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Sivakumar’s leave application to be heard on 29 Sept

KUALA LUMPUR, 9 Sept 2009: Former Perak Speaker V Sivakumar and six others will know on 29 Sept whether they can challenge the Election Commission (EC)’s decision not to hold by-elections for three state seats in Perak.

Justice Lau Bee Lan fixed the date after both Senior Federal Counsel Datuk Kamaludin Md Said and Sivakumar’s counsel Datuk S Ambiga completed their submissions in a two-and-a-half hour proceeding in chambers today.

Sivakumar, opposition assemblypersons Chen Fook Chye, Tai Sing Ng and A Sivanesan, and three voters — Ahmad Sabry Wahab (Behrang), Abdul Latif Ariffin (Changkat Jering) and Foo Hon Wai (Jelapang) — sought leave to initiate a judicial review to quash the EC’s decision to not declare vacant the Behrang, Changkat Jering and Jelapang state constituencies following the resignations of
their respective assemblypersons who turned independent.

They had initiated the suit against the EC and the trio of assemblypersons Jamaluddin Mohd Radzi (Behrang), Mohd Osman Mohd Jailu (Changkat Jering) and Hee Yit Foong (Jelapang).

Jamaluddin and Osman won their seats on Parti Keadilan Rakyat (PKR) tickets, and Hee under the DAP banner, in last year’s general election. They left their parties and pledged support for the Barisan Nasional, leading to the collapse of the PAS-PKR-DAP coalition government in Perak, which was then led by Datuk Seri Mohammad Nizar Jamaluddin.

On 3 Feb, Sivakumar notified the EC that the three seats were vacant after receiving letters purportedly on the resignations of the trio. The EC, however, doubted the resignations and refused to hold by-elections in the constituencies.

Sivakumar and the six sought a declaration that the Behrang, Changkat Jering and Jelapang seats became vacant following the resignations of Jamaluddin, Osman and Hee, and an injunction to stop them from acting and carrying out the functions and duties of assemblypersons.

They are also seeking a writ of quo warranto to compel the trio to show why they were still representatives of their constituencies and able to carry out the responsibilities, functions and duties of assemblypersons.

In the proceeding today, Kamaludin disagreed with Sivakumar’s claim that he had a right to declare the seats vacant in accordance to Article 35 of the Perak constitution.

Kamaludin argued that Article 35 of the Perak constitution did not empower a speaker of the State legislative Assembly to make a decision whether a seat had become vacant, as that provision only enabled a state assembyperson to resign from being a member of the state legislative assembly.

He said the right was under Article 36(5) of the Perak constitution, which states that the EC should ascertain whether there was a vacancy.

“Therefore, there is no arguable case, as Sivakumar’s action of declaring the state seats was unlawful as it did not fall within his power to do so and was contrary to Article 36(5) of the Perak constitution.”

Ambiga submitted that the EC had failed to state the basis and procedure it had adopted in arriving at its conclusion not to declare the seats vacant.

She said the EC did not come up with a definite decision as it had merely stated that it was unsure whether there was a resignation or not. — Bernama

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