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No way Ganesan is speaker and here's why

The debate on the legality of the removal of V Sivakumar as speaker of Perak state legislative assembly has raised a number of pertinent questions. The first and most crucially is the question: at what point did the first meeting of the second session of the 12th state assembly on May 7 legally sit?

According to one view, the May 7 meeting did not legally sit until it was opened by the royal address of the Raja Muda of Perak which only took place between 3.16 pm and 3.47 pm.

This view holds that the sitting must have been ‘opened'' to be in a legal position to transact business, including deliberating a resolution to remove Sivakumar which was purportedly passed at about 10.30 am.

In other words, the assembly was not legally sitting when it passed the resolution. In consequence, Sivakumar was not lawfully removed and therefore continues to be the lawful speaker.

This view relies on Standing Order (SO) 90 which allows Commonwealth Parliamentary practice and usage to be used as guidance on issues where the standing orders of the state assembly are silent. And relying on authoritative and leading texts on parliamentary procedure in the Commonwealth, the view expresses itself as mentioned above.

The reliance on SO 90 is made because the view considers that two other standing orders, namely SO 1 and SO 13, do not apply to the May 7 meeting.

SO 1 states that on the first day of the meeting of the assembly after a state general election (‘GE'), members having assembled and seated accordingly, the secretary of the assembly shall read the proclamation of His Highness the Sultan of Perak by which the meeting was summoned and thereafter the assembly shall transact the business in the order stated.

Since SO 1 expressly refers to the first meeting after a state elections, which is the first session of the legislative term, it does not apply to the May 7 meeting.

This, however, begs the question: if the first meeting of the first session, which arguably is the ‘mother of all sittings' of an assembly in a legislative term, commences with the secretary of the assembly reading the proclamation of His Royal Highness following which the order of business for the day shall proceed, why not too the first sitting of the second session, or subsequent sessions for that matter?

Invariably, the first meetings of each and every session of the assembly are summoned by proclamations of HRH pursuant to Article 36 of the state constitution.

The reading of the proclamation by which the first meeting was summoned arguably commences the session of the assembly. It is, therefore, arguable that the May 7 meeting had legally begun with the secretary reading the proclamation of HRH, if ever there was one, and members having assembled and seated accordingly in the assembly.

It follows then that the assembly was in a legal position to proceed with transacting the business of the day. From here on, SO 13 becomes relevant. According to the SO 13(1), the business of the day should be in the following order:

a. Formal entry of the Speaker

b. Prayers

c. Taking of oath by any new member

d. Messages by HRH

e. Announcements by the Speaker

f. Petitions

(g) - (p) specific matters including public business as they appear on the Order Paper for the day.

Now, the legality of the removal of Sivakumar perhaps lies by reference to, among others, SO 13(2). Here it provides that the assembly may, upon a motion by the menteri besar or in his absence a member of the state executive council, decide to proceed to any particular business out of the regular order.

The motion by the menteri besar, which may be made without notice, is to be decided without amendment or debate and shall take precedence over all other business. It follows that the assembly may begin with any items of business as they appear on the Order Paper for the day subject to the assembly deciding to do so after a motion by the menteri besar.

That appears to be perfectly valid. It flows from the principle that the assembly regulates itself.

So, the crucial question that needs to be asked is: was there a motion by the menteri besar to proceed to any particular business out of the regular order?

In the circumstances of the May 7 meeting, was there a motion by the menteri besar to proceed with a motion to remove Sivakumar as speaker of the assembly being a particular business out of the regular order?

In any case, having said that the May 7 meeting had arguably begun with the reading of the proclamation of HRH, Sivakumar, in his capacity as the speaker, was legally entitled to order the 10 assembly persons to leave the assembly.

By SO 89, his ruling was, and arguably remains, final subject to a substantive motion moved for that purpose. This begs another question: why wasn't the order carried out and enforced?

The second pertinent question is: was R Ganesan lawfully sworn in as the speaker of the assembly? In the regular order of business, swearing-in of new members takes place before messages from HRH.

If Ganesan had not been lawfully sworn in, then the May 7 meeting had proceeded after the purported motion to appoint Ganesan, who is a non-assembly person, with a speaker of the assembly not duly sworn in and who had not taken his oath of office and oath of allegiance.

And this would appear to be fatal as Article 36A(1A) of the state constitution provides that any person elected as speaker who is not a member of the assembly shall, before he enters upon the duties of his office, take and subscribe before the assembly an oath of office.

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