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- Perak Crisis: Sivakumar 21/05/2009
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- NIZAR IS PERAK MB
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Dr Mansor Othman
Pakatan Rakyat leaders last night told Penanti voters to send a strong signal against what they described as the despotic rule of Barisan Nasional (BN) by “slapping” them with more votes for the opposition pact. This became the central theme in the speeches of all three Pakatan giants at a ceramah here, making their intentions clear that there is no slowing down in campaigning despite a sure win catapulted by BN’s absence in the by-election. Just like in his speech on Saturday, opposition icon and PKR de facto leader Datuk Seri Anwar Ibrahim said BN’s absence is no cause for celebration. The battle against BN, Anwar said, now lies in mathematics.
He reasoned although the ruling coalition has no presence here in Penanti, BN will do its best to dent Pakatan’s popularity by reducing the majority votes it had garnered in the 2008 general election. This will be done through “proxies”, said Anwar in an apparent reference made to the three independent candidates Pakatan will face in the fight for the Penanti state seat.“We must send a strong protest signal against BN that the people will no longer tolerate their despotic rule. “And the way to do this is to increase voter turnout and increase the majority votes from what we gained in the last general elections,” he said.
Fellow Pakatan leaders, PAS president Datuk Seri Hadi Awang and DAP stalwart Lim Kit Siang also urged Penanti voters to come out in huge numbers and increase the opposition’s majority in seven days time. “Nevermind that this by-election is not as vibrant as other by-elections. “Penanti is important because the increase of votes for Pakatan would send a strong signal that the people are rejecting the BN government,” Lim told the crowd at the ceramah.
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.”
Parti KeAdilan Rakyat's (PKR) Dr Mansor Othman will face three independents in the Penanti by-election this May 31 after one was disqualified. The Barisan Nasional has opted out of the by-election in Penanti, within PKR de facto leader Datuk Seri Anwar Ibrahim's Permatang Pauh political fortress, calling it an abuse of the electoral process. Mansor and the four independents, Aminah Abdullah, Mohd Saberi Osman, Nai Khan Ari and Kamarul Ramizu Idris, filed their nomination papers at the youth skills complex in Bukit Mertajam this morning.
Returning officer Roslan Yahaya declared all eligible except for Saberi after the objection period ended at 11am. There were six objections against him. Roslan did not disclose the reason why Saberi was disqualified. According to PKR vice-president R. Sivarasa, PKR's objection that Saberi was a bankrupt was accepted by the Election Commission and that was the reason the independent hopeful was not allowed to contest. With Barisan Nasional out of the picture, PKR took premium space in Penanti as supporters and flags crowded the road to the nomination centre. Mansor was accompanied by Pakatan Rakyat leaders as he made his way to the nomination centre just before 8am.
Among the Pakatan leaders who arrived later to join Mansor was Anwar, Selangor Mentri Besar Tan Sri Khalid Ibrahim, ousted Pakatan Rakyat Perak Mentri Besar Datuk Seri Mohammad Nizar Jamaluddin and Azmin Ali. Penang Chief Minister Lim Guan Eng and his father, DAP veteran leader Lim Kit Siang, were among those outside the nomination centre.
The Barisan Nasional (BN) supreme council announced today that the party will not contest the Penanti state assembly seat in Penang, with Datuk Seri Najib Razak insisting it was a political ploy by Pakatan Rakyat (PR). The decision today came despite some pressure from former prime minister Tun Dr Mahathir Mohamad and his backers not to give PR and Opposition Leader Datuk Seri Anwar Ibrahim a free ride. The Penanti by-election was called following the resignation of incumbent assemblyman Mohammad Fairus Khairuddin, who had also quit as Penang deputy chief minister amid graft allegations he was later cleared of. The nomination day is on May 23 while polling is on May 31.
Justifying BN’s decision to stay out, Najib said the by-election was not caused by “provisions within the constitution.” “It is only a way for PKR to solve its internal problems,” he said. “BN prioritises service to the people and efforts to boost the economy. We will not dance to other people’s tune,” the prime minister insisted. Many see the Penanti polls as a sure win for PR and BN’s reluctance to contest will fuel the perception that it wanted to avoid yet another electoral defeat in Peninsular Malaysia where it has lost all four by-elections since the 12th general elections in March 2008.
