterly useless. If I am to be wrong on this count, then let us see
some of them support the motion if the PR members bring it up in
But even before any of that I have this doubt. Can the Pakatan Rakyat
or should I say will the Pakatan Rakyat Coalition take this up as an
issue and really do something or will they calculate the political
benefit in this before they will act. Will they just leave it as a few
statements to the press at the heat of the moment to appear supportive
and then nothing more. This will be their behaviour if it is
interpreted by them as an Indian issue rather than as a National
Will the PR leaders truly lead?
We will wait and see.