Share |

Wednesday, March 11, 2009

DAP: Give money directly to the people

(NST) - The opposition was less than happy with the RM60 billion second stimulus package.

Penang Chief Minister Lim Guan Eng (DAP-Bagan) said the government should emulate neighbouring countries by directly giving money to the rakyat.

"To stimulate the economy, the government should give the money to Malaysians, like what Singapore, Taiwan and even Thailand are doing.

"For the next two years, things are going to get bad.

"We need to help the poor families in order for them to have money for their day to day life.

"Currently, there is no direct financial aid to all Malay-sians," he said.

The DAP secretary-general also lamented that the government did not implement the opposition's suggestion for families with incomes less than RM6,000 to be given an annual aid of RM6,000.

DAP information chief Tony Pua (DAP-PJ Utara) said while there were some good long-term measures in the stimulus package, there was a distinct lack of short-term measures.

"In times like this, it is important for us to put money into the pockets of people especially those who are in need.

" However, I do not see any unemployment benefits, not even the conventional measures like food stamps or coupons for the people to buy goods, which will immediately have a positive impact on our economy," he said.

Selangor Mentri Besar Tan Sri Khalid Ibrahim (PKR-Bandar Tun Razak), while commending the package, was worried that there would be leakages in the awarding of contracts.

"I've made a statement previously that anything below RM50 billion will not be a good start, but I think they have exceeded that.

"But the question now is not in its implementation, but about the leakages and the way contracts are given out.

"That is the worry we have," he said.

Opposition leader Datuk Seri Anwar Ibrahim declined to give his views.

"I will give my reaction tomorrow (today).

"This is very important for me as I can't just say it (give his opinion) like this."

IGP, AG cleared of wrongdoing in black eye case

By Adib Zalkapli - The Malaysian Insider

KUALA LUMPUR, Mar 11 – Minister in the Prime Minister's Department Datuk Seri Nazri Aziz today told the Dewan Rakyat that the Inspector General of Police Tan Sri Musa Hassan and Attorney-General Tan Sri Gani Patail was cleared of any wrongdoing in the 'black eye' incident after a two month investigation.

He was responding to a question from DAP's Gobind Singh Deo on why no action had been taken by the authorities after Datuk Seri Anwar Ibrahim lodged the report against the duo with the police and the then Anti Corruption Agency.

Last July, the Opposition Leader lodged a report against Ghani and Musa for alleged abuse of power in 1998 in the case where Anwar was beaten while in police custody.

Nazri said the Malaysian Anti Corruption Commission had appointed a panel of three independent members to investigate the complaint as it was a high profile and sensitive case.

The three members are former judges Datuk Abdul Kadir Sulaiman, Datuk Mohd Nor Abdullah and Datuk Wira Mohd Noor Ahmad.

“They have thoroughly investigated the case and found the AG and the IGP did not commit any criminal offence,” said Nazri.

He added that the trio did not discuss their findings with each other.

“The investigation commenced on July 2, last year and was completed two months later. We took some time to announce as we had to ensure that it would not be doubted by any party,” Nazri told the House.

The de facto law minister also revealed that one panel member believed that there was a case against the AG while all three agreed to clear the IGP.

Transition is on, for sure

KUALA LUMPUR, March 11 - The Opposition may attempt to rally support in Parliament and around the country for Datuk Seri Abdullah Ahmad Badawi to stay on as prime minister but the transition timetable is cast in stone.

Abdullah has informed his successor Datuk Seri Najib Tun Razak this week that he will hand over the reins of government on April 3.

This slight change to the earlier timetable of stepping down on March 31 is because Abdullah would like to chair the Cabinet meeting on April 1 and bid farewell to the ministers in person, some of whom have served with him under the previous administration.

The swearing in of Najib as the sixth prime minister of Malaysia is set for Friday, four days before the clutch of by-elections in Bukit Gantang, Bukit Selambau and Batang Ai.

This news is likely to dampen speculation that Abdullah will continue in office even after the Umno elections – speculation that went up several notches after Abdullah and Opposition icon Datuk Seri Anwar Ibrahim met at a lunch yesterday in conjunction with the Prophet Muhammad’s birthday.

The event was held at Madrasah Nurul Iman in Hulu Langat and was hosted by prominent religious leader Sheikh Mahmud. The two men and Sheik Mahmud spent some time talking in private.

Anwar downplayed the significance of the meeting saying: “too many assumptions and interpretations have been made about my presence and that of the prime minister in Hulu Langat.’’

Still, Pakatan Rakyat supporters have not been shy to offer their interpretation of the meeting, stressing that there could be a move by Opposition MPs to show support for Abdullah in Parliament next week.

This move, if it happens, will be the latest attempt by the Opposition to convince Abdullah that he has the support of Malaysians and should consider remaining in the country’s top job.

Opposition leaders including Pas spiritual leader Nik Aziz Nik Mat have in recent weeks urged Abdullah to toss aside the transition plan, arguing that he was given the mandate in March 2008 to lead the country till the next general elections.

Barisan Nasional officials said that any show of support by Pakatan Rakyat for Abdullah should be viewed through political lenses- as nothing more than an attempt to sow discord within the ruling coalition, especially Umno, and challenge the legitimacy of Najib as the prime minister.

The Malaysian Insider understands that Abdullah has not changed his position on retiring after the party elections in March ever since he told Malaysians in October that he was not seeking re-election as Umno president.

An old school Umno official, he believes that the prime minister of Malaysia must have the support and endorsement of the ruling party.

After March, Najib will have both.

Unity Government Abdullah - Anwar

Sheih Kickdefella

Unity Government is for Abdullah to decide and the rest can only give suggestion. Abdullah is still the Prime Minister of Malaysia and fast becoming an idol to the Opposition Pact whom had taken a monumental strength in the last election due to the weaknesses on Abdullah’s side.

PAS President, Hadi Awang made a statement few weeks ago suggesting for Unity Government, nevertheless what came from Hadi’s mouth can be branded as “Hidung tak mancung, pipi tersorong-sorong”.

Hadi neither commands the confident from the majority members of the Malaysia Parliament nor does he leads the government to make such invitation.

Hadi is merely the leader of a party that had the smallest number of seats among the opposition pact.

But if ever there’s anything to be read between the line, it is no point of starring at those words of Hadi but they may be something hidden and worth exploiting if we study the informal lunch and meeting by Abdullah and Anwar.

Perhaps.

The Pendatang joke from Penang

(This joke, which came by email, hits home a most pertinent message about Malaysian nation-building.)

Ahmad: Hey son, who were you talking to ?
Son: My fairy godmother.

Ahmad: How many times have I told you there is no such thing as a fairy godmother ?
Son: I know but there really is a fairy godmother, Dad.
Ahmad: Okay, call her here now. I would like to talk to her.
Son: But she won’t come Dad. She said she doesn’t want to meet you.

Ahmad: Did she tell you why?
Son: She said that you are a bad man.
You betray your Chinese friends by calling them Pendatangs.
Ahmad: You saw that news on TV, didn’t you ?
Son: No, I didn’t, the fairy godmother told me.
Ahmad: Well, your fairy godmother is wrong.
She should thank me for calling the Chinese Pendatangs.
Son: Why Dad ?
Ahmad: You see son, the Chinese are actually bad people.
They come from another country and they want to chase us out of
this country.
Son: Why do they want to do that Dad?

Ahmad: Because they are greedy.
Now, you tell your fairy godmother that your Dad is right by doing what
he did. Can your fairy godmother grant you wishes ?

Son: Yes Dad, she told me so.
She even asked me to make a wish but I didn’t know what to ask for.
Ahmad: Well, ask your fairy godmother to make all these Pendatangs to
disappear and go back to their grandparents country of origin.
Okay son, time for bed. No more talking to make belief fairy godmothers ,
okay .
Good night son.

Son: Good night Dad.

*15 minutes later*

Ahmad: SON, SON, where are you ? Where are you ?
Huh, there you are. I am so worried, I thought I’d never find you.
Son: Dad, where are we….. India ? Why are we here ?
I was talking to my fairy godmother on your wish and suddenly we are here
in a strange place.
Ahmad: Err, what were you talking to the fairy godmother ?
Son: *I told her, I wish all the Pendatangs would be sent back to where they
come from*.
*Is that Tun Dr Mahathir s/o Iskandar Kutty and
**Uncle Samy there selling roti ????
Dad, is this India ??? Badawi in China ….
Najib in Acheh rebuilding the home…..
**Khir Toyo busy tending his farm in Indonesia ….
Syed Albar and the rest of Arab SYED’s clan riding his camel in Yemen ’s
Arab desert.*

*** Indonesia population increases by 18 million while Malaysia population* shrink back to 10 million in 15 minutes !!!

Those descendants with more than 3 generation remained in Malaysia .

180 years….. 6 generations : Tun Tan Cheng Lock’s descendants.

Murugiah slammed over 'Indian funds'

NST, March 11 2009

THE debate over whether the MIC or the People's Progressive Party represents Indians in the country continues.

MIC treasurer Datuk S.K. Devamany, also deputy minister in the Prime Minister's Department, castigated PPP Youth leader Senator T. Murugiah yesterday for "intruding" into his "official" territory.


He said Murugiah, also deputy minister in the department in charge of the Public Complaints Bureau, should not have spoken on Monday about the RM12 million allocation by the Economic Planning Unit for Indian businessmen.

Devamany, who said the EPU came under his jurisdiction, added that the announcement should rightly have been made by Deputy Prime Minister Datuk Seri Najib Razak yesterday. He said it was also unethical and unacceptable for Murugiah to make the announcement before Najib.

"The RM12 million Tekun loan, RM12.2 million for skills training and RM50 million for Tamil schools were all obtained through recommendations by the EPU," he told reporters in the Parliament lobby.
Human Resources Minister Datuk Dr S. Subramaniam said Murugiah should mind his own business and focus on his job.

Last year, Federal Territories Deputy Minister Datuk M. Saravanan lambasted Murugiah for saying that Kuala Lumpur City Hall, which comes under the Federal Territories Ministry, should undertake lift repair work at a privately-owned condominium in Sentul.

Who is doing a good job in their respective position?

Stop the blame game, PPP told

MALACCA: The MIC and the People's Progressive Party are at it again.

