Update 2: 16 March - The Federal Court will decide on the constitutional issue as to who has the power to declare the vacancy of Perak State Legislative Assembly seats.

Update 1: 10 March - Perak Speaker V. Sivakumar filed a suit against the Election Commission (EC) on its earlier decision to not call for by-elections in Changkat Jering, Behrang and Jelapang. Meanwhile, three voters and three former Perak executive councillors also filed similar suits against the EC.

What started out as a squabble over who the rightful Menteri Besar of Perak is has now escalated into what many legal experts say is a full-blown constitutional crisis.

The debacle has crippled the state’s administration as both Pakatan Rakyat and Barisan Nasional MBs argue their legitimacy.

To help you make sense of this messy legal situation in Perak, The Edge Malaysia has identified the key points of contention between the two parties.

An unconstitutional sitting?

Perak Speaker V. Sivakumar’s lawyer, Tommy Thomas, says that according to the state constitution, the Speaker has the discretion to call for a reconvening of the State Assembly.

This is only applicable, however, if the session has not come to a close otherwise only the Sultan of Perak may summon the Assembly. The PR argument is that the current session was never closed.

Malaysian Bar Council President Datuk Ambiga Sreenevasan says events in Perak are unprecedented “thus leaving the Speaker with the powers to act according to the circumstances of the case.”

Dr Mohammad Agus, a lecturer at UKM’s History, Politics and Strategic Studies Department, says that the three motions passed during the session were also valid and cannot be challenged in court.

These included a motion of confidence in Datuk Seri Mohammad Nizar Jamaluddin as the legal Perak Menteri Besar, an agreement to seek Royal consent for the dissolution of the state assembly and the adoption of the suspension of Datuk Dr Zambry Abdul Kadir as MB and the six executive councillors he appointed.

Most  legal experts appear to agree that the sitting was valid. However Prof Madya Dr Shamrahayu Abdul Aziz, a constitutional law expert from the International Islamic University Malaysia disagrees with that. 

In an interview with Bernama, Shamrahayu says that “the State Assembly term is at a time and place as determined by the Sultan of Perak from time to time through gazetted proclamation.”

No more emergency sittings

The Ipoh High Court on 3 March issued an injunction preventing Sivakumar from holding any more ‘unlawful meetings’ under Section 44 of Specific Relief Act which grants the court the power to make orders to a public official.

DAP chairman and lawyer Karpal Singh said that the Ipoh High Court’s order was “null and void” on the grounds that Judicial Commissioner Ridwan Ibrahim had “acted beyond his powers in that ruling”.

"The judge will have to answer for having acted unconstitutionally,” Karpal said in an interview with Malaysiakini. “He can be brought before the Perak assembly because of the decision he made.”

It later emerged that Ridwan was appointed on 1 March, 2007 to a term lasting two years ending 28 February. 2009. According to a Malaysian Insider report, it is not clear whether his term was extended. This raises questions as to his eligibility to deliver rulings, unlike judges who have full tenure.

Conflict of interest

Zambry’s lawyers had asserted that the Speaker ought to be represented by the State Legal Advisor rather than his team of private lawyers that included Tommy Thomas.

They argued that as the Speaker is part of government, only the Attorney General’s Chambers and the State Legal Advisor may appoint lawyers for him. Thomas meanwhile, argued that the Speaker is not a “public officer” and the Assembly is not “government”.

JC Ridwan Ibrahim ruled that private lawyers have no legal standing to represent the Speaker.

The Bar Council’s Ambiga said while there was a legal basis for the Courts to disagree with the view that Sivakumar should be represented by private lawyers, the more substantive matter of general principles with regard to the State Legal Advisor’s position must be addressed. 

“Every lawyer must act on the instructions of his client and not otherwise,” she said. “The Speaker has stated that he never gave instructions to the State Legal Advisor to either appear for him or to argue the case on his behalf.”

Sivakumar subsequently filed a suit against the State Legal Advisor for falsely representing him in an application to prevent him as Speaker from convening any state assembly sitting.

This situation is further muddled by the ongoing court case between Nizar and Zambry in the Kuala Lumpur High Court. The State Legal Advisor Datuk Ahmad Kamal Mohd Shahid is also acting as Zambry’s counsel which puts him “in a position of conflict” with regard to Sivakumar, according to Ambiga,

Uphold the separation of power

There are three branches of government: the legislature, the executive and the judiciary. As these three branches each possess a great amount of power, there is a commonly-practiced doctrine of the separation of powers.

In Perak one incident that illustrates the intermingling of powers was when the Perak State Secretary’s office issued a directive to lock the gates to the State Secretariat. The directive suggests civil service and executive interference in the legislature and is against the doctrine of separation of powers.

This was exacerbated by the Perak Police Chief Datuk Zulkifli Abdullah who issued a statement calling the emergency sitting “invalid” and warned against the public gathering “in groups which are deemed to be illegal.”

The barricading of the entrance to the State Secretariat building by the police is deemed problematic by legal minds. Ambiga called it a clear indication of a breach of authority.

Malaysia is no stranger to instances of the perceived absence of separation of power. The 1988 Judiciary Crisis where the-then Lord President Justice Tun Salleh Abbas and other Supreme Court judges were removed is an oft-cited instance of the blurring of the powers of the three branches.

As the next few weeks play out, the public can only guess at what other legal contentions may arise from the Perak situation. But more legal wrangling are definitely in the offing as PR has shown that it will use this avenue as a means to thwart BN’s takeover of the state government.