Umno did not win, Sivakumar did not lose

By Hanipa Maidin
Mohamed Hanipa Maidin sits on the Pas central committee and is the Pas legal adviser. He is also a lawyer who blogs at peguampas.blogspot.com

APRIL 19 – By now I believe many have heard ad nauseam Umno’s version of the true nature of the Federal Court’s decisions on April 16, 2009. This version proclaims that Datuk Zambry Abdul Kadir and his six exco members can now enter the Perak Assembly without any hassle.

Out of desperation, Umno may say anything except the truth. What are the core truths of the Federal Court’s decisions? Let us share the truths which have been conveniently buried by Umno.

The truth is that out of 10 court orders sought by Zambry and his six exco members, only two orders were granted by the Federal Court. I dare to say that these two orders are ineffective and inconsequential in nature. They are not, in any manner, capable of reining in the speaker’s power.

They merely declared that V. Sivakumar’s decisions on Feb 18, 2009 was null and void. I strongly believe that these orders will be met by the following response by Sivakumar: “So what”?

The truth is that the Federal Court did not grant the other eight orders prayed for by Zambry and his six exco members in their summons against Sivakumar. These eight orders have been hidden from the public knowledge.

The truth is that, despite the fact the court invalidated the decision of Sivakumar in suspending Zambry and his six exco members from attending the Assembly for a period of 18 months and 12 months, respectively, the Federal Court also at one fell swoop refused to grant a declaratory order allowing Zambry and the six exco members to attend and participate in all of the proceedings in the Assembly.

Without this crucial court’s order, one fails to understand the basis on which Zambry’s lawyers have formed an opinion that Zambry et al could enter the Assembly without any legal impediments blocking their entry.

The truth is that Umno miserably failed to state that the Federal Court also declined to grant an order declaring that the act of Sivakumar in suspending and prohibiting Zambry and his six exco members from attending the Assembly was contrary to law.

The truth is that the Federal Court rejected a declaratory relief which says that the Perak State Assembly was not bound by Sivakumar’s decision in suspending Zambry and his six exco members.

The truth is that, by not granting all the 10 orders sought by Zambry et al, the Federal Court implicitly acknowledged the doctrine of trias politica (the French term for separation of powers) that is the Speaker is still the final arbiter as far as the internal affairs of the State Legislative Assembly are concerned.

Whatever grouse we may have against the Federal Court judges, the fact that only two inconsequential orders were granted by the court demonstrates that the court still exercised “judicial self-restrain” in questioning any decision of the another branch of the government’s arms i.e the legislative body.

In the circumstances, the court deserves a bit of respect for at least exhibiting judicial minimalism when confronted with the issue of questioning the speaker’s powers.

The decision would, of course, be for the court to follow, thus creating certainty, the stare decisis (the past judicial precedents).

There are at least five judgments of the Malaysian courts, given by judges of impeccable integrity, which in unison held that any decision by the speaker or legislative body would not be amenable to judicial intervention.

The truth is that, notwithstanding Umno’s attempts to have the sitting under the tree declared invalid by the court, this too was also not entertained by the latter.

Thus no declaration has been made to date by the court that such a sitting was invalid. It follows therefore that the sitting was valid until proven otherwise.

The truth is that Nizar’s suit against Zambry has nothing to do with Zambry’s suit against Sivakumar. The two suits are poles apart.

Thus a suggestion by Umno’s lawyer, Datuk Hafarizam, that Nizar should consider withdrawing his suit against Zambry, was clearly a preposterous proposition unsupported by any legal foundation.

Lastly, the truth is that by filing the suit against the speaker, Zambry and his six exco members have allegedly infringed section 10 of the Legislative Assembly (Privileges) Enactment of Perak 1959 in that they had given evidence outside the Assembly in respect of the contents of documents laid before the Assembly or any committee without special leave of the Assembly.

Whether such an act by Zambry et al was tantamount to abuse of their privileges and whether such an abuse may attract a new sanction by the speaker remains to be seen.