But Najib insisted that there was no reason for BN supporters to be disheartened as this was not the first time BN had not contested an election and that “there has been no such games being played like this until now.” In an immediate reaction, PKR vice-president Azmin Ali accused BN of looking for excuses not to contest any elections at this point as it was afraid to face the people. “They are trying to find a way out with any flimsy excuse. In actual fact, the people have lost confidence in BN and that is why BN does not have the courage to contest in Penanti nor in Perak,” he told The Malaysian Insider, referring to Umno’s reluctance to agree that a fresh election is the best way to solve the political impasse in Perak.
Datuk Seri Mohammad Nizar Jamaluddin is very much the man of the moment, judging from the rousing reception he got at a public forum here last night in remembrance of the tragic race riots that became a bloodbath 40 years ago. While his position as the lawful mentri besar (MB) of Perak is locked in a bitter wrangle in the Court of Appeal, there is no doubt as to his popularity with the public. The cheers, catcalls, whistles and applause sounded far louder and longer when he walked up to the podium than for Datuk Seri Anwar Ibrahim earlier when the Opposition Leader was opening the event.
Thousands turned up to hear Nizar speak at the city council civic centre, squeezing their rear ends onto narrow chairs in the packed hall, which normally seats about 1,000 people. Those who arrived late had to suffer the ignominy of sitting on the scruffy concrete floor or stand squished to the walls. They did not appear to mind at all; not even the ones dressed to the nines in formal jackets and bling. Nizar did not disappoint. The third last speaker for the evening, he immediately launched into a scathing attack on the Barisan Nasional (BN) government, singling out Umno for the most blistering criticism. The newly-elected MP for Bukit Gantang accused the dominant Malay party of creating a bogeyman out of the May 13 1969 incident.
“Umno is still using the May 13 incident as a tool to scare Malaysians,” he thundered. Nizar claimed that the residual fear from the incident was based on fiction, created by the ruling parties to continue the colonial tactic of divide-and-conquer to exert control over the populace. “Umno tells people: ‘Our closest enemies are the Chinese’,” he said, to demonstrate what he claimed was the party’s tactics in inciting hatred among the different races. He alleged the other race-based components of the BN coalition adopted similar measures. He acknowledged that even he had been duped by the colonialist scare tactics in the past “but no more”.
“The 13th May incident was sparked deliberately by Umno,” he said, pointing out that there was no such racial disturbances in PAS-dominated areas. Fast-forwarding it to the present day, Nizar emphasised that the Islamist party’s administration is based on universal values such as justice for all and trust. He further highlighted how peaceful Perak was during its brief 10-month tenure in governing the state, compared to the BN state administration in Terengganu, claiming there existed a deep-seated quarrel inside the party that continued to the present day as the BN politicians squabble over trivial pursuits.
Nizar called on the audience to shake off the metaphorical yoke keeping their heads constantly bowed. “Are we going to let this continue?” he questioned. “No!” the crowd thundered in reply. Smiling broadly, he echoed Anwar’s calls for statewide elections in Perak to solve the current crisis. This, he said, would bring about a promising new political landscape in Malaysia.
Perak continues to be in a state of confusion as Pakatan Rakyat's (PR) Datuk Seri Nizar Jamaluddin maintained today he was still the legitimate mentri besar despite a Court of Appeal decision this morning which granted a stay on a High Court declaration yesterday. While stating that the stay of execution raised more questions than answers, Nizar suggested that the only logical conclusion was that he was still mentri besar. Barisan Nasional's (BN) Datuk Seri Zambry Abd Kadir had earlier claimed he was now the rightful MB after the court had granted him a stay pending his appeal on the decision by the High Court yesterday that Nizar was and is the MB.
But at a press conference this evening with two lawyers, Nizar's counsel Leong Cheok Keng and one of his state executive councillors Thomas Su, Nizar insisted that despite the stay, his government was still legitimate. Su had said that while PR accepted the decision of the Court of Appeal, they were unsure as to what it really meant. But Nizar reasoned that as the stay did not mean that Zambry had been affirmed as MB nor was it possible for there to be no MB, the only option left was that he remained the rightful mentri besar. "Since I was sworn in on March 12, 2008, I have been the mentri besar until now," Nizar said. "The High Court ruling was not an order to act which can be stopped by staying it. It is not like paying damages where you can halt the payment until a decision has been made," explained Leong.