MIC secretary-general Datuk Dr S. Subramaniam said PPP Youth chief and Deputy Minister in the Prime Minister's Department Senator T. Murugiah should not point the finger at the MIC for the Indian community's failings.


"The MIC has no time to respond to statements regarding the progress of the Indian community in the country as there are other better things to do," he said in response to Murugiah's statement that blamed the MIC for the poor economic showing of Indians.

Dr Subramaniam said Murugiah's statement was baseless as MIC leaders had actively promoted the interests of the community over the past 60 years.

"It would be better if he concentrated on doing something positive for the community rather than passing negative comments on what others are doing and by so doing only creating unnecessary friction among leaders.
"We cannot waste time commenting on everything he says. There are many other better things for the leaders of the Indian community to do," he said.

Dr Subramaniam was speaking to reporters after walking some 12km carrying a "Paal Koodum" (a pot of milk) from the oldest Hindu temple in the country, Sri Poyyatha Vinayagar Moorthi Temple in Jonker Street, to the Sannasi Malai Andavar Temple, in Cheng.

The Human Resources Minister is the first minister to ever join devotees in the procession held to mark the "Masi Magam" festival.

Federal Court to decide on Perak Sultan’s decisions

The Star
by M. Mageswari

KUALA LUMPUR: The Federal Court will deliberate on whether the Sultan of Perak’s decision to not dissolve the State Legislative Assembly can be challenged.

The apex court would also determine if the Sultan’s appointment of Datuk Dr Zambry Abd Kadir as the new Mentri Besar was valid.

High Court judge Justice Lau Bee Lan, who pronounced the questions in open court for referral purposes Tuesday, said she had considered four questions of law tendered by Senior Federal Counsel Datuk Kamaluddin Md Said with respect to the Perak Constitution.

They are:

1) Whether the withholding of consent to a request for the dissolution of the State Legislative Assembly of Perak under Article 16 (6) read together with Article 18 (2) (b) of the Perak Constitution by the Sultan is justiciable;

2) If the answer to the question is in the affirmative, then is the witholding of consent by the Sultan lawful;

3) Whether the appointment of the new mentri besar, under Article 16(2) (a) read together with Article 18(2) (a) of the Perak Constitution, by the Sultan of Perak was justiciable; and

4) If it is in the affirmative, then is the new mentri besar’s appointment valid.

In his suit filed on Feb 13, former Perak Mentri Besar Datuk Seri Mohammad Nizar Jamaluddin challenged the legitimacy of his successor Dr Zambry and the new state government.

Nizar’s lead counsel Sulaiman Abdullah had objected to the four questions tendered by Kamaluddin saying that they did not arise from the application for declarations and judicial review.

“Those questions are irrelevant to our application and we submit that whatever answers the Federal Court may give will not be finally determinative of the issues that have arisen,” he said.

Last Friday, the court had referred Nizar’s bid to the Federal Court. Justice Lau had ruled then that these were matters pertaining to the interpretation of Article 16(6) of the Perak Constitution. She immediately ordered a stay of the judicial review proceedings at the High Court.

Making Kugan’s death matter

By Zedeck Siew


(Pic by Mark Coggins / Flickr)

THE fresh findings on what caused A Kugan's death while in police custody are horrific and outrageous. Politicians, civil society groups and citizens have all expressed shock and anger.

Unfortunately, Kugan's death is not an isolated incident. In February 2005, Datuk Seri Abdullah Ahmad Badawi, in his capacity as Internal Security Minister, revealed to the Dewan Rakyat that there were 159 deaths in custody between 1990 and 2004. And according to the Royal Commission on Police report, released in May 2005, only six out of the 80 deaths in custody between 2000 and 2004 were subject to inquests.

What is criminal is that more often than not, those responsible for deaths in police custody get away, literally, with torture and murder. What then should be done to address deaths in custody? More importantly, why isn't anything being done?

Coroners Act

Human rights group Suaram is echoing the recommendations of the Parliamentary Select Committee on the Penal Code and Criminal Procedure Code (CPC), which in 2006 called for a Coroners Act. Such legislation would establish a Coroners Court, and include provisions for the appointment of coroners, and inquest procedures.

"The existing CPC does not adequately lay out procedures on inquests into deaths in custody," Suaram's Tah Moon Hui says in an interview, citing the United Kingdom's Coroners Rules as a model.

"Ideally, the Coroners Act will make it compulsory for all deaths in custody to be investigated," Tah explains.

Such measures will directly address the problem of deaths in custody, as well as other sudden death cases, including police shootings and prison- or detention-centre related ones, Tah adds.

The Coroners Act may also assist in ensuring that gravely dishonest post-mortems, such as Kugan's first autopsy, will not happen in the future.

The initial autopsy, conducted by forensic pathologist Dr Abdul Karim at Serdang Hospital, suggested that Kugan had died from fluid accumulation in the lungs. The second post-mortem later proved that the body was beaten, starved and burnt.


Kugan's second autopsy results being announced on 3 March 2009

Such a revelation calls into question all previous post-mortems into deaths in custody. For example, the family of Samiyati Indrayani Zulkarnain Putra, who died at the Wangsa Maju Police Station on 12 Sept 2006, claimed that her body bore evidence of bruising. But her cause of death was attributed to asthma.

Indeed, many deaths in custody are officially linked to natural causes.

Attempts to reach Hospital Kuala Lumpur's National Institute of Forensic Medicine for comment about the discrepancies were unsuccessful. In the meantime, the Health Ministry said on 7 March it would conduct an independent probe into the two autopsy reports in the interest of justice and fair play.

Denial and deaths

Criminal lawyer Amer Hamzah Arshad says laws such as the CPC and subsidiary legislation such as the Lock-up Rules were designed to "uphold and ensure the basic rights of persons under arrest" as well as regulate lock-up conditions. However, these have been enforced in such a way that basic rights are denied.

Section 28A(3) of the CPC, for example, stipulates that when an arrested person wishes to communicate with "a relative or friend to inform of his [or her] whereabouts" or "consult with a legal practitioner of his [or her] choice", the police officer involved should allow this "as soon as may be".

Subsection 8 allows exceptions to this rule, but only with authorisation of an officer not below the rank of Deputy Superintendent of Police.

"However, the exception has become the rule," Amer tells The Nut Graph, explaining that many detainees are denied their right to meet with counsel as a matter of course.

"Sometimes, when people want to visit an arrested person, they are told that it is 'past visiting time'. So what happens that night, nobody knows," Amer says.

"Allowing someone to see an arrested person ensures the person's welfare."

Having good laws alone is insufficient, Amer argues. "If we really want a first-class police force, officers must equip themselves with the laws, and be educated about human rights."

Amer says that the police's tendency to arrest suspects early in a criminal investigation also increases the opportunities for abuse in the lock-up. "This trend of 'arrest first, investigate later' needs to stop," Amer says. "Arrests should only be made with the purpose of charging the person."


An FRU officer behind the safety of a wire fence, observing events on the day of Kugan's funeral on 28 Jan 2009

Whither IPCMC?

Teluk Intan Member of Parliament M Manogaran, at the press conference where the findings of Kugan's second autopsy were revealed, asserted that "Kugan's death will not be in vain, as it will eventually pave the way for the Independent Police Complaints and Misconduct Commission (IPCMC)."

The IPCMC, proposed by the Royal Commission in its 2005 report, would be an independent, external and transparent oversight mechanism that monitors the police. It would be empowered to receive, investigate, and take action on complaints about the police and its personnel.

"Now, the only avenue for people [with grievances against the police] is a civil suit in court," says Amnesty International (AI) Malaysia's K Shan.

According to Shan, the IPCMC would be a semi-judicial structure that would be able to take action against the police if necessary, at no cost to the complainant.

"We've always argued that the police are civil servants, and therefore accountable to the people," Shan says. "The IPCMC would represent the people."

"The police must have a specific, independent oversight mechanism, because they are the biggest law enforcement organisation, and one that comes into the most contact with people on a day-to-day basis," Amer adds.

He stresses that if the police were under scrutiny by a strong, independent commission, there would be less abuse. "The police will be more careful, as they know that they are under scrutiny." Criminals, after all, often commit crime because they think they can get away with it.


G Sara Lily, with a photo of her son, Francis Udayappan, 24, who died in 2004 after escaping from police custody
and allegedly jumping into a river behind the Brickfields police station. A coroner's court cleared the police
of any wrongdoing. Sara Lily's application for a review to the High Court was dismissed in November 2008

Resistance

Unfortunately, the Malaysian government does not appear to share this sentiment.

In December 2007, Minister in the Prime Minister's Department Datuk Seri Mohamed Nazri Abdul Aziz introduced the Special Complaints Commission (SCC) Bill in Parliament. It was a watered-down version of the IPCMC that was general to all law enforcement bodies, bound by secrecy laws, and subject to further amendments in the first two years.

Former Royal Commissioner Tunku Abdul Aziz Ibrahim called the SCC "fraudulent", as it "utterly lacks independence" and was "powerless to act".

"I think they were trying to dilute the IPCMC's strong wordings to appease the police," Shan says.

Indeed, in 2006 the police blasted the proposed IPCMC in their Buletin Bukit Aman, calling it "unconstitutional, prejudicial to national security and public order, can cause a state of anarchy and undermines the ruling coalition's power."

Shan finds the police's resistance to the IPCMC puzzling. "Reform is good: it will make them look good, and gain public confidence," Shan argues.

Countries such as the United Kingdom, Hong Kong, and Australia have effective oversight bodies that have benefited their police force. Shan notes that there was some resistance when oversight commissions in these countries were first introduced. However, there was political will to forge ahead in the public's interest.

Malaysia sorely requires such political will.

A refrain from the politicians and community leaders at Kugan's funeral procession was: "Today Kugan, tomorrow Kamarul, the day after Kim Seng!"


Crowd holding up placards condemning the police and asking for the IPCMC to be formed, on the day of Kugan's
funeral. Emotions ran high; one individual shouted: “Hey polis! Mau mayat bukan? Mari angkat mayat!”

Indeed, since Suaram began keeping its own records, it has observed that deaths in detention involve people of all ethnic backgrounds. In 2006, for example, the human rights organisation found that five Malay Malaysians had died in police custody, compared with three Indian and two Chinese Malaysians.

