Tuesday, July 30, 2013

Kula fails in bid to question cabinet appointments

Kula fails in bid to question cabinet appointments
 
The DAP’s Ipoh Barat parliamentarian, M Kula Segaran, has failed in his leave application to query the appointment of two ministers and three deputy ministers even before they took their oath as senators.

Kuala Lumpur High Court judge Zaleha Yusof, dismissing his application this morning, said that appointments and swearing-in ceremonies are two different things.

She said that she is looking the matter purely on law.

There is no provision, the judge said, in the federal constitution which prevents appointment to the Senate before the appointee takes his oath.

“On the contrary, clause 1 of Article 59 and the wording in the sixth schedule imply that a person has to be appointed first before he can take his oath or swear in. The only restriction is that until he takes his oath, he cannot take his seat (in the Senate) and subscribe before the president of the Senate.”

Justice Zaleha said similarly a minister can be appointed but as provided by clause 6 of Article 43 of the federal constitution, he cannot exercise his function before he takes the oath of office.

dap education roundtable meeting 111006 m kulasegaran“I agree with the respondents’ submission that the appointment has to take place before the oath or swearing in,” she said.

“Hence, the application for leave (permission to initiate the judicial review) by (Kula Segaran, left) is dismissed without costs. There is no arguable case in this application.”

Despite the judgment, she did not address the issue of the ministers and deputy ministers in this case who were appointed and had taken their oath in the cabinet first, before they legally took their oath as senators.

Attorney-general (AG) Abdul Gani Patail appeared for the two ministers and deputy ministers.

Sworn in as ministers before Senate appointment

The five cabinet appointees had taken their oath of office as ministers or deputy ministers before the Agong, and were only later sworn in as senators - which was the basis of their appointments.

There have been arguments on the issue, resulting in some of the ministers who were appointed not wanting to comment on the issue.

The five were Ministers in the Prime Minister’s Department Abdul Wahid Omar and Paul Low, Deputy Ministers in the Prime Minister’s Department P Waythamoorthy, and Dr Loga Bala Mohan and deputy Domestic Trade and Consumer Affairs Minister Ahmad Bashah Md Hanipah.

Kula Segaran noted that, by convention over the past 57 years, senators have taken their oath in Parliament before assuming their posts as ministers.

“I have checked with the House (Parliament) and the term when they get their entitlement of rights and privileges is from the period they take their oath as senators,” he said.

“I think the government was ill-advised by the AG on this matter as this goes against the constitution and convention. These ministers have also been making policy decisions.”

This, he said, will be the grounds of his intended appeal against the court ruling.

Kulasegaran said he had also consulted constitutional experts and they say the same thing - you have to take oath  in the Senate before taking a post in the cabinet.

NONELawyer R Kenghadaran (left in photo) said appointment and oath-taking is an integral thing.

“You cannot omit one and go with the other. You cannot appoint a person and then the person takes the ministry role and makes ministry decisions, and then you can postpone the oath-taking. It doesn’t work that way.

“Oath-taking is an integral part of an appointment, an appointment is not complete unless you had taken the oath. So administering the oath is the central matter. If you have not taken the oath, that means your appointment is null and void, your appointment is ineffective, so the essence of the story is simply this, appointment and oath taking must be conducted jointly,” he said.

After the hearing, Abdul Gani commented: “You need to be appointed (as ministers) before you get to be sworn in.”

Constitutional lawyer Tommy Thomas had written in Malaysiakini that prime minister Najib had made a constitutional blunder which saw them appointing the minister first before the appointment to the Senate.

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