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It’s futile to challenge EC’s decision, say lawyers

KUALA LUMPUR, 3 Feb 2009: It would be futile to challenge the Election Commission’s (EC) decision to maintain Jamaluddin Mohd Radzi and Mohd Osman Mohd Jailu as state assemblyperson for Behrang and Changkat Jering respectively, in the court of law.

DAP chairperson Karpal Singh, who is also a senior lawyer, said today, it “would be a waste of effort and time” to challenge the EC’s decision, announced today, as it was bound by the Federal Court’s ruling in 1982 in a similar case.

In 1982, the Federal Court in the case of Sarawak United People’s Party (SUPP) party chief Datuk Ong Kee Hui versus Sinyium anak Mutit, a party member, ruled that the arrangement of submitting an undated resignation letter to the speaker was contrary to public policy and therefore void.

“The EC’s decision can be challenged and nobody can stop this matter to be brought up to the courts, but they will face an uphill task due to the precedent in 1982 by the Federal Court.

“In this case, I am sure that the EC was advised by the Attorney-General’s office and other related agencies. It is a straightforward decision on the part of the EC, which is bound by the Federal Court’s ruling,” he told Bernama when contacted here.

Karpal’s view, however, contradicts the stand of party veteran leader Lim Kit Siang, who in a statement today, said the EC had acted unconstitutionally outside its jurisdiction in refusing to recognise the decision of the Perak assembly speaker V Sivakumar on the vacancy of the Changkat Jering and Behrang state seats and to hold by-elections.

The EC’s constitutional duty, he said, was to act on the Perak Speaker’s official notification on the vacancy of the two state assembly seats and to call for by-elections to be held in the next 60 days.

“It is no business of the EC to act and usurp the jurisdiction of the courts to dispute the Speaker’s decision, as any such legal challenge should come from Jamaluddin and Mohd Osman if they want to challenge the legality of their resignations from their respective state seats,” Lim said.

Earlier today, EC chairperson Tan Sri Abdul Aziz Yusof said the decision was made because both Jamaluddin and Mohd Osman had written a letter to the Perak Assembly Speaker to state that their resignations were invalid.

The political turmoil in Perak erupted two days ago after the two opposition state assemblypersons went missing, sparking fears that they had defected to the Barisan Nasional (BN).

Both held separate press conferences, in absence, which were attended by their representatives to state that they had not jumped ship but wanted to become independent state assemblypersons. They also said that they had never resigned as state assemblypersons.

Soon after their alleged “disappearance”, Sivakumar as Speaker, handed over undated resignation letters from the two state assemblymen to the EC, wanting the EC to declare the two seats vacant and that by-elections be called.

The letters were purportedly signed by the duo soon after the 2008 March general election.

Meanwhile, another senior lawyer, Naran Singh, when contacted, said the Speaker should have verified the two letters since they were signed by elected representatives.

“The Speaker should have asked the two assemblypersons if they had resigned from the party they represent or they had quit as state assemblypersons. They too have a right to be heard,” he added.

Naran said a by-election could not be called just based on a letter, sent by a third party, without any verification.

He also agreed with Karpal that the EC had the power to make a decision on the matter based on the 1982 Federal Court decision.

Another senior lawyer, Akbardin Abdul Kader, said the EC made the right decision and the issue of calling for fresh elections for the two state assembly seats did not arise as both the assemblypersons had denied their resignation.

“Authenticity of the letters is also questionable, unless the EC wants to probe further by calling witnesses to prove if the letters are genuine.

“But this too may be a problem because the two state reps are saying that they have not resigned. Anyway, it is not their jurisdiction to probe the matter,” he added. — Bernama

See also: EC: No by-elections in Perak (updated 3:03pm)

                  EC asked to review decision on Perak reps



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