PRESS STATEMENT BY YB SIVAKUMAR A/L VARATHARAJU NAIDU
- Tun Zaki’s admission nullifies Federal Court Judgments relating to rulings by Speaker of Perak Assembly [(a) suspension of Zambry and others; and (b) the refusal by Election Commission to hold by-elections relating to Jelapang, Behrang and Changkat Jering]
Supreme Court ruling in 1988 holds that all sittings not convened by CJ are illegal
1. According to Hashim Yeop Sani, CJ (Malaya), in Malaysian Bar v Tan Sri Abdul Hamid Omar (1989) 2 MLJ 281 at 282, any sitting convened by any other Judge other than the Chief Justice is not a lawfully constituted court. Reference was also made to the Tribunal Report against the five Judges that their sitting was “illegal and without jurisdiction.”
2. The Federal Court ruled that the Supreme Court which sat on 2 July 1988 was convened in contravention of ss 38 and 39 of the Courts of Judicature Act and in the result the court was not a lawfully constituted court and so has no jurisdiction to make the purported order for interim stay.
3. Likewise, a panel not properly constituted by Zaki cannot make any proper orders. The equivalent provisions today are ss 74 and 75 of the Courts of Judicature Act, 1964:-
74 (1) … every proceeding in the Federal Court shall be heard and disposed of by three Judges or such greater uneven number of Judges as the Chief Justice may in any particular case determine.
75 (1) The Court shall sit on such dates and at such places as the Chief Justice may from time to time appoint.
Suspension of Zambry and Exco
4. Tun Zaki J, retired Chief Justice admitted on 21.9.2011 that he did not convene or select the Judges for cases relating to the Perak crisis. He told Malaysiakini “In Sivakumar’s case, as I said, I did not constitute the panel. I do not know whether the President of the Court of Appeal (Alauddin) consulted with then Chief Judge of Malaya (Arifin Zakaria).” A suit in question is Zambry Abd Kadir & ors v myself and the Attorney-General as Intervener vide Notice of Motion No. 06-64-2009 (A).
5. The Judges who sat were Alauddin Mohd Sheriff PCA, Arifin Zakaria CJ, Nik Hashim FCJ, Augustine Paul FCJ, and Zulkefli Makinuddin FCJ.
6. The Court held that the Committee of Powers and Privileges had no power to suspend the Menteri Besar and his EXCO.
Refusal by Election Commission to hold by–elections
7. Another such hearing affected by Tun Zaki’s admission is the Federal Court Application vide Notice of Motion No. 06-3-2009 (A) filed by Jamaluddin, Osman and Hee Yit Foong and heard by Alauddin Mohd Sheriff PCA, Arifin Zakaria CJ, Nik Hashim FCJ, Augustine Paul FCJ and James Foong FCJ on 8.6.2009.
8. That application asked the Federal Court to set aside my ruling that the seats of Changkat Jering, Behrang and Jelapang were vacant. As I was then the Speaker, I had accepted the resignations of the assembly persons namely, Jamaluddin, Osman and Hee Yit Foong
9. As the Federal Court judgments are now undeniably bad, all rulings made by me as Speaker must stand. Therefore, the seats of Changkat Jering, Behrang and Jelapang are vacant and the suspensions should not have been set aside.
All State Assembly sittings after 3rd March 2009 are illegal
10. By reason of the illegal sittings of the Federal Court I am still the Speaker of the Perak State Assembly and the recent admission by Zaki reinforces my stand. As I did not preside in sittings called by Zambry, those sittings are unlawful. The last valid sitting was the one under the tree on 3.3.2009.
11. Therefore, regardless of whether I was physically evicted from my chair on 7.5.2009, the legal position is that the Perak Assembly sittings were attended by persons who should not be present.
12. After all, they had acted as they did by relying on the void judgments of the Federal Court.
13. The entire legal basis relied upon by Zambry to hold the Assembly sittings on 7.5.2009 and other sittings have now collapsed in view of the admission by Tun Zaki that he did not empanel the Judges.
Zambry and EXCO must vacate their seats
14. This illegal Menteri Besar and his EXCO should step down to prevent further embarrassment and hardship to the people of Perak.
15. I call on them to respect the law. A copy of the Federal Court Judgment is annexed.
SIVAKUMAR A/L VARATHARAJU NAIDU