"It is a myth that mostly Indians are involved," says Suaram's Tah.

Many have already perished while being held by police. Many continue to perish, as Kugan's death has come to exemplify. And for every year Malaysia stalls at police reform, we pay a price in blood. The question is, just whose blood will be spilled next?

Placeholder: Water Privatisation, Gani & Musa

I’m just back from the handing over of a memorandum of support from the Coalition Against Water Privatisation, the Malaysian Trade Union Congress, and a number of other NGOs to TS Khalid, in support of Selangor’s bid to unprivatise water management in Selangor.

There’s so much important stuff to write about this. Which I will endeavour to do, as soon as I decipher and scrutinise their newly released, mildly inscrutable pamphlet. I’ve been waiting forever for a really good one concise document or image that contains all the punchy information that makes up this case. Perhaps we’ll have to make one ourselves.

I was speaking to a reporter there, and likened this current water business to us being at a point where we could have stopped the submarine purchases, or at least the massive kickbacks that followed it. If we are not vigilant and smart in preventing this catastrophe, we will again have billions of our money stolen from under our noses.

The other thing I want to look more into is this panel of judges that cleared Gani Patail and Musa Hasan this morning. The whole thing stinks.

When it rains it pours, am now facing something of a blogging backlog, but I’ll try my best to get to it soon.

Police Identify Hot Areas In Bukit Selambau

ALOR SETAR, March 11 (Bernama) -- The playing up of racial sentiments by certain quarters has turned certain areas in the Bukit Selambau state constituency into "hot" spots.

Kedah police chief Datuk Syed Ismail Syed Azizan said so far the police had identified two to three hot spots and were monitoring the situation in the run-up to the by-election on April 7, but "everything is under control".

He, however, declined to reveal the hot spots for security reason and that a briefing on the situation in Bukit Selambau would be held at the state police headquarters in a few days' time.

The by-election is held following the resignation of its assemblyman V. Arumugam from Parti Keadilan Rakyat (PKR) on Feb 8.

The campaign is heating up following the announcement by a number of individuals of their intention to contest the seat as independents, while the Barisan Nasional and PKR will also be fielding their candidates.

Like for the Bukit Gantang parlimentary seat by-election in Perak, the nomination day for the Bukit Selambau state seat is March 29, and in the event of a contest, polling will be on April 7.

Waythamoorthy's heart surgery postponed

Hindu Rights Action Force (Hindraf) leader P Waythamoorthy could not undergo a scheduled heart surgery at a London hospital yesterday due to his deteriorating health.

MCPX

He has since been quarantined at a specialist heart centre on a 48-hour observational period, after which doctors will decide on whether or not to carry out the operation to place an implant in his heart.

"The surgery has been re-scheduled to Wednesday, provided our leader recovers well," local Hindraf leader RS Thanenthiran said today after speaking to Waythamoorthy's wife, K Nageswary @ Shanti, who is in London at her husband’s bedside.

waythamoorthy in hospital in london 050309 03Upon the request of Waythamoorthy’s family, Hindraf is withholding the name of the hospital treating him.

Waythamoorthy had previously been advised that he would run the risk of complications such as cardiac arrest and puncture of the heart should the surgery be performed on him.

The widely-traveled human rights leader is suffering from a rare heart condition known as Arrhythmogenic Right Ventricular Cardiomyopathy (ARVC), which was discovered by a cardiologist during an emergency angioplasty on Mac 2.

ARVC is an inherited heart muscle disorder where damaged heart muscle is gradually replaced by scar tissue and fat. A recognised cause of sudden death in the young, the condition may cause abnormal electrical heart rhythms and weakening of the pumping action of the heart.

It is also learnt that Waythamoorthy, who has dedicated most of his life to the struggle of the Indian community in Malaysia, has pledged his heart to the United Kingdom's National Health Services (NHS) for research upon his death.

Shanti said, "He wants to help humanity even upon his death, after spending so much time, energy and money for the people when he was alive."

Nationwide prayers

rs thanenthiranThanenthiran added that Hindraf will conduct nationwide prayers tonight for its leader’s speedy recovery and also called on the government to issue a new passport to Waythamoorthy, replacing his revoked one, to allow him to return safely to his home in Seremban.

"It will allow him to recuperate with his family members and loved ones. He must not be subjected to any arrest, harassment or charges upon his return, including arrest under the Internal Security Act," said the local community leader.

Waythamoorthy has been in London since November 2007. He had initially gone there to garner international support for Hindraf. He, however, was not able to return to Malaysia after the government launched a crackdown on the movement and its leaders, five of whom are currently under ISA detention in the Kamunting Detention Camp in Taiping.

Pak Lah has lunch with Anwar - Malaysiakini

Prime Minister Abdullah Ahmad Badawi today had lunch and a rare meeting with Opposition Leader Anwar Ibrahim at a function in Hulu Langat, Selangor.

MCPX

anwar and pak lah hulu langat meeting 100309 04The presence of the two leaders at the same table raised eyebrows as well as questions on whether the outgoing premier and the waiting-to-be premier are stitching a political pact.

While some in the opposition camp, including PKR Youth chief Shamsul Iskandar Md Akim, who was with Anwar today, have denied that there was a "secret meeting" between the duo, this however has not stop the speculation.

According to a source close to Anwar, the two leaders had a four-eye meeting which lasted about 20 minutes.

"Anwar asked Abdullah how he could have entrusted the country to (Deputy Prime Minister) Najib (Razak), which the PM said it was too late to do anything now," said the source.

According to the source, Abdullah hinted that he had a core of loyal supporters within the party who would keep Najib in check.

"The two leaders talked about the need to salvage the country and agreed to keep communication lines open between them."

The lunch between the two leaders took place at the house of a religious school head some three hours before Najib unveiled the RM60 billion stimulus package in Parliament at 4pm.

Abdullah and Anwar, both of whom are known for their religious credentials, were invited by the school for the Maulid Rasul (Prophet Muhammad's birthday) celebrations.

Crowd was stunned

Political writer Mohd Sayuti Omar, who was also at the function, said he was informed by the organiser that the duo had talks regarding the possibility of Abdullah remaining in power.

anwar and pak lah hulu langat meeting 100309 03In his blog, Mohd Sayuti said the crowd of about 1,000 were anticipating Anwar's arrival but were stunned when the prime minister showed up.

"Abdullah was expected to visit the school tomorrow to officiate a meeting of international ulamas. His presence this afternoon raised questions since it coincided with Anwar's visit," he added.

According to Mohd Sayuti, Abdullah arrived at school some 20 minutes before Anwar and his wife, Dr Wan Azizah Wan Ismail, were there.

anwar and pak lah hulu langat meeting 100309 02"The two of them were taken to (head of the religious school) Syeikh Mahmud Al-Mazjub's house for lunch. They were in the house for nearly two hours.

"The duo then performed their Zohor (afternoon) prayers together," he said, adding that the leaders later emerged smiling and they shook hands.

It is learnt that the two leaders were pursuaded to meet by Syeikh Mahmud.

"What happened today was historical, we hope it works!" Mohd Sayuti quoted an organiser of the event as saying.

In his blog, Anwar said that people should not read too much into the meeting.

"There have been too many assumptions and interpretations regarding our presence at the event," he lamented.

Rakaman Ceramah Anwar Ibrahim di Bukit Selambau 7 Mac 2009

Part 1


Part 2


Part 3

Sivakumar files for judicial review against EC decision

Federal Court dismisses Uthayakumar's appeal

The Federal Court today dismissed Hindraf leader P Uthayakumar's appeal on his second habeas corpus application to secure his release from detention under the Internal Security Act on technical grounds.

Justices Nik Hashim Nik Ab. Rahman, S Augustine Paul and Hashim Yusoff unanimously dismissed his appeal after he failed to fulfil the requirement under Section 95 of the Rules of the Federal Court to file a petition of appeal within the stipulated 10 days after receiving the record of appeal from the court.

According to Bernama, they also rejected his application for extension of time to file the petition of appeal.

Uthayakumar, 47, a diabetic, appealed against the High Court's decision disallowing his second habeas corpus bid for freedom on grounds of medical negligence.

On Sept 17 last year, High Court judge Suraya Othman held that Uthayakumar's claim that he was denied proper medication, treatment and proper diet by the Taiping Hospital and officials of the Kamunting detention camp was not true and without merit.

Outside the court, one of Uthayakumar's lawyers, N Surendran, said he would consider filing a fresh a habeas corpus application following today's decision.

Uthayakumar and four other Hindraf leaders - lawyer R Kengadharan, 42, M Manoharan, 48, V Ganabatirau, 36, and Hindraf coordinator K. Vasantha Kumar, 36 - filed their first application on Dec 26 last year after they were arrested.

Their application was subsequently dismissed by the High Court and the Federal Court.

Grant extension

In today's proceedings, senior federal counsel Abdul Wahab Mohamad notified the court of the absence of the petition of appeal.

He said that section 95 requiring the petition of appeal to be filed should be strictly followed but Uthayakumar's counsel SY Chew argued that habeas corpus cases, which go directly to the Federal Court by-passing the Court of Appeal, were exempted from that procedure.

There was a lacuna in that section of the Rules of the Federal Court, she said, adding that the section only applied to criminal cases coming from the Court of Appeal to the Federal Court.

At this juncture, Justice Paul questioned Chew on the failure to file the petition, saying: "You people do everything and finally throw everything to the Federal Court".

He said he had never seen a single habeas corpus case without a petition being filed. The quorum then ruled that Section 95 applies to Uthayakumar's case and ordered Chew to submit on the issue of extension of time to file the document.

Chew contended that the court should grant extension of time for her to file the document because the matter was an important one, affecting the liberty of a person under the Federal Constitution.

She asked the court to exercise compassion and leniency to grant her time to file, saying that Uthayakumar was suffering from lack of proper treatment and lack of diabetic diet in detention.

Judiciary's policy is to keep silent

(Bernama) -- It is the judiciary's policy to keep quiet and not make comments on controversial issues that attack the institution, Chief Registrar of the Federal Court Hasnah Mohammed Hashim said today.