"This is a declaration that Nizar has been the legitimate MB all this while. How can you temporarily vacate him from office?" he added. Leong also said that he has never come across a stay of execution over a declaration, something which High Court Judge Datuk Abdul Aziz Abdul Rahim had also expressed after delivering his verdict yesterday. "It is impossible not to have a mentri besar at any point of time. There cannot be a gap," Nizar added. Su insisted that Zambry could not be MB as the stay did not overturn the High Court's ruling, and hence, this meant that Nizar was still the mentri besar.
KUALA LUMPUR, May 11 — Pakatan Rakyat’s Datuk Seri Nizar Jamaluddin is the real mentri besar of Perak , the Kuala Lumpur High Court decided today. Judge Datuk Abdul Aziz Abdul Rahim said in his ruling that the only way the mentri besar can be removed is through a vote of no-confidence that must be taken in the state legislative assembly. “Once a mentri besar is appointed, he is answerable only to the assembly,” he told the court, noting both political factions, PR and Barisan Nasional (BN) each had an equal number of 28 seats in the Perak State Assembly.
“Therefore, based on democratic practice, any measure of loss of confidence in the mentri besar of Perak leadership should be taken by vote of no-confidence against him on the floor of the state legislative assembly. Only in this manner can the mentri besar be forced to resign,” he added. The judge noted that the provisions under Article 16 of the Perak Constitution – specifically under Articles 16(2) and 16(6) respectively – dealing with the ruler’s royal right to appoint an MB and to dissolve or not to dissolve the assembly were “plain and obvious” and did not give the ruler any right to sack the MB.
Justice Abdul Aziz pointed out that because of the “lacuna” (Latin for “loophole”) in the law, the court could not read it to mean something that did not exist. He added that the only way to correct the loophole was for the law to be amended. He also noted Nizar was not challenging the Sultan’s royal rights as a constitutional monarch but was suing Zambry for usurping his post as MB when he had not quit or been dismissed by the assembly. Turning his attention to Zambry, the respondent in the lawsuit, the judge explained there had been a clear way out.
“If the respondent’s claim in this case is truly undeniable, that he has 31 majority, after the three ADUN expressed support, commanded the confidence of the majority and His Royal Highness had refused to consent to the request of the applicant to dissolve the assembly, why the BN did not request His Royal Highness to summon the assembly for a special sitting so that a motion of no-confidence can be made to pass against the applicant?” quizzed Justice Abdul Aziz. “That would have been in accordance with the democratic process,” he highlighted.
The High Court also rejected an oral appeal from Barisan Nasional’s (BN) Datuk Seri Zambry Abd Kadir to suspend the declaration as he was planning to file an appeal with the Court of Appeal in Putrajaya. But Justice Abdul Aziz told Zambry’s chief counsel Datuk Cecil Abraham he could still make a written application to the High Court after checking with the authorities. Nizar’s chief counsel Sulaiman Abdullah explained to reporters later that if the High Court had granted Zambry’s request for a stay of the declaration, Nizar would not be able to immediately seek an audience with the Sultan and as the lawful MB ask for a dissolution of the assembly.
In an extraordinary day that was part wrestling match, part democratic process, Malaysia’s governing party appeared to retake control of a major state legislature yesterday when a group of unidentified men dragged the assembly speaker out of the hall and escorted the governing party’s choice to the empty seat. The bare-knuckled proceedings, in the state of Perak, underlined the continued deep and bitter divisions between the country’s embattled governing party and a resurgent opposition. But they also showed the limits imposed by technology on the mildly authoritarian ways of Malaysia’s government.
Reports from the assembly hall streamed out over mobile phones, the Internet and Twitter. Khalil Idham Lim, an opposition assembly member, blogged throughout the heated exchanges and posted pictures, including one of the speaker being hauled away. Malaysia’s independent news websites offered minute-by-minute updates. “If this event had taken place 10 years ago, people might never have known what really transpired inside the assembly,” said Ibrahim Suffian, director of the Merdeka Centre, an independent polling agency. The country’s newspapers and television stations are closely monitored by the government and generally toe the line of the governing party, Umno. But high-tech gadgetry is widespread in Malaysia, which is home to many factories that make components for mobile phones and computers.
