Thursday, September 4, 2014

Kula to take Low's appointment to apex court

2:12PM Sep 4, 2014 Malaysiakini

Kula to take Low's appointment to apex court


Ipoh Barat MP M Kulasegaran, who lost his appeal to challenge the appointment of unelected ministers and deputy ministers in the Court of Appeal today, said he will take the matter to Federal Court.

This is because the case against ministers Abdul Wahid Omar and Paul Low' (right) and deputy ministers Loga Bala Mohan and Ahmad Bashah Md Hanipah involves a constitutional matter, he said.

Kulasegaran said it is a requirement in the Federal Constitution that the appointment of ministers and deputy ministers be made from among the members of the Dewan Rakyat or Dewan Negara.

“This is pursuant to Articles 43(2)(b) and 43 A(1) of the Federal Constitution.

"All four did not stand for the general election held on May 5, 2013. On May 15, they were appointed as ministers and deputy ministers respectively (without earlier taking their oaths as senators).

“My lawyers that argued their appointments are unconstitutional as at the time of their appointments on May 15, they were not members of either House of Parliament, as they were yet to be sworn in.

"Hence, I will appeal this matter to the Federal Court as this involves a constitutional matter,” Kulasegaran said in a statement today.

Court of Appeal judge Linton Albert, who is heading the three member-panel, did not allow the Ipoh Barat MP's appeal.

Sitting with Justice Linton are Court of Appeal judge Rohana Yusof and High Court judge Vernon Ong Lam Kiat.

Kulasegaran's lawyer, R Kenghadaran, had argued that the appointment of the ministers and deputy ministers are unconstitutional as they had not been appointed as senators at that time.

Federal counsel: Judicial review frivolous

However, senior federal counsel Amarjit Singh and Suzana Atan objected to the appeal on grounds that the judicial review was frivolous and that there was no arguable case.

“The appellant is arguing on words that do not exist or words that he himself has added. The ministers and deputy ministers had taken their oaths of office after being appointed as senators,” the counsel said.

Kulasegaran expressed total disappointment with today's decision and the swift disposal of his appeal.

“Being a serious constitutional matter of wide implications, and first of its kind in the country, the government lawyers were not even invited to address the Bench. In light of the outcome, I am keen to appeal to the Federal Court,” he said.

Last year, Kuala Lumpur High Court judge Zaleha Yusof, dismissed Kulasegaran's application, ruling that there is no provision in the Federal Constitution preventing an appointment to the Senate before the appointee takes his oath of office.

“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 be sworn 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.

Constitutional lawyer Tommy Thomas (above, right) has written that Prime Minister Najib Abdul Razak made a constitutional blunder when the ministers and deputy ministers were appointed first, before their appointment to the Senate.

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