He said the institution's motto was "Kita senyap tapi kita buat kerja" (We keep quiet but we work).

"It is better for the court to keep silent. We don't want to invite any controversy," she said in response to a question from the media on why the court had remained silent over the controversial issues that had arisen.

The court has been plagued with controversial issues lately, among them, the allegation on Chief Justice Tan Sri Zaki Tun Azmi's conduct on bribery, when he was a lawyer.

Hasnah said that although the judiciary remained silent on controversial issues, it did not mean that it would not entertain complaints from the public or shy away from the media.

This was evident from the setting up of a public relations unit in a move to change its low-profile image into a interaction-friendly one, she said at a get-together at the Palace of Justice here, the first to be held between the judiciary's top administrators and the media.

Present were Court of Appeal registrar Has Zanah Mehat, Head of the Judicial Research and Public Relations Division Norhazani Hamzah and public relations officer Yasmin Abdul Razak.

Hasnah said that previously the judiciary had little contact with the media and the idea to hold the get-together with the media was mooted last year.

"It is the Chief Justice's aspiration that we foster close relationship with the media and the public," she added.

Meanwhile, Yasmin said her post was created not only to deal with complaints from the public but also to assist the public who had difficulty in accessing the judiciary in terms of where to go, who to see and what to ask.

It was also to make know to the public the existence of the judiciary's public complaints unit which was set up two years ago, she said, adding that the judiciary received about 15 complaints a week, mainly over delays in court proceedings, postponement of cases and against lawyers.

"So far we're doing quite good in that area and complaints are usually resolved within two days," she added.

Meanwhile, Hasnah also said that the judiciary was undergoing a reform to improve its delivery system as well as the standard and quality of judicial officers through education.

It was also launching an E-Payment system to enable lawyers to pay fees for filing of court documents in the comfort of their office, instead of having to queue at counters at the courts.

She said the system was initially supposed to be implemented this month but was delayed to April to sort out some technical problems as it involved a lot of court documents.

The system would be introduced in the Kuala Lumpur courts first and eventually extended to courts in the other states.

Sultan Selangor mahu pandangan rakyat diutamakan

(Hrkh) - Prinsip yang paling penting untuk mencapai sebuah negara yang maju ialah prinsip demokrasi dengan pandangan rakyat perlu diutamakan dalam menetukan hala tuju sesebuah negara.

"Pandangan rakyat merupakan satu petanda yang terbaik sama ada berjaya atau tidak pentadbiran sesebuah negeri.

"Sudah semestinya prinsip ini dilengkapkan dengan perlembagaan persekutuan dan undang-undang tubuh kerajaan negeri yang semua seharusnya sedia maklum," titahnya.

Baginda bertitah demikian dalam Majlis Perasmian Mesyuarat Pertama (Pembukaan) Persidangan Penggal Kedua Dewan Undangan Negeri Selangor ke-12 di Bangunan Dewan Undangan Negeri Selangor, dekat sini pagi tadi. Image

Menurut baginda, pandangan rakyat harus diambil kira dan mempersoalkan tindakan kerajaan negeri yang melaksanakan 'Merakyatkan Ekonomi Selangor' (MES) sekiranya menolak pandangan rakyat.

Oleh itu titahnya, proses perbincangan awam seharusnya diperbanyakkan untuk setiap keputusan dan kerangka utama pembangunan kerajaan negeri.

"Masyarakat madani di negara maju menyumbang secara aktif kepada pembangunan negara dan ini sewajarnya menjadi kebiasaan di Selangor," titah baginda.

"Kerajaan negeri beta mesti cuba menggunakan kepakaran yang ada pada pihak-pihak ini dalam tujuan untuk memajukan negeri Selangor. Image

"Meskipun ada kelemahan yang mesti diatasi, namun negeri beta ini telah meneruskan usaha mencapai matlamat negara yang maju dengan prinsip-prinsip pentadbiran yang terbaik dengan prinsip yang paling penting iaitu demokrasi," titah baginda.

Dalam pada itu, Sultan Selangor juga menegaskan bahawa keamanan, keharmonian serta perpaduan kaum di negara ini akan terjejas dengan berlaku beberapa insiden yang melibatkan perbalahan yang dicetuskan oleh sekelompok masyarakat.

"Justeru, beta ingin menyeru kepada semua pihak agar memberhentikan segala tindak-tanduk yang boleh menjejaskan imej negara ini dan menumpukan perhatian ke arah memupuk perpaduan yang erat di kalangan semua kaum." titahnya. Image

Baginda juga menyeru supaya sikap hormat-menghormati diantara kaum perlu diamalkan setiap waktu agar keharmonian yang berkekalan.

"Sikap hormat-menghormati diantara kaum di negara ini perlulah sentiasa diamalkan bersama bagi menjamin perpaduan di kalangan masyarakat Malaysia," titah baginda.

14 days is a long time in politics

The Federal Constitution merely states that the Agong shall appoint the Prime Minister from amongst a Member of the House who, in Tuanku’s opinion, commands the confidence of the majority of the Members of the House. It says nothing about the Prime Minister having to be the President of Umno or the Chairman of Barisan Nasional.

THE CORRIDORS OF POWER

Raja Petra Kamarudin

Moreover, Mr. Najib brings to the job much political baggage. In particular there is the case involving an adviser to Mr. Najib of a Mongolian woman who was shot and blown up with specialized C4 plastic explosives in Malaysia in 2006. The adviser, the woman’s former lover, was cleared of ordering her death in a protracted court case that drew harsh public criticism and left vital questions unanswered. Two members of an elite police bodyguard unit assigned to Mr. Najib, who were asked by the adviser to “do something” about the woman because she was blackmailing him, have to answer murder charges. The adviser said he had contacted the two policemen through Mr. Najib’s aide-de-camp, and one of them, a chief inspector, testified that the aide-de-camp had instructed him to help the adviser.

Before the adviser was charged, Mr. Najib sent a text message to a lawyer representing his adviser saying that the adviser “will have to face a tentative charge but all is not lost,” according to a transcript of their exchanges. One of the country’s most popular bloggers and online journalist-editors, Raja Petra Kamarudin, faces sedition and libel charges after allegedly implicating Mr. Najib and his wife in the killing. Although Mr. Najib has denied ever knowing the victim, taking the unusual step of swearing his innocence in a mosque, he has been unable to stem an avalanche of gossip, speculation and serious analysis, much of it circulated on the Internet.

Mr. Najib also has long been embroiled in allegations of corruption in the purchase of big-ticket weapon systems during his two lengthy terms as defense minister (1990-95, 1999-2008; he retained the defense portfolio after becoming deputy prime minister in 2003), when he drove an aggressive military modernization program. According to Foreign Policy in Focus, a Washington-based think tank, foreign arms manufacturers use well-connected Malaysians as lobbyists, paying them commissions of 10% to 20% to win contracts. Malaysia’s political opposition says much of the money goes to people closely associated with UMNO, including Mr. Najib’s contacts, though the police and anticorruption authorities have not investigated particular cases to the satisfaction of complainants.

For example, the 115 million euros “coordination and support services” payment for Malaysia’s purchase in 2002 of two new Scorpene and one reconditioned Agosta submarine for 1 billion euros was paid to Perimekar Sdn. Bhd. Perimekar at the time was owned by a company called K.S. Ombak Laut Sdn Bhd — later by two other companies as well — which was in turn owned by Abdul Razak Abdullah Baginda, the Najib adviser who stood trial for abetting the murder of the Mongolian woman. The Defense Ministry denied paying a commission and said Peremkear was awarded a genuine contract to support the acquisition of the submarines.

Najib's Challenge: Clean up UMNO by Barry Wain, Far Eastern Economic Review (http://mt.m2day.org/2008/content/view/19043/84/)

********************************

What a day to have lunch together. On a day when Najib is announcing his staggering RM60 billion stimulus package, Abdullah has lunch with Anwar.

I haven’t seen Abdullah looking so relaxed and cheerful for a long time. Click here to have a peek. (http://shamsuliskandar.wordpress.com/2009/03/10/pm-abdullah-dan-dsai-makan-tengahari-untuk-keamanan/)

According to PKR Youth chief Shamsul Iskandar in his blog, both leaders were invited by Al-Fadhil Tuan Guru Syeikh Mahmud Al-Majzubdi (better known as Tok Ayah) for the Maulud Rasul celebrations at the Madrasah Nurul Iman, Hulu Langat in Selangor.

Anwar says people are reading too much into the encounter. But hey, it’s not everyday the PM and Anwar have lunch together; so tongues are bound to wag.

Anyway, 49 per cent of over 5,000 respondents to the poll on this blog think that Abdullah will remain as PM after March while only 11 per cent of you think Najib will take over. Let’s wait and see what happens.

Anwar-Abdullah lunch fuels speculation
by Anil Netto (http://anilnetto.com/malaysian-politics/anwar-abdullah-lunch-fuels-speculation/)

********************************

It is roughly two weeks to go before the coming Umno General Assembly. Two weeks is 14 days and 14 days is a long time in politics. Anwar went from becoming the successor to Tun Dr Mahathir Mohamad to a sacked Umno member in only three days. And about two weeks later be found himself in jail facing a possible nine criminal charges, seven which were later dropped after they secured a conviction on the first two, which attracted a total jail sentence of 15 years.

Can Najib Tun Razak still make it as Prime Minister at the end of this month? There is no doubt he will become the Umno President, mainly because he will win uncontested and anyone can win in a walkover. But this does not mean he will also become the Prime Minister because there is no law that says the Umno President must also become the Prime Minister.

Tun Razak, Najib’s father, became Prime Minister while Tunku Abdul Rahman stayed on as the Umno President. Dr Mahathir stayed on as Prime Minister after Umno got deregistered and the MCA President, Ling Liong Sik, took over as the Barisan Nasional Chairman. For all intents and purposes, Dr Mahathir was an independent Member of Parliament and a man with no party for that brief period of time until the new Umno called Umno Baru was registered.

The Federal Constitution merely states that the Agong shall appoint the Prime Minister from amongst a Member of the House who, in Tuanku’s opinion, commands the confidence of the majority of the Members of the House. It says nothing about the Prime Minister having to be the President of Umno or the Chairman of Barisan Nasional. For that matter, Ibrahim Ali, the sole independent Member of Parliament, can become Prime Minister if at least 112 of the 222 Members of Parliament support him as Prime Minister -- heaven forbid.