“This is really going to strain the legitimacy of the state government,” Ibrahim said. “Fair-minded people will find it very difficult to accept the way in which they took over.” Malaysiakini.com reported that at 12.41pm “plainclothes personnel” dragged out the speaker, V. Sivakumar. “It cannot be ascertained if these were police personnel,” the website said. “Sivakumar resists and shouts, ‘I am the legal speaker. Why am I being treated like this?”’ the site reported. At least eight opposition elected representatives who had come to support Sivakumar were arrested by the police as well as about 60 other opposition supporters, according to the reports by news websites and news services. Many websites showed photos taken by mobile phone of the elected representatives being led away in handcuffs.who love democracy but also shows that the legislature is in danger," said Nga, reiterating his stand that the state assembly should be dissolved.
Perak’s constitutional and political crisis remains no closer to a resolution even after some semblance of order was restored for Raja Nazrin Shah to deliver his royal address. Pakatan Rakyat’s (PR) Datuk Seri Nizar Jamaluddin is emphatic in his assertion that the sitting today was null and void. Barisan Nasional’s (BN) Datuk Dr Zambry Abd Kadir, the man appointed mentri besar by Sultan Azlan Shah in the February power grab, has pinned the blame for the fiasco on PR. More legal challenges and political maneuverings can be expected. But both BN and PR lawmakers are likely to agree on one point — the bedlam which the Perak state assembly had descended to today would have done little to restore the damage inflicted upon the different institutions of government in the state.
After a morning of chaos marked by scuffles in the assembly, and the arrests of dozens of PR politicians and activists on the streets outside the state secretariat, a semblance of order was restored to allow Raja Nazrin to deliver his royal address. R Ganesan, the BN man who was made the speaker after the PR appointed V Sivakumar was forcibly removed by plainclothes policemen, then adjourned the sitting sine die. Ganesan was appointed earlier by BN lawmakers who held their own sitting in a corner of the assembly because Sivakumar had refused to vacate his seat. The appointment of Ganesan was presided over by Hee Yit Foong, the deputy speaker and one of the three assemblymen who have become “BN-friendly” independents.
It is almost certain that PR lawmakers will challenge the appointment because Sivakumar had earlier announced his rejection of a motion tabled by Zambry to have him removed. But crucially, the appointment and removal occurred before Raja Nazrin had declared open the sitting. The Perak Regent had earlier entered the chamber at 3pm, five hours late, and spoke to Nizar and the DAP’s Datuk Ngeh Khoo Ham before starting his address. Nizar had requested the police to leave the chamber and later told all PR lawmakers to take their seats. The rival assemblymen had been engaged in a shouting match even as Sivakumar was taken out of the assembly hall. PR assemblymen shouted at the police to leave the House when they moved in.
The Coalition for Free and Fair Elections, Bersih, today called on Malaysians to protest the power grab in Perak and put on a show of civil disobedience by wearing black on May 7 in conjunction with the sitting of the state assembly. In a press conference today, Bersih accused Prime Minister Datuk Seri Najib Razak of orchestrating the political coup in Perak and lambasted him for allegedly failing to keep his promise made under his 1Malaysia philosophy which puts people first, saying that putting people first would mean giving the voters of Perak the chance to determine the state government.
Taking a leaf from other civil obedience movements such as those organised by Mahatma Gandhi, Martin Luther King and even Umno’s “berkabung” movement to oppose the Malayan Union, Wong Chin Huat, a spokesman for Bersih, urged Malaysians who oppose the power grab to “let everyone see a sea of black walking into an office, market, mosque, temple, church, college, park, bus... let us be united in one black colour to show the world that the 1Malaysia under Najib Razak is 1BlackMalaysia living in darkness.” Bersih also criticised the BN for practising “old politics” and trying to clamp down on media coverage and peaceful gatherings.
The Perak government had initially allowed only selected media to cover the assembly sitting. However, the decision was later reversed by Perak Mentri Besar Datuk Zambry Abdul Kadir. The police have also warned political parties against organising mass gatherings in front of the state secretariat. Teo Nie Ching, DAP’s federal legislator from Serdang, says that she was queried by the Police Special Branch after she tried to organise a bus to ferry supporters to Ipoh and expressed her disappointment with the Special Branch.
