V Sivakumar remains the lawful speaker of the Perak state assembly as his “removal” during the shambolic May 7 legislative sitting was made before the Raja Muda Nazrin Shah proclaimed the assembly “opened,” according to a legal opinion prepared for the Pakatan Rakyat (PR) man. The legal opinion points out that the legislative assembly summoned under Article 36(1) of the Perak state constitution could not transact any business or pass any resolution prior to the royal address which was only delivered on May 7 between 3.16 pm and 3.47 pm. “Thus any purported resolutions or decisions taken before the royal address are null and void and of no legal effect,” states the opinion prepared by constitutional expert Tommy Thomas and obtained by The Malaysian Insider.
Thomas, considered Malaysia’s leading constitutional lawyer, had been also engaged by Sivakumar to represent him in his legal disputes with Datuk Dr Zambry Abd Kadir over the validity of the suspension from the assembly of the Barisan Nasional (BN) mentri besar. In the legal opinion prepared for Sivakumar, Thomas compared the significance in law of the commencement of the legislative sitting to that any meeting of organisations or companies and even clubs. “Until the chairman of the meeting calls it to order the meeting cannot transact any business. “The law of meetings reflects common sense. It is therefore not surprising that parliamentary practice and usage is also similar.”
On May 7, Sivakumar, as speaker, had refused to call the sitting to order until Zambry, six other assemblymen from BN whom he considered suspended and three BN-friendly independents whom he considered to have quit their seats, left the chambers. Pandemonium erupted after that which resulted in BN assemblymen convening the assembly with the help of deputy speaker Hee Yit Foong who declared Sivakumar was no longer the speaker. Datuk R Ganesan was subsequently declared speaker, while Sivakumar was forcibly dragged out of chambers by unidentified men. Ganesan subsequently called the sitting to order and Raja Nazrin delivered his royal address before the meeting was adjourned sine die.
Thomas’s legal opinion could become significant and form the basis of any challenge by Sivakumar over the legitimacy of Ganesan’s appointment. If last week’s ruling by the high court here declaring PR’s Datuk Seri Nizar Jamaluddin the rightful Perak MB stands, then it would follow that the May 7 assembly would be considered null and void as well. But if Zambry, who has obtained a stay, wins his appeal, he would need Ganesan as the speaker to ensure he is not booted out of chambers and can muster the necessary backing to win a confidence vote. Thomas, in his legal opinion, argues that when Sivakumar was “removed” on the morning of May 7, the assembly was not legally sitting.
The constitutional lawyer also points out that in his opinion there are no standing orders which are applicable to the May 7 sitting. He cites two standing orders – 1 and 13 - dealing with proceedings and he argues that they are only relevant to either the first sitting of the first session of the assembly and for ordinary sitting days. The May 7 event, he points out, was supposed to be the first sitting of the second session. As a result, Thomas contends reliance can be placed on Standing Order 90 which allows Commonwealth parliamentary practice and usage to be used as guidance where standing orders are silent. To support his argument, he cites English constitutional theorist Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, which states:
“In every session but the first of a Parliament, as there is no election of a speaker, nor any general swearing of members, the session is opened at once by the Queen’s speech, without any preliminary proceedings in either House. Until the causes of summons are declared by the Queen, either in person, or by commission, neither House can proceed with any public business.“This practice is observed because no business can be transacted until parliament has been opened by the Crown.” Thomas also goes on to cite Halsbury’s Laws of England, a definitive treatise on English law, which states: “Neither house of parliament can proceed with any public business until the session has been opened by the monarch in person or by Lords Commissioner acting on her behalf.”
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