And do at least 112 of the 222 Members of Parliament want Najib as the next Prime Minister come end of this month? Okay, maybe SOME of the 65 Umno Members of Parliament from Peninsular Malaysia do. And maybe SOME of the 13 Umno Members of Parliament from Sabah do as well. But that makes only 78 Members of Parliament who want him as Prime Minister -- assuming ALL 78 Umno Members of Parliament from Peninsular Malaysia as well as Sabah are unanimous in their support for Najib.

And this is only if we assume that ALL 78 Umno Members of Parliament are unanimous in their support for Najib. From what I have been told, at least 20 are with Abdullah Ahmad Badawi. Amongst these 20 are of course Tengku Razaleigh Hamzah, Khairy Jamaluddin and Abdullah Badawi himself. So there is no way Najib can get the unanimous support of all the 78 Umno Members of Parliament. At best he can get the support of only 58 Umno Members of Parliament. This means Najib is still short of 54 Members of Parliament.

But then, can Najib afford to get the support of only 112 Members of Parliament? What if one were to get a heart attack while playing badminton and dies, or his/her nude photographs or sex video suddenly appeared on the Internet and he/she is forced to resign, or something like which is so customary nowadays. Then Najib would be left with only 111 Members of Parliament against 111 who are against him. This would result in a hung Parliament and Najib would find himself as the Prime Minister with the shortest term in Malaysian history.

No, a figure of 112 is just too close to the bone. Najib would need at least 130 to 140 to be home with a comfortable margin. And that means he cannot depend solely on the Umno Members of Parliament. Umno alone can’t give him the numbers. Umno has only 78 while just 58 are with him. He also needs the 30 non-Umno Members of Parliament from Sarawak and the balance 11 from Sabah plus the 20 from MCA, MIC and Gerakan as well.

Najib is banking on full support from Umno. He can of course get full support from the 2,500 or so Umno delegates who will be attending the Umno General Assembly in about two weeks time. But not all the 2,500 Umno delegates are Members of Parliament. Only 78 are while just 58 are with him. Najib has far from secured the job of Prime Minister of Malaysia whatever the outcome of the Umno General Assembly.

Ali Rustam will win the Umno Deputy Presidency and Najib’s cousin, Hishammuddin, is going to lose the Vice President’s post, while Khir Toyo will become the Youth Leader. Najib is going to automatically become the Umno President only because no one is able to challenge him. But he is going to be isolated and surrounded by those who are not aligned to him as far as the other Umno positions are concerned.

If Najib is assured of becoming the Prime Minister then he can be guaranteed the support of the non-Umno Barisan Nasional Members of Parliament from MCA, MIC, Gerakan, Sabah and Sarawak. He will of course not get the support of the 83 Pakatan Rakyat Members of Parliament. But he has a chance of getting the support of the 61 non-Umno Barisan Nasional Members of Parliament.

This, however, will depend on whether he is assured of becoming Prime Minister. People have a habit of supporting the winner. If you are winner everyone wants to be associated with you and wants to become your friend. No one, however, wants to become associated with a loser. And unless Najib can show he is a winner and not a loser he will not be guaranteed the support of the 61 non-Umno Barisan Nasional Members of Parliament.

Abdullah Badawi has more or less resigned to the fact that by 1 April 2009 he would be sent into retirement. He has even bought an iPhone, which he intends to use to communicate with his grandkids. Does he even know how to use that very complicating iPhone? Not yet, but since he will soon be retiring he has plenty of time to learn how to use it and then spend hours chatting with his grandkids. Hell, he may even set up his own Blog and Facebook since he would not have much work come 1 April 2009.

His wife, Jeanne Danker, is also looking forward to retirement. This simple lady does not enjoy the limelight of ‘First Lady’ and will not miss life in Seri Perdana. She would rather spend her time with her husband and kids. But she abhors the thought of handing this country over to Najib. And Abdullah Badawi’s kids share Jeanne’s view. They are not opposed to Abdullah Badawi retiring. They are opposed to the idea of Najib taking over with the porky Rosmah Mansor gracing the halls of Seri Perdana as the ‘First Lady’ and ‘Queen Elizabeth’ both rolled into one.

They say there is no such thing as hell on earth. But then these people have not imagined life with Rosmah Mansor calling the shots as to how this country should be run. In fact, it would be more like run into the ground with her at the helm. And this is also the view of the Agong.

No doubt Malaysia is a Constitutional Monarchy and the Agong ‘shall act on the advice of the Prime Minister’ -- and ‘shall’ has been wrongly interpreted as ‘must’. But there are certain things that the Agong does not act on the advice of the Prime Minister and instead uses his own discretion. And one of these things is with regards to the appointment of the Prime Minister who in Tuanku’s opinion commands the confidence of the majority of the Members of the House.

We have seen, of late, the Rulers exercising their discretion in the appointments of the CEOs. Perak, Selangor, Terengganu and Perlis are examples of this. The Rulers and not Umno decided on who should lead the states. The recent Perak crisis, where the state changed hands from Pakatan Rakyat to Barisan Nasional, is yet another case in point. The Rulers have the power to decide and they have not backed down from exercising this power. And the same applies with regards to the appointment of the Prime Minister.

Anwar Ibrahim’s meeting with Abdullah Badawi yesterday laid the foundation for cooperation between Pakatan Rakyat and some dissenting voices in Barisan Nasional who feel Najib should not be the next Prime Minister. With the 83 Pakatan Rakyat Members of Parliament and another 20 from Umno that makes 103 in all. So all they need is another nine to deny Najib the job of Prime Minister. And MCA has 15, MIC 3, Gerakan 2, Sarawak 30, while the non-Umno Members of Parliament from Sabah come to another 11. Getting just nine from amongst that large group of 61 is not that difficult.

Anwar Ibrahim may never become Prime Minister. But even if he does he is still the lesser of the two evils compared to Najib as far as Abdullah Badawi is concerned. And as far as Anwar is concerned, whether he becomes Prime Minister or not is not the key issue at the moment. What is would be that the Prime Minister must not be Najib. So even if all that Anwar achieves in the end would be for Abdullah Badawi to stay on, that too would be the lesser of the two evils in Anwar’s book.

Abdullah Badawi may have to keep his iPhone in the box awhile longer. He may not have the time to learn how to use it after all. Many are bent on assuring that Najib never takes over as Prime Minister. And if the new Prime Minister is not going to be Anwar, then Abdullah Badawi would have to instead stay on for some time to come. And if this happens then I will personally go to meet Abdullah Badawi to help him with his iPhone. Hell, I might even buy one myself so that I can learn how to use it before I go teach Abdullah Badawi how to use his.

PERAK SPEAKER COMMENCES COURT ACTION TO COMPEL ELECTION COMMISSION TO HOLD ELECTIONS ON THREE 'FROGS' STATE SEATS

The Perak State Assembly Speaker, V Sivakumar today filed a judicial review application at Kuala Lumpur together with others to compel the Election Commission to hold fresh State elections in Behrang, Changkat Jering and Jelapang, as a result of resignations letters received by him while declaring these State seats vacant.

The unprecedented decision of the Election Commission not to hold a fresh State Elections and allowing these 'frogs' to claim themselves as Independent with Barisan Nasional friendly had created a mockery and this matter need to be resolved since the Perak State government is under political turmoil with both fractions, Pakatan Rakyat and Barisan Nasional claiming to lead the State.

The application for judicial review was filed at High Court registry in Jalan Duta at 3.20pm today.

This Tronoh Assemblyman who is Perak State Speaker, is seeking an order for the three assemblypersons to present authorities or powers stipulating they are still elected representatives for their respective constituencies.

In addition, he is seeking:

that the three state seats be declared vacant and cleared following the resignation of the three representatives from Pakatan;

an injunction against the three respondents or their agents to make a representation that they are the rightful elected representatives and are responsible, with the functions and job as a state assemblypersons;

an order of certiorari to quash the EC’s decision not to call for by-elections in Behrang, Changkat Jering and Jelapang;

an order of mandamus (to compel) the EC to hold by-elections in the three state seats; and punitive, aggravated and exemplary damages from the court as a result of the course of the action and other relief sought and awarded by the court.

It seems that the Perak episode would not be resolved unless a fresh State elections is convened and it is hope that the ultimate saver of justice for his subjects, the Sultan of Perak would consent to dissolve the State Assembly immediately, paving a way to hold fresh elections and to overcome these uncertainties faced in Perak

news n pictures courtesy of Malaysiakini

“Perak Speaker must be represented by State Legal Adviser” - Government Proceedings Act 1956 Irrelevant

(By CKO, an Advocate practicing in Sabah, who has no political affiliation.)

1. Much has been said on the recent legal battles in Perak in the first week of March 2009, including the decision of the Ipoh High Court to grant an Order against the Speaker under Section 44(1) of the Specific Relief Act 1956. The Ipoh High Court apparently has ruled that because of the Government Proceedings Act 1956 (“GPA”), the State Assembly Speaker must be represented by the State Legal Advisor in the relevant legal proceedings. However, it is my humble view that the GPA was not applicable at all.

State Speaker Must be Represented by the State Legal Advisor?

2. There is no official report yet on the actual legal basis for the High Court’s rulings on this point, so we can only rely on the press reports. It has been reported that:-

“Mohd Hafarizam had argued that the Speaker’s own lawyers could not represent him as he was considered “part of the government”, and therefore only the state legal adviser could act for the Speaker and State Assembly members.”

(Speaker restrained from convening ‘State Assembly meetings’; The Star, Wednesday, March 4, 2009)
http://thestar.com.my/news/story.asp?file=/2009/3/4/nation/3399999&sec=nation

“Datuk Hafarizam Harun, who is leading the lawyers representing the three independent state representatives who switched to support Barisan Nasional, said Sivakumar could use private lawyers only if he resigns.

“Then we can elect a new speaker from the Barisan Nasional,” Hafarizam said, reflecting Barisan Nasional’s strategy to oust the speaker.

He added that Sivakumar had no choice but to use the SLA even if he had no faith in that person. “The prime minister also has to use the Attorney-General. It is not a matter of choice.””