PAS leaders broke their silence on the religious conversion issue today and attacked the cabinet's recent decision for betraying Islam as the controversy continued to divide Malaysians. Conservative Muslim groups have already condemned the government for decided on its own that children should be raised in the faith of their parents while they were married even if one spouse becomes a Muslim. A number of PAS leaders joined in the chorus of dispproval, saying the cabinet should have consulted with various Islamic institution like the Conference of Rulers, the country's supreme authority on Islamic matters, and the Muslim Lawyers Association before making such a decision.
The cabinet announced its decision recently in a bid to resolve the custodial issue surrounding Indira Ghandi, a Hindu, and her ex-husband who had converted to Islam. Speaking to The Malaysian Insider, Mahfuz Omar, a PAS parliamentarian, said the government in making appeared to have bypassed and disrespected the country's rulers and Islam in general. "By making such a decision without having first consulted the Conference of Rulers, the BN government has shown no respect towards the country's rulers. They are the country's supreme authority in Islamic matters. "This means they have directly ignored the role of the country's rulers. They are the 'penderhaka' (traitor) and by doing so, they have betrayed Islam and the Muslim community of this country," he said.
Mahfuz added that the government had also handled the matter hypocritically. "In the past, they have repeatedly said that whatever the problem is, we can solve it trough the proper channel which is the courts. But here we have the government totally ignoring the decision of the court." When asked if he thought it was right for the Syariah court to decide, without consent, that the children of Indira should be converted to Muslims now that their father had done so, Mahfuz said he believes that the capability of the Syariah court to be just in the matter should not be questioned.
"I believe the Syariah court is and has been capable of handling such matters justly," he said and added that he also believes that the parents should have the right to decide on the religion of their children. Mahfuz' argument is backed by a fellow PAS leader, Khalid Samad, who said the decision made by the government had disrespected the country's judiciary system. Khalid who is MP for Shah Alam said the government had denied the judiciary its innate authority by overturning the decision of the court which had 'legally' converted Indira's children to Muslims.
He also said that such 'automatic' decisions would not help solve the conversion problem and urged the government to seek a way to provide a more just solution for all the parties involved in the matter. "No automatic decision (as made by the government) should be acted upon without detailed discussion on the problem first. "The children must be given the access to both views and they should be given the right to decide on which faith they wish to follow," he said. Both the Syariah and civil courts must be able to deliver justice to all the parties involved, added Khalid, who believes that the two channels are the best avenue to solve such problems.
Kanta Media kali ini membincangkan isu Peraturan Luar Biasa SPR Bagi Pilihanraya Kecil Penanti. Panel jemputan kali ini adalah:
YB Nik Nazmi Nik Ahmad- ADUN Seri Setia
YB N.Gobalakrishnan- Ahli Parlimen Padang Serai
Faisal Mustafa- Setiausaha Sekretariat Bersih
Pakatan Rakyat (PR) slammed the Election Commission (EC) for its decision to stop political parties from using canvassers at operation centres near polling stations. PR leaders are requesting a meeting with the commission next week to urge the EC to reconsider its decision. The EC yesterday said it would enforce the ban, which it claims is in accordance with the Election Offences Act, during the Penanti by-election scheduled for May 31. “This is shocking, during our meeting with the EC last week, we raised our objections and presented our arguments. We were under the impression that they have accepted our case,” PR parties were also asked to stop canvassing activities outside polling stations.
On canvassing Mustafa said the law only prohibits party symbols from being put up and limits campaigning to an area not closer than 50 metres from the polling station. He also said that the operation centres set up by political parties were meant to assist voters and the EC to ensure a smooth polling process. “It is not consistent with the law and more shockingly it is against their stand,” said PKR vice president Sivarasa Rasiah who was also present, referring to a letter issued by the EC allowing political parties to set up operation centres outside polling stations.
The letter from the then EC secretary Datuk Wan Ahmad Omar was addressed to state election directors, where he said only new centres are not allowed to be set up on polling day. Sivarasa also said that the right to solicit and persuade voters is guaranteed by the law as long as it was done 50 metres from polling station. He clarified that the Election Offences Act only prohibits house to house visits and the interviewing of members of the public on polling day.
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