Updated 6.58pm on 9 April 2009
PUTRAJAYA, 9 April 2009: The three Perak state assemblypersons who quit their parties to become independents can keep their seats as the Federal Court today ruled that the Election Commission (EC) had the right to declare whether state seats were vacant or not.
In a landmark decision, Court of Appeal President Tan Sri Alauddin Mohd Sheriff, who headed a five-person bench, granted an application by the trio – Jamaluddin Mohd Radzi (Behrang), Capt (Rtd) Mohd Osman Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) – to declare that they were the state assemblypersons for the three constituencies.
Alauddin said the bench was unanimous in its decision that the EC, and not the Perak state assembly speaker, had the power to declare whether the seats were vacant.
Alauddin held that the interpretation of Article 36(5) of the Perak Constitution, read together with Section 12(3) of the Election Act 1958, meant that the EC was the rightful entity to establish if there was a casual vacancy of a state legislative assembly seat in Perak.
The other four judges who sat with him were Chief Judge of Malaya Datuk Arifin Zakaria, Federal Court judges Datuk Nik Hashim Nik Ab Rahman and Datuk S Augustine Paul and Appeals Court judge Datuk James Foong.
Yesterday, the court for the first time, decided to hear and determine the constitutional issue over who had the power to declare vacancies for the seats.
Perak speaker V Sivakumar, who was in court, declined to answer questions about the decision from the media.
The three assemblypersons had applied for their suit against Sivakumar to be referred to the apex court on the grounds that it involved constitutional issues.
They had originally filed the suit against Sivakumar at the High Court Ipoh seeking a declaration that they were the valid elected representatives for the three constituencies although Sivakumar had announced that the seats were vacant.
With today’s decision, there is closure to the trio’s suit against Sivakumar.
In February, Jamaluddin and Mohd Osman left Parti Keadilan Rakyat (PKR), and Hee the DAP, to become independent assemblypersons.
This led Sivakumar to declare the seats vacant on the premise that the trio had signed undated resignation letters after winning the seats in the March 2008 general election.
However, EC chairperson, Tan Sri Abdul Aziz Mohd Yusuf, later declared that Jamaluddin and Mohd Osman were still assemblypersons and no by-elections would be called for their seats (at that time Hee had not yet left the DAP).
At the outset, counsel Firoz Hussein Ahmad Jamaluddin, for the three assemblypersons, submitted that it was very clear under Article 36 (5) that the EC was to establish a casual vacancy for the seats and there was no provision under the Federal Constitution that conferred the Speaker the right to announce the vacancies.
He said the role of the speaker was to submit resignation letters of assemblypersons who quit to the EC and not to declare the seats were vacant.
Attorney-General Tan Sri Abdul Gani Patail, who was an intervenor in the proceedings, also said that Article 36 (5) conferred the EC the right to establish casual vacancies for the seats in the assembly.
Sivakumar’s counsel Tommy Thomas submitted that Article 72 of the Federal Constitution meant that Sivakumar enjoyed immunity and his decision that declared the seats were vacant could not be questioned in court.
He said under the article, the speaker was also conferred the privilege and power to decide over the issue involved in the assembly house and that his decision was final and cannot be challenged in court.
Tommy also said Sivakumar’s action in informing the trio’s resignation to the EC and announcing the vacancies for the seats was part of his role in the assembly.
Tommy argued that the function of the EC as stated in the Federal Constitution was more an administrative function related to elections such as fixing the nomination and polling dates.
Another of Sivakumar’s counsel, Sulaiman Abdullah, submitted that Article 31(1) of the Perak Constitution said that any dispute arising within the state legislative assembly should be settled in the house and it was not for the EC or the court to decide.
“In the present case, there were two separate functions — separation of powers and separation of functions. The speaker’s decision was made by the power given to him while the EC’s function is more on dealing with elections,” he said. — Bernama