(High Court: Sivakumar must be represented by state legal adviser; The Malaysian Insider, Thursday, March 5, 2009)
http://www.themalaysianinsider.com/index.php/malaysia/19690-high-court-sivakumar-must-be-represented-b

3. Presumably, such a sweeping argument made by the lawyers representing the Perak Barisan Nasional was based on Section 24 of the GPA:-

“24. Appearance of law officers.

(1) Notwithstanding any written law-
(a) in civil proceedings by or against the Federal Government a law officer, the Parliamentary Draftsman or a Federal Counsel, or, in the case of the States of Sabah and Sarawak, a legally qualified member of the Federal or State Attorney General’s Chambers authorised by the Attorney General for the purpose; and
(b) in civil proceedings by or against the Government of a State a law officer, the Parliamentary Draftsman or a Federal Counsel authorised by the Legal Adviser of such State, and, in the case of the States of Sabah and Sarawak, the State Attorney General or any legally qualified member of the State Attorney General’s Chambers authorised by the State Attorney General for the purpose;

may appear as advocate on behalf of such Government and may make and do all appearances, acts and applications in respect of such proceedings on behalf of the Government.

(2) Notwithstanding any written law in civil proceedings to which a public officer is a party-
(a) by virtue of his office; or
(b) in his personal capacity, if the Attorney General certifies in writing that it is in the public interest that such officer should be represented by a legal officer;

a legal officer may appear as advocate on behalf of such officer and shall be deemed to be the recognised agent of such officer by whom all appearances, acts and applications in respect of such proceedings may be made or done on behalf of such officer.”

4. However, it is my humble view that if the Perak Barisan Nasional’s application was a Judicial Review application, then Government Proceedings Act 1956 does not apply. It is actually irrelevant whether the Speaker was deemed ‘part of the government’ or not, as the GPA is totally not applicable and therefore it cannot be the basis to bar the Speaker from appointing any lawyer of his own choice. This is because the phrase “civil proceedings” in that Act has a specific meaning.

5. Just because the application was not ‘criminal’ in nature does not necessarily mean that it was therefore ‘civil’. With all due respect to the High Court and the lawyers acting for the Perak BN, such leap of logic shows a fundamental ignorance of the scope of the Act and what the Act was designed to achieve. (For the history and purpose behind the GPA, see the Appendix.)

6. Section 2 of the Government Proceedings Act 1956 provides:-

“”civil proceedings” means any proceeding whatsoever of a civil nature before a court and includes proceedings for the recovery of fines and penalties and an application at any stage of a proceeding, but does not include proceedings under Chapter VIII of the Specific Relief Act 1950, or such proceedings as would in England be brought on the Crown side of the Queen’s Bench Division;”

7. In other words, “civil proceedings” under GPA is referring only to civil claims such as tort and contract, and does not include proceeding concerning public law issues or the exercise of public or governmental power, which are called ‘Judicial Review’ proceedings. In England, Judicial Review proceedings are, traditionally, started/brought in a specific Division of the High Court, i.e. on the “Crown side” of the Queen’s Bench Division of the High Court; and the orders made by this Division of the High Court are called ‘prerogative orders’, such as mandamus (to force a person or entity exercising public power to do an act), prohibition (to prevent a person or entity exercising public power from doing an act), certiorari (to set aside the decision of a person or entity exercising public power) and so on.

8. In Malaysia, Judicial Review proceedings could also be brought under Chapter VIII of the Specific Relief Act 1956 (“SRA”). The Order granted by the Ipoh High Court to purportedly restrain the Perak Speaker from convening the State Assembly meeting appears to be granted under Section 44(1) of the SRA, which is part of Chapter VIII of the SRA. Chapter VIII of the SRA includes:-

CHAPTER VIII – ENFORCEMENT OF PUBLIC DUTIES

“44. Power to order public servants and others to do certain specific acts.
45. Application how made and procedure.
46. Peremptory order.
47. Execution of, and appeal from, orders.
48. Costs.
49. Bar to issue of mandamus.”

9. Therefore, the application before the Ipoh High Court must be a Judicial Review proceedings, and therefore not within the meaning of ‘civil proceedings’ under the GPA.

10. In other words, by defining ‘civil proceedings’ as not including those “Crown side” proceedings, Section 2 of the GPA has expressly said that the GPA as a whole is irrelevant and not applicable when it comes to Judicial Review proceedings (‘Crown side’ prerogative orders) or applications under Chapter VIII of SRA.

11. The principle that “civil proceedings” under the GPA does not include Judicial Review has been confirmed by the Court more than 15 years ago in a landmark public law case decided by the highest court in England, the House of Lords, in M v Home Office [1994] 1 AC 377, [1993] 3 WLR 433, [1993] 3 All E.R. 537. Although this was a case from England, it was deemed so important that it has also been reported in the local Malaysian law reports as In re M (A. P.) [1993] 3 CLJ 567 (and cited by our own Federal Court recently in Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 5 CLJ 321), so there was really no excuse for any lawyer claiming to specialize in public law to be ignorant about it. The House of Lords in that case says @ In re M (A. P.) [1993] 3 CLJ 583b-f:-

“The language of s. 23 makes it clear that Part II of the Act does not generally apply to all proceedings which can take place in the High Court. In particular, it does not apply to the proceedings which at that time would have been brought for prerogative orders…

‘Civil proceedings’ includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the [Queen’s] Bench Division.

Proceedings for the prerogative orders were brought on the Crown side.”

12. This interpretation was strengthened by the House of Lords’ decision about 4 years ago in Davidson (AP) v Scottish Ministers [2005] UKHL 74. The highest court of England clarified the legislative purpose of the English Crown Proceedings Act 1947 (and hence the Malaysian GPA too, because the GPA was modeled on the Crown Proceedings Act 1947). Lord Nicholls of Birkenhead says:-

“15. In English law the phrase ‘civil proceedings’ is not a legal term of art having one set meaning. The meaning of the phrase depends upon the context. For instance, the phrase is often used when contrasting civil proceedings with criminal proceedings. So used, and subject always to the context, civil proceedings will readily be regarded as including proceedings for judicial review.

16. This usage was not intended in the 1947 Act. That is clear beyond doubt. Proceedings on the Crown side of the King’s Bench Division were the predecessors to applications for judicial review, and the definition of ‘civil proceedings’ in section 38 of the Act states expressly that ‘civil proceedings’ does not include proceedings on the Crown side. Thus section 21 was not applicable to Crown side proceedings.

18. Accordingly, with one immaterial exception in section 25, Crown side proceedings were not the subject of reform by the 1947 Act. The remedies available in Crown side proceedings were not affected by the Act. Prerogative writs and orders, including mandamus, had long been issued against officers of the Crown: see Lord Parker CJ in R v Commissioners of Customs and Excise, Ex p Cook [1970] 1 WLR 450, 455. The 1947 Act did not touch this jurisdiction.”

13. On the other hand, it should be noted that it would be improper and beyond the power of a civil court hearing a civil claim (of tort, contract and so on, which is not a Judicial Review application) to grant an ‘injunction’ to ‘injunct’ a person exercising public law power – such as the Perak Speaker in this case. This is because the Perak Speaker’s actions, even if wrongful, were not a private law contractual or tortuous wrong.

14. The only correct way to challenge the Speaker’s decision was through the public law Judicial Review proceedings (whether the challenge will succeed or not is a different matter, see below). This is a very elementary conceptual difference between public/administrative law and private/civil law, which the Judicial Commissioner and the lawyers acting for the Perak BN were surely well aware of. Therefore, there is no question that the application brought to stop the Perak Speaker from convening the State Assembly meeting must be a public law, Judicial Review proceedings, in which case the GPA was totally not applicable, including the Section which purportedly ‘requires’ a ‘public officer’ to be represented by the Sate Legal Advisor.

15. To sum up, it is my humble view that the Ipoh High Court was wrong in law to disallow the Speaker to engage his own lawyer in any public law proceedings, based on Section 24 of the GPA – or any other provision of the GPA for that matter.

16. As to the following argument:-

“According to Hafarizam, the grounds of judgment were based on the test of payment. “Although the speaker is not paid by the ordinary public services commission, he is paid under the consolidated fund which comes from the state so there is no issue that he is not a branch of the government.”

… But Hafarizam interpreted it differently. “We are not denying that the speaker is not a public servant as they come under JPA (Public Service Department). But the speaker is a public officer exercising public duty and has a public office so you are part of government.””

17. With due respect, such talks are misleading and conceptually ambiguous. If this logic holds water, the Separation of Powers could be simply destroyed by the bizarre ‘test of payment’ – because as a matter of fact, all 3 Branches of the Government are paid by the Consolidated Fund! Of course, because the money in the Federation/State Consolidated Fund simply means money which belongs to the Federation/State as a whole, but is ultimately controlled by the Legislature.

18. In law, the terms ‘public office’ and ‘government’ have specific and varied meanings depending on the applicable laws and contexts. It cannot be based on this completely unheard of ‘test of payment’. As Lord Nicholls of Birkenhead says in Davidson, para 15, “In English law the phrase ‘civil proceedings’ is not a legal term of art having one set meaning. The meaning of the phrase depends upon the context.”

19. In any event, it is very obvious that the State Legal Advisor, like the Federal Attorney General, sits in the State Cabinet/Executive Council (or below), i.e. s/he is a member of the Executive Branch of the Government. Therefore, since we have Separation of Powers in our system between the Legislative, Executive and Judicial Branches, it is unrealistic (if not unconstitutional) to expect the State Legal Advisor to act for the Speaker in a tussle between the Legislative and the Executive Branches of the Perak Government. The State Legal Advisor would be caught in a situation where s/he was forced to take side between his own Executive Branch and the opposing Legislative Branch. The State Legal Advisor could not be ignorant about this irreconcilable conflict of interests. (Putting aside the fact that the State Legal Advisor is at the same time also acting on behalf of the BN Executive Branch of the Government against the former Menteri Besar of Pakatan Rakyat, the Speaker’s coalition.)

20. Such a grave legal mess, if not quickly addressed or further clarified, has the potential to make our Courts a Commonwealth (at least) laughing stock.

