V. Sivakumar’s constitutional expert

Announcement : I accidentally clicked the ‘comment off’ button when I posted this article. Have made the correction. 

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The situation in Perak is becoming more absurd by the day. Aduns from Pakatan Rakyat meet under the tree? Now I am sure there are a saner approach to deal about this. I am surprised that the Pakatan Rakyat leaders could not see how ridiculous they have become. Now, I am just highlighting this fact so that those leaders can reflect back on how they have behaved in the past month or so and modulate their activities a bit more.

A day after the swearing in of Dr Zambry as the Menteri Besar, Mohd Nizar called a meeting dubbed the ‘special exco meeting’ on that Saturday morning. They passed few motions on that day, among others, to bring budget airline Firefly’s service to Sultan Azlan Shah’s airport.

It was confirmed that the State Secretary did not attend that meeting. Now how could the motions be put into effect if the State Secretary did not attend that meeting? The State Secretary by then had to report to Dr Zambry the moment the new MB was sworn in. Now, Nizar knows that the ‘special exco meeting’ that he chaired will going to be redundant. It is as irrelevant as the points in the show ‘Whose Line Is It Anyway’. But he went along with it anyway? Why?

Just to show solidarity maybe. It is ridiculous, yes. But it is perhaps more of a misplaced dignity. In 1955, Chin Peng continued his armed struggle with the Malayan Government under Tunku Abdul Rahman, Tun Tan Cheng Lock and VT Sambathan  just because to protect his misplaced dignity. His statement ‘for dignity of a man’ justifies the violence Malayan Communist Party has committed. In the end, the ordinary people suffered till the Hadyaai Peace Accord in 1989 was signed.

Nizar should never have followed this path. Having a pseudo House Assembly meeting under a tree will prove to be superfluous at best.

Tommy Thomas. Picture taken from The Nut Graph

In all honesty, I do not think Pakatan Rakyat will accomplish anything if they remain recalcitrant. The people will suffer in the end. They can wait for the courts to decide. Although I foresee that the courts will throw away their case since the Sultan had acted within his constitunional powers to elect Dr Zambry as the Menteri Besar.

Maybe V. Sivakumar’s legal counsel has the secret weapon to actually find any loopholes in the laws to actually annul the Sultan’s prerogative. But what I discovered today surprised me. V. Sivakumar actually employed a prominent lawyer by the name Tommy Thomas.

Today, The Star reported:

Dr Zambry vs Sivakumar: Legal team withdraws 

IPOH: Lawyers representing V. Sivakumar had to withdraw after the High Court here ruled that private lawyers could not represent the State Legislative Assembly Speaker in a suit filed by the Perak mentri besar.

Judicial Commissioner Ridwan Ibrahim ruled in chambers that private lawyers had no locus standi and could not represent the Speaker.

Ridwan said that under the Government Proceedings Act, the Speaker can only be represented by the state legal advisor, or lawyers appointed by the latter, because he is part of the state government.

Sivakumar’s lead counsel, constitutional expert Tommy Thomas, said they would await further instructions from the Speaker. He said they were refused speaking rights under Ridwan’s ruling.

Back in October 2008, Tommy Thomas (if it is the same person as above) was interviewed by The Nut Graph. This Constitutional expert reiterated time and time again in his interview that it is within the powers of the Monarchy to select who would be the Prime Minister.

Since the state constitution of Perak follows closely to the Federal Constitution, we can juxtapose what he is saying then to the situation we have now in Perak.

Among the pertinent points he said were:

“Then Abdullah would have to visit the palace and inform the king that he has lost the confidence of his own party, and so tender his resignation and the resignation of his cabinet. And the king will accept that.

When that happens, there is a vacancy in the office of the prime minister. At that point of time, the king has a free hand, because Article 43(2)(a) [of the Federal Constitution] — the appointing process — comes into play. The king can decide whether he calls the new leader of the Barisan Nasional (BN), which will be Najib; or somebody else who, in the king’s judgment, enjoys majority support in the Dewan Rakyat.”

Note he continued on to say that dissolution of the Parliament is not necessary:

“As outlined in Article 43(4), if Abdullah himself feels he has lost the majority support for whatever reason, including that he is losing support within Umno, he is entitled to visit the king [to do the following]. He can tell the king he wants to tender his resignation and that of his cabinet because he thinks he no longer enjoys the support of the majority of the lower house (the Dewan Rakyat), and ask for Parliament to be dissolved. And call [for] elections.

He is entitled to ask [which is one of his prerogatives as sitting prime minister]. But it is the king’s prerogative whether to say yes or no. The king can take into account the interests of the nation, economic factors, political turbulence, the fact that elections were held recently, the costs involved, etc. But the discretion is the king’s.”

He even became nostalgic in order to strengthen his point of views:

“We are invited to interpret Article 43(4) which reads: “If the PM (JMD : in this case the MB) ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang diPertuan Agong dissolves Parliament, the prime minister shall tender the resignation of the cabinet.”

What we are trying to do is find out what is the intention of our founding fathers. That is what the task is all about. How do you interpret those words?

Who are the founding fathers? First, the five members of the Reid Commission — two members from the UK, one from Australia, one from India and one from Pakistan — the senior Commonwealth members. The other group of people are Tunku Abdul Rahman, Tun VT Sambanthan and Tun Tan Cheng Lock.

What we are trying to do is interpret their words, 43(4), with the intention they had in mind. Some legal experts have said it is limited to a poll, a vote of no confidence in the Dewan Rakyat. My argument is that cannot be the intention because if it is so limited, then the language would have been something like this: “If the Prime Minister is defeated on a motion of confidence in the House of Representatives, then…” So you see the opening words of 43(4) and my imaginary version are very different…the actual wording is far more general, broad and wide, whereas the other is specific and limited to one method. 

But the important thing is that it is the king’s satisfaction that matters. The king must be satisfied that the prime minister of the day no longer enjoys the confidence of the majority of the lower house. So what that means actually is that the king cannot act arbitrarily; there must be some objective facts, some proof, some reason for him to act.

How he goes about satisfying himself on this point is up to the king.”

Please read here and here.

This is from the same lawyer that is representing Pakatan Rakyat now! Of course during that interview, he was justifying whether can Anwar Ibrahim, the potential usurper, be a Prime Minister through crossovers. All Pakatan Rakyat supporters hailed those interviews as a reference point at that time.

Now, they are singing a different tune.

However, since all Pakatan Rakyat lawyers are highly principled and beyond reproach, I am sure they will not flip flop their way in front of public’s eyes. Hopefully V. Sivakumar did not choose the wrong lawyer. Anyway, by being the lead counsel to question the Sultan’s decision, are we now suppose to think that his interviews back in last October were rubbish?

Just asking.