In the matter of Datuk R. Ganesan (Defendant)

Media Statement by Mr Speaker V. Sivakumar regarding the Report of the Committee of Powers and Privileges, Perak State Assembly

(1) The first question facing the Committee was to determine its own status. Can it still sit after the 7th May Assembly?

(2) The second question was whether the proceedings can elect a new Speaker before the session was opened by HRH Raja Muda?

(3) The third question was whether Mr Speaker, was right to order the 7 Assemblymen who had been suspended by the Assembly on 3rd March 2009 and the 3 who had resigned to leave the Assembly? The persons concerned are as follows:-

(i) YB Dato’ Seri Dr Zambry bin Abd. Kadir;

(ii) YB Encik Zainol Fadzi Bin Haji Paharuddin;

(iii) YB Dato’ Ramly Bin Zahari;

(iv) YB Dato’ Hamidah Binti Osman;

(v) YB Dato’ Saarani Bin Mohamad;

(vi) YB Encik Mohammad Zahir Bin Abdul Khalid;

(vii) YB Dato’ Dr Mah Hang Soon;

(viii) Jamaluddin Bin Mohd Radzi;

(ix) Mohd. Osman Bin Mohd Jailu; and

(x) Hee Yit Foong.

(4) In answering the questions posed, the Committee had the benefit of the oral advice and written Opinion of Mr Tommy Thomas, Advocate and Solicitor. In his oral presentation to the Committee, Mr Thomas stated that:-

(a) No business can be transacted until the Assembly has been “opened” by HRH Sultan or the Regent.

(b) Any purported resolution to remove the Speaker before the opening of Assembly is illegal, null and void. Therefore, Sivakumar was not lawfully removed and Ganesan was not lawfully appointed.

(c) No resolution can be be moved or passed before the sitting commences. This means any resolution to remove Sivakumar and to elect Ganesan as the new Speaker and other resolutions to change the membership of the Select Committees are invalid in law.

(5) Mr Thomas also stated that our Standing Orders allow the Assembly to refer to other Commonwealth practices (S.O. 90).

(6) In British Parliamentary Practice as described in Erskine May, if a House wants to change their Speaker, the incumbent Speaker (unless he has died) will have to preside and call the meeting to order. After this procedure has been complied, the House can then proceed to move a motion to do whatever they want.

(7) Mr Thomas tendered two written Opinions to the Committee as Exhibits. The first was dated 1st March 2009 and dealt with the convening of the sitting on 3rd March 2009, while the second dated 18th May 2009 considered whether Ganesan had been validly elected as Speaker. Mr Thomas informed the Committee that both Opinions have been posted on the internet, and thus have been in the public domain for some time.

(8) When asked to comment on the validity of the Assembly sitting under the tree on 3rd March, Mr Thomas explained that the change in venue was understandable in the circumstances. It was a matter of necessity as the Assembly was locked and blockaded. Entry to it was denied. He gave the example of the British House of Commons during World War II sitting elsewhere when Hitler’s bombs damaged Parliament. He also cited 2 instances of the Penang Assembly sitting in Universiti Sains Malaysia between 1999 and 2008 when the Assembly building was undergoing renovation. An even more ancient example was also given, namely, the French Assembly in 1789 sitting in the tennis court when the members were denied entry into their Assembly building.

(9) Mr Thomas’ opinion was that the tree-sitting was legal. It follows that the suspension of Zambry and 6 others is still effective because the Tree meeting of the Assembly adopted the Committee’s decision.

FINDINGS OF THE COMMITTEE

1. The Committee has no hesitation in accepting the evidence of Mr Thomas. Therefore, we hold that this Committee is still the legal and valid committee as opposed to any others which may have purportedly been set up after the sitting on 7th May 2009. We are also firmly of the view, and rule that the sitting on 7th May 2009 was an illegal and unconstitutional sitting because it was not presided over by the lawful Speaker, Mr Sivakumar. So important is this ruling that we annex herewith the authority from Coke’s Institutes which states that “the House of Commons cannot sit without him …”, as reproduced and found at page 528 of Tudor Constitutional Documents a.d. 1485 -1603 by James R. Tanner, Cambridge at the University Press 1948.

2. We further hold that the attempt to elect a new Speaker before the Royal Speech is illegal and the Defendant Ganesan’s election is unconstitutional, null and void.

3. As for Mr Speaker’s right to exclude the 10 persons, this is right and proper because the sitting on 3rd March 2009 which suspended and excluded them is perfectly legal and has not been set aside. The Committee further notes that although the Federal Court was invited by Zambry to rule on the validity of that Assembly sitting on 7th May 2009, the Federal Court declined to do so. The issue of the Assembly sitting’s validity is therefore beyond question.

4. Although the Election Commission has failed to call elections for the seats of Changkat Jering, Behrang and Jelapang, their resignations have been accepted by Mr Speaker and his decision in the House is final. That the Election Commission refusal to call a by-election is a distinct and separate matter and does not in any way restrict Mr Speaker’s powers in the House which allows him to make rulings subject only to a challenge by way of a substantive motion in the House. No such motion to challenge Mr Speaker’s rulings was done on, before or after 7th May 2009. Thus, as far as the House is concerned, the 3 seats are vacant.

5. We also accept YB Dato’ Ngeh Koo Ham’s evidence in his testimony to us that the Defendant had called in the police for the purpose of removing Mr Speaker by force. This evidence confirms what the Defendant, Ganesan had stated in the proceedings in the High Court in Ipoh and through the media, thereby admitting responsibility for requesting police assistance.

6. After due consideration, we hold the Defendant guilty of contempt of the Assembly. We would report to the Assembly that the Defendant should immediately desist from holding himself out as Speaker. He should not be allowed to enter the Assembly building whether the Assembly is sitting or not.

7. We cannot treat the action of Ganesan lightly. No Assembly in the world, ours included, can tolerate such behaviour. Chaos will reign in meetings throughout the country, whether of public-listed or private companies, trade unions, school boards, societies, clubs, Parents Teachers’ Association or other NGOs, if the use of force to remove the Chairman is condoned. Hence, the importance of this enquiry: which is undertaken not merely to vindicate the dignity of the Assembly, but also to protect the proper procedures behind the conduct of meetings. Failing to condemn the Defendant’s action in using violence to attain his objective will encourage others to do the same in meetings of other organisations, associations and bodies. Such disrespect for law and order and proper procedures can only encourage anarchy.

8. Bearing in mind the gravity and severity of the offence by Defendant, we impose our punishment as follows:-

(1) The Defendant Datuk R. Ganesan is hereby sentenced to 6 months’ imprisonment or to remain in jail until the Assembly is dissolved, whichever is earlier.

(2) The Defendant is further hereby fined RM500,000.00 in default 6 months’ jail or to remain in jail until the Assembly is dissolved, whichever is earlier.

Dated this 30th day of July 2009

YB V. SIVAKUMAR
YANG DIPERTUA
DEWAN UNDANGAN NEGERI PERAK