Sunday, March 22, 2009

Sivakumar causes tremendous headache to Umno - Malaysian Insider

Poster by Mohamed Hanipa Maidin

MARCH 22 - Perak constitutional crisis has produced an outstanding hero. The hero is none other than the Perak's speaker V. Sivakumar. Why not ? This man has really made the life of Umno in a terrible chaos.

Since the crisis started. Umno has resigned to the fact that it could not face Sivakumar alone.

Thus it has to use (read abuse) all the powers at its disposal to wage a war against Sivakumar.

First of all Umno used the Election Commission (EC) to frustrate Sivakumar's ruling on the resignation letters of the three defectors. Those who are familiar with the Perak Constitution know that the resignation letters of those three defectors were valid under Article XXXV of the Perak's constitution. Article XXXV only requires two conditions in order to ascertain the validity of any resignation letter issued by any assemblyman.

First there must be a letter signed by a state assemblyman and secondly such a letter must be addressed to the Speaker. As far as the three defectors' resignations were concerned these two requirements had been fulfilled thus prompting Sivakumar to declare such letters to be valid . When the letters were valid the EC had no other option but to declare by elections.

The EC has no power to question the validity of the resignations. It was not the statutory function of the EC to go beyond the four corners of the resignation letters .Under the law the EC was bound to accept the decision of V. Sivakumar .

By failing to hold by elections the EC has abdicated its constitutional duty. It unjustifiably usurped the power of the Perak' speaker.

Even the EC's former Chairman conceded that the former has no power to question the validity of the speaker's ruling. As the EC was bound to follow Umno's script it has no other option but to refuse by elections.

Despite the fact that the EC managed to set aside the decision of Sivakumar the latter's power has not been diminished . Everybody knows Umno desperately wants to convene the State Assembly.

Umno needs to go there for one purpose only namely to pass a vote of no confidence against Dato Sri Nizar. Yet hitherto Sivakumar has been the only impediment for Ummo to go to the State Assembly.

Umno has been extremely worry should Sivakumar flex his muscle. And flexing his legal muscle was what Sivakumar did.

Thus when Sivakumar made a decision to suspend Zambry and six others Umno has to face a very painful lesson i.e never underestimate the speaker's power. Umno received a fatal blow by such a powerful decision by Sivakumar.

Overwhelmed by Sivakumar's move Umno asked police to find whatever reasons to threaten him.

Of course every body knows the police could find none. Yet since the script mandates the police investigation on Sivakumar , the police has to find whatever flimsy reasons in one way or another.

Thus Sivakumar was unnecessarily subject to police investigations for two hours.

But Umno was still unhappy. Sivakumar needed to be further "turned over" ( sounds familiar ) by a Malaysian Anti Corruption Commission ( MACC ) .

Thus Sivakumar was once again subjected to another two hours interrogations and this time by MACC .

Of course in pressuring MACC to investigate Sivakumar, Umno sought to break a new record - the first ever speaker in Commonwealth countries ( or may be in the world ) who has been investigated for carrying out his official and constitutional function.

Despite abusing the EC, Police and MACC respectively , Umno has still failed to obtain its desired goal . Umno wanted badly to go to the State Assembly in order to pass a vote of non confidence against Nizar. Yet hitherto Sivakumar has become the sole stumbling block for Umno to achieve its ends.

In another spectrum, Sivakumar's confidence in frustrating Umno's plan of action has gained a new momentum.

Nothing could prevent him be it the EC, Police, MACC or whoever. Instead of taking a defensive stand, he switched to an attacking mode. Armed with legal power vested upon him, he summoned an emergency meeting of the assembly . Such a brilliant maneuver by Sivakumar left Umno in quandary. It was really a bombshell to Umno.

Umno desperately needed somebody, whoever he is, to counter such a move. Running out of viable options , Umno turned to the Secretary of the State Assembly to make an announcement .

Thus came an unprepared statement by this poor guy that Sivakumar has no power to summon the emergency meeting. Being subordinate to Sivakumar the secretary of the assembly has no business at all to make such a ridiculous statement. Of course making a stupid statement was also part of the script !!

But such a statement did not deter Sivakumar. Despite police handedness in obstructing Sivakumar to convene the assembly, he ultimately managed to hold it notwithstanding under the tree.

The legal fraternity endorsed such an assembly and held that such a meeting was constitutional and valid. The assembly prompted Umno to resort to a reluctant choice i.e going to a court of law.

Going to court means Umno has to face a painful reality - asking the court to review unreviewable decision of the speaker.

If the court really follows the law ( that I was told in law school ) the court will have no choice but to decide in favour of Sivakumar simply because it is trite law that the decision of the speaker is non justiciable.

Umno knows very well that to win the court's battle it needs to avoid Sivakumar from being represented by a lawyer of his own choice.

If Sivakumar retained his own lawyer Umno would not be able to control the game. Thus by hook or crook Sivakumar needed to be represented by the State Legal Adviser.

Thus Umno's lawyers vehemently opposed Sivakumar from being represented by Tommy Thomas etl. Even when Sivakumar decided to represent himself the same was also objected to by Umno's lawyers. Unfortunately the Judicial Commissioner bought the Umno's arguments.

NST reported his position was thereafter confirmed. What a twist of fate !!!

The victory in Perak's high court was indeed a relief for Umno. Nevertheless it was only shortlived. The court of appeal subsequently held that Sivakumar has the right to be represented by a private lawyer.

Umno retaliated. It asked the same Judicial to refer the matter to the Federal court. Going to the Federal court straight away means Sivakumar has no more avenue to appeal should the decision is not in his favour.

Now the ball is in the Federal court. The Federal court may decide against Sivakumar. However the Federal court cannot run away from this apt advice by Justice Aharon Barak..

"Judges must act according to the law…when we sit to judge, we are being judged."

And judging the Federal court judges is what the people are going to do now.

1 comment:

Hamba Allah said...

I think the article is wrong to refer to UMNO. It was BN that participated in the election. Yes, UMNO is the dominant party of BN. This is not the same as PR as there is no party called PR. Siva is the first speaker of ethnic Indian and he has created such a mess. If BN has a majority now, then it is right for the BN to be the legitimate government. We should learn from this episode so that it will not repeat again at Federal as well as state government in the future.