Order under Section 44(1) of the Specific Relief Act 1956 against the State Speaker?

21. The Order granted to restrain the Perak Speaker from conducting the State Assembly meeting was purportedly made under Section 44 of the Specific Relief Act 1956 (“SRA”). Section 44(1) says:-

“Power to order public servants and others to do certain specific acts.

(1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or any court subordinate to the High Court:
Provided that – …”

22. It appears that the only relevant basis used by the lawyers acting for the Perak BN to justify the Order under this section was that the Perak Speaker was a “person holding a public office” by applying the innovative ‘test of payment’.

23. The meaning of this phrase has been recently decided by the highest court in Malaysia by reference to Article 132 of the Federal Constitution. In Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 5 CLJ 321, the Chief Justice says:-

“[15] The answer to the question depends on, first, who is a “person holding a public office”? In Loh Wai Kong v Government of Malaysia & Ors [1978] 1 LNS 106, Gunn Chit Tuan J (as he then was) held:

However, according to sub-section (1) of s. 44 of the Specific Relief Act 1956, an order can only be made against any person holding a public office … According to s. 3 of the Interpretation Act, 1967, “public officer” means office in any of the public services, and “public services” means the public services mentioned in art. 132(1) of the Federal Constitution. Therefore, 1 and 2 respondent in this case, namely the Government of Malaysia and the Menteri Hal Ehwal Dalam Negeri, Malaysia who are not persons holding a public office within the meaning of s. 44 of the Specific Relief Act have, in my view, been wrongly cited as respondents.

[16] In other words, since the Government of Malaysia and the Minister of Home Affairs are not “persons holding a public office”, an order pursuant to s. 44 of the SRA cannot be issued against them. Regarding the other two respondents, ie, the Ketua Pejabat Imigresen, Pulau Pinang and the Pegawai Paspot, Pulau Pinang even though they were held to be persons holding a public office, nevertheless the order prayed for was refused by the learned judge because the applicant had failed to fulfill the five conditions set out in the proviso to sub-s. (1) of s. 44 SRA.

[19] With respect, I do not agree with the approach and the interpretation given by the Court of Appeal. If words used in statutes are defined, it is that meaning that the court should give to them. It is not right for the court, purporting to give a “wider interpretation”, to give a meaning different from what is defined by statute.

[20] SRA does not define the words “public office”. However, “public office” is defined by the Interpretation Acts 1948 and 1967 (Act 388) (“IA”) as follows:

“public office” means an office in any of the public services;
“public officer” is defined as follows:
“public officer” means a person lawfully holding, acting in or exercising the functions of a public office.

[21] What is “public services”? Art. 132(1) of the Constitution provides:

132(1) For the purposes of this Constitution, the public services are:
(a) the armed forces
(b) the judicial and legal service
(c) the general public service of the Federation
(d) the police force
(e) (Repealed)
(f) the joint public services mentioned in Article 133
(g) the public service of each State; and
(h) the education service.

[22] Clause (3) provides:

(3) The public services shall not be taken to comprise:
(a) the office of any member of the administration in the Federation or a State; or

“Member of the administration” is defined in Article 160 as follows:
“Member of the administration” means, in relation to the Federation, a person holding office as Minister, Deputy Minister, Parliamentary Secretary and, in relation to a State, a person holding a corresponding office in the State or holding office as a member (other than an official member) of the Executive Council.

[23] It is clear that the Minister of Finance, Government of Sabah is “a member of the administration” but not a “person holding public office.” What it means, in relation to s. 44 SRA is that s. 44 SRA is not applicable to the appellant, meaning that an order under s. 44 SRA cannot be issued against the appellant. To that extent the High Court judge Gunn Chit Tuan J, was right in Loh Wai Kong (supra) regarding the effect of s. 44 SRA on the Government of Malaysia and the Minister of Home Affairs. In my view the learned High Court judge in the instant appeal was right in following Loh Wai Kong (supra) and the Court of Appeal was wrong in its interpretation of s. 44 SRA.”

24. In other words, in deciding whether the Perak Speaker (or any other person for that matter) was “a person holding a public office” (hence can be controlled by a High Court Order under Section 44 of the SRA), the answer lies in Article 132 of the Federal Constitution, and not some bizarre, hitherto unheard of ‘test of payment’.

25. So, regardless of what is stated in the Perak State Constitution or who pays for their lunches and official cars, based on the Federal Court’s decision in Petrojasa, an order under Section 44 of the SRA could not be issued against any member of the Perak State Executive Council (i.e. the Executive Branch) because they are not a “person holding a public office” (and therefore not subject to the Court’s control) under Section 44 of the SRA. If that is the case for the Executive Branch, why should the State Speaker – being the head of a different, sovereign Branch of the government – be a “person holding a public office” (and therefore subject to the Court’s control) under Section 44 of the SRA? If the answer is yes, it would turn the State Speaker into some kind of subordinate officer lower than the Executive and the Judicial Branches. Is the Perak State Constitution so peculiar?

26. As we have seen, the Federal Court in Petrojasa has ruled that the answer is to be found by referring to Article 132 of the Federal Constitution, which says:-

The public service shall not be taken to comprise -
(a) the office of any member of the administration in the Federation or a State; or
(b) the office of President, Speaker, Deputy President, Deputy Speaker or member of either House of Parliament or of the Legislative Assembly of a State; or
(c) the office of judge of the Federal Court, the Court of Appeal or a High Court; or
(d) the office of member of any Commission or Council established by this Constitution or any corresponding Commission or Council established by the Constitution of a State; or
(e) such diplomatic posts as the Yang di-Pertuan Agong may by order prescribe, being post which but for the order would be posts in the general public service of the Federation.

27. Therefore, reading Article 132(3) of the Federal Constitution in light of the Federal Court’s decision in Petrojasa, the Speaker of the Perak State Assembly is not a holder of a ‘public office’ or a ‘public officer’. As a result, an order under Section 44 of the SRA cannot be issued by the High Court against the Speaker of the Perak State Assembly. The Ipoh High Court was clearly wrong.

Privileges of the State Assembly – Court Cannot Inquire or Interfere

28. The Legislature and its Members – being the forum where our people’s representatives are allowed to express the voice the people without fear or favour – are given certain privileges and immunities from legal proceedings. That is why, for example, the Deputy Chief Umno, Y. B. Khairy Jamaluddin said this in response to the accusations made by DAP chairman Y. B. Karpal Singh in Parliament that UMNO Youth was responsible for sending bullets to Karpal Singh in February 2009:-

“Karpal should not hide behind parliamentary immunity to make accusations that had no truth and basis.”

(24 Hours For Karpal To Produce Proof On Bullets; Bernama, February 26, 2009)
http://www.bernama.com/bernama/v5/newspolitic.php?id=392618

29. Indeed, the august Legislature (Federal and State) could be said to be the Sovereign Branch among the 3 branches of Government, because the other 2 branches must carry out the wishes of the Legislature as expressed in a duly enacted legislation. Even though the Judiciary can still control the excesses of the Legislature, this could only be done by declaring that a particular legislation passed is invalid for being unconstitutional for contravening the supreme law – either the Federal of the State Constitution. How the legislature conducts its own affairs internally is, to be blunt, none of the Court’s business.

30. On this point, I can do no better than to quote N. H. Chan, a former Justice of the Court of Appeal:-

“The question is, can the courts decide on the validity of the proceedings in the Legislative Assembly?

The answer is staring right at us here in Federal Constitution. Article 72, Clauses (1) to (3) states:

“(1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

(2) No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the Legislative Assembly of any State or of any committee thereof.

(3) No person shall be liable to any proceedings in any court in respect of anything published by or under the authority of the Legislative Assembly of any State.”

So now you know from the Federal Constitution itself that the validity of the suspension of Zambry and his 6 exco members by the Speaker in the State Assembly cannot be questioned in any court.

Lord Denning tried to inquire into a private Act of Parliament on the ground that Parliament was misled by fraud but he failed. The case is Pickin v. British Railways Board [1974] A.C. 765. He recounted this in his book What Next in the Law at page 319:

“A little while ago there was a case where the British Railways Board got a private Act vesting a man’s land in the Board without payment. He alleged that Parliament had been misled by fraud. In the Court of Appeal we held that the judges could inquire into it. But the House of Lords overruled us. They held that no inquiry by the judges could be permitted.”

It is important to remember that the United Kingdom does not have a written constitution. What more when we have a written constitution which says that “the validity of any proceedings in the State Legislative Assembly shall not be questioned in any court”.

From what we have read from the newspapers it seems that there is an injunction against the Speaker. You may also wonder how an injunction can be obtained against the Speaker when our written constitution says that “no person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the Legislative Assembly of the State”.”

(How to judge the judge? By N. H. Chan, a former Justice of the Court of Appeal)
http://blog.limkitsiang.com/2009/03/06/how-to-judge-the-judge/

31. The Judge and the lawyers acting for BN here should therefore have borne in mind these fundamental concepts in Constitutional and Administrative law when dealing with this case.

Reform – Curtailing the Speaker’s Powers to Suspend Members

32. The Speaker of the State Legislative Assembly enjoys great power indeed. Sadly, the power could sometimes be abused.

33. Before the suspension of numerous Members of the State Legislative Assembly by the Perak Pakatan Rakyat Speaker in February 2009, on 25 April 2005, this awesome power of the Speaker has been used by the then Barrisan Nasional Speaker to suspend the then Selangor State Opposition Leader (now the Speaker) for 5 days. Y. B. Teng Chang Khim himself recounted this episode as follows:-

“The Speaker had repeatedly, for at least not less than 4 times, pronounced in the House in the morning session of the meeting on 25.4.2005 that I had been suspended for 3 days for the alleged offence. However, immediately after the meeting resumed in the afternoon, he announced that I had been suspended for 5 days. How could a judge pronounce an increased sentence on an offender for the very same offence? It is also a cardinal rule in law that a judge becomes functus officio after pronouncing the sentence which means he ceases his function as a judge when a sentence is passed. This is evidently another instance of disregard to rule and abuse of power by the Speaker.

Of course, under the Standing Order, if the Speaker deems the suspension of 5 days on a member is not sufficient, there is a provision under Rule 44(3) of the Standing Order that empowers the Speaker to name the member (in the Assembly meeting, a member can only ordinarily be called by the name of his constituency he represents) and followed by the motion from the frontbenchers to suspend that member for a period of time exceeding 5 days. This procedure was not complied with. Thus, the increased suspension of 5 days was null and void.”

(Press Statement by Y. B. Teng Chang Khim)
http://www.dapmalaysia.org/all-archive/English/2005/Aug05/bul/bul2773.htm

34. Nonetheless, the ‘legality’ or otherwise of the then Selangor Speaker was never questioned in Court by the then State Opposition, perhaps because they were well aware of, and/or chose to respect, Article 72 of the Federal Constitution.

35. No doubt, the power could be used undemocratically to oppress the minority/opposition – even by denying the leader of the minority/opposition from attending/speaking at the Assembly, as what happened in Selangor to Y. B. Teng Chang Khim. (Subsequently, the majority of the Selangor State Assembly resolved on 1 August 2005 to further suspend the service of Y. B. Teng for a period of 6 months with all his privileges and allowances stripped of, after serving the original 5 meeting days suspension, and thereafter another 1 year suspension with all his privileges and allowances stripped of if he refused to apologise to the SSA at the end of the 6 month suspension.)
(DAP’s Teng slapped with six-month suspension, Malaysiakini.com, 1 August 2005)
http://www.malaysiakini.com/news/38501
(DAP Central Working Committee Resolution, 3 August 2005)
http://www.dapmalaysia.org/all-archive/English/2005/Aug05/bul/bul2786.htm

36. At the end of the day, as things stand today, only the people could punish such undemocratic actions of the State Speaker through the ballot box. It is not up to the Court to question his actions.

37. Indeed, after what happened in Selangor in 2005 and in Perak in March 2009, for the benefit of both the current Ruling Regimes and the Oppositions, there is a strong case to be made that our Federal and State Constitutions should be amended to stipulate that under no circumstances should a Member of Parliament or State Assembly be suspended from attending any sitting of the Legislature. (Perhaps with the only exception being that those who are guilty of violent or intimidating physical conduct should be suspended briefly for emotions to calm down (so that we do not become like the Legislative Assembly of Taiwan or South Korea), such as what happened in the Kelantan State Legislative Assembly in November 2007 when Datuk Nozula Mat Diah (BN–Paloh) challenged Mohd Zaki Ibrahim (PAS–Kelaboran) to a fist fight.)

(Near brawl at Assembly; The Star, Tuesday, November 27, 2007.)
http://www.youtube.com/watch?v=zWxVxYymnws&eurl
http://thestar.com.my/news/story.asp?file=/2007/11/27/nation/19585197&sec=nation

38. This is because by denying a Member the right to attend/speak is tantamount to denying the people represented by that Member the right to attend/speak. However unpopular, unwelcomed or non-mainstream is the Member’s opinion, s/he should never be denied the right to attend/speak because it is precisely a fundamental tenet of democracy and freedom that even the minority of 1 should not be denied the right to persuade the Assembly – and the people as a whole, by extension – to agree with his/her views. Otherwise, it defeats the whole purpose of having any legislative meeting and the Legislature would become a mere rubber-stamp.

39. A Member might be behaving inappropriately during the Assembly, such as making racist or sexist comments or simply by being drunk, but it is my humble opinion that a rude, obnoxious, ‘kurang ajar’, uncivilized or disrespectful Member should still not be suspended because ultimately, s/he shall be judged and shamed by the public opinion and be penalized in the ballot box for his/her antics. If however the people of his/her constituency still decide re-elect a ‘savage’ to represent them in the next election, then I suppose they deserve whom they elect, and may God helps us all.

40. Be that as it may, as our democratic system and the law stands now, however wrong the Speaker might have been, it is still not open for the Court to question the validity of his actions. The sovereignty and privileges of the Legislature as enshrined in the Federal Constitution must be respected, or else we would have chaos and a constitutional crisis – just like in Perak right now.

Appendix – Why the Government Proceedings Act 1956 was enacted as law?

41. Lawyers and laymen alike tend not to be fully aware about just how important the GPA is. The GPA is one of the statutes which could be said to be of ‘constitutional’ importance. It protects our fundamental rights (especially the right to private property) as citizens against our governments, and hence upholds the rule of law.

42. To understand why the GPA was passed, we can refer to the case law on the English Crown Proceedings Act 1947 (“CPA”), because the GPA was modeled on the CPA. Briefly stated, the CPA was passed to make it possible for an ordinary citizen to sue the Government for private law wrong (such as breach of contract or tort of negligence) just like suing another fellow citizen. (As opposed to suing the Government for public law wrong, by seeking prerogative orders in Judicial Review proceedings.)

43. Before the CPA, a citizen of England was unable to sue the British Government directly for private wrongs. The Government (or ‘Crown’) was considered as ‘above the law’ in that sense, because of the feudal myth that “the Crown could do no wrong”.

44. However, this did not mean that the citizen had no remedy in law at that time. The citizen could still ‘sue’ the Government for private law wrong (except tort) by a cumbersome procedure called the ‘Petition of Right’. This was considered highly unsatisfactory. Therefore, reforms were carried out to make it easier and possible for an ordinary citizen to sue the Government for private law wrong.

45. This was confirmed by our Federal Court in Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd [2008] 5 CLJ 321 @ para 70:-

“In Sabil Mulia (M) Sdn. Bhd. v. Pengarah Hospital Tengku Ampuan Rahimah & Ors [2005] 2 CLJ 122, the Court of Appeal at p. 131 stated:

We now turn to consider the position after 1948. It is axiomatic the Crown Proceedings Act 1948 was passed to improve the position of the citizen vis-a-vis his or her rights against the Crown. As Professor Wade in his article ‘Injunctive Relief against the Crown and Ministers’ [1991] 107 Lq R 4 at 6 says:

The Crown Proceedings Act 1948 was a remedial statute, designed to put the Crown, so far as it could properly be done, into the position of an ordinary litigant, so that justice could be done without obstruction by the Crown’s ancient immunities. As Lord Jauncey said in British Medical Association v. Greater Glasgow Health Board [1989] AC 1211 (where, incidentally, Lord Diplock’s Town Investment (Town Investment Ltd. v. Department of the Environment [1978] AC 359) dicta were once again disregarded), ‘the general purpose of the Crown Proceedings Act was to make it easier rather than more difficult for a subject to sue the Crown,’ and the extension of immunities would ‘run wholly counter to its spirit’.”

46. A more detailed discussion of the history and purpose of the CPA is found in the House of Lords case of Davidson (AP) v Scottish Ministers [2005] UKHL 74, where Lord Rodger of Earlsferry said:-

“60. …[the Crown Proceedings Act 1947 was] an Act whose general purpose was “to make it easier rather than more difficult for a subject to sue the Crown”, as Lord Jauncey of Tullichettle observed in British Medical Association v Greater Glasgow Health Board 1989 SC (HL) 65, 95.”

62. The 1947 Act was passed to try to cure various problems which litigants and practitioners had been experiencing. Some 60 years later, it is not easy to see those problems as they must have appeared to people at the time… But, perhaps, as good a starting point as any is the report of the Committee on Ministers’ Powers (“the Donoughmore Committee”) (Cmd 4060) published in 1932.

64. … at p 112, they confessed that “under the rule of law in England the remedy of the subject against the Executive Government is less complete than the remedy of subject against subject.” They then identified three “main defects” in the subject’s remedies against the government in England: (a) that, owing to the peculiar procedure in cases in which the Crown was a litigant, the subject was to some extent placed at a disadvantage; (b) that there was no effective remedy against the Crown in the county court and (c) that the Crown was not liable to be sued in tort.

65. As this account shows, the committee dealt separately with Crown side proceedings and other proceedings against the Crown. The three “main defects” concerned proceedings other than Crown side proceedings. Except in relation to tort, the defects were procedural. For instance, a litigant might have a perfectly good claim in contract against the Crown but he had to proceed by the cumbersome petition of right procedure…

67. In the 1947 Act Parliament set out, inter alia, to remedy the three “main defects” identified by the Donoughmore Committee. Part I deals with substantive law, Part II with jurisdiction and procedure in general. Part III covers judgments and execution, while Part IV contains miscellaneous and supplemental provisions…

72. The defects identified by the committee concerned the way that the Crown was treated differently from its subjects in cases where it could have been expected to be subjected to the same liabilities and procedures as a subject. So, for example, if I had a contractual claim against a shopkeeper, I could sue him by a relatively straightforward procedure in the county court or sheriff court, if I wished. But if my claim was under a contract with the Crown, in England I would have to bring petition of right proceedings in the High Court, while in Scotland I could not sue in the sheriff court. In both jurisdictions the Crown was not liable for acts which would have made an individual liable in tort or delict. Since, as I explain below, liabilities between individuals can be conveniently described as private law liabilities, what the Committee were highlighting in this part of their report were problems which litigants faced in bringing liability home to the Crown in the realm of private law. What the 1947 Act did, therefore, was to complete the programme of reform, begun with the 1938 legislation on Crown side procedures, by making changes in the substance of the private law and in the procedures used to sue the Crown in relation to its private law liabilities. In the words of a contemporary author, “On 1 January 1948, with the commencement of the Crown Proceedings Act 1947, there started a new era in Crown law. The subject has been given a remedy as of right against the Crown, both in tort and in contract, and the procedure governing litigation between subjects has, so far as possible, been applied to civil proceedings by and against the Crown”: R McMillan Bell, Crown Proceedings (1948), p iii.

73. Reform of the private law and its procedures in respect of the Crown was no insignificant matter. By concentrating on judicial review, lawyers and judges today may tend to forget the historical importance of the law of tort or delict as a way of vindicating the subject’s rights and freedoms.”

47. Clearly, the House of Lords in Davidson had made a very clear distinction between ‘public’ and ‘private’ laws when discussing the CPA. The CPA was only enacted to reform the private law obligations of the Government and did not deal with the public law obligations of the Government (in Judicial Review proceedings). Therefore, to apply the GPA to a Judicial Review proceedings in the way that the Ipoh High Court seemed to have done clearly shows that the Judge and the lawyers did not fully comprehend what the GPA was all about.