PETALING JAYA, 4 Feb 2009: Lawyers are divided over the Election Commission’s right to prevent by-elections on the basis of doubtful vacancies for the Behrang and Changkat Jering seats in Perak.
Constitutional lawyer Prof Dr Shad Saleem Faruqi argued that the EC has the power to make the decision it made.
Additionally, Dr Shad questioned the Perak Speaker’s absolute right to declare the vacancies as the Perak state constitution does not provide for it.
He said the Speaker only had the right to declare disqualifications from the state assembly based on criminal conviction or bankruptcy.
“There is no category for disqualification or vacancy on the basis of pre-signed resignation letters. An assemblyperson may resign by submitting his [or her] resignation to the Speaker, but in this case, both representatives say they did not.
“And if we argue on the basis of the validity of pre-signed letters, we are open to elements of forgery. If the undated letter is given a date but the assemblypersons say they did not write that date, it can be considered forgery,” Shad told The Nut Graph.
The Speaker’s absolute right to declare vacancies is also questionable as Parliament is not supreme in Malaysia, Shad said.
The Federal Constitution is supreme in Malaysia, unlike in the United Kingdom, which has no written constitution, and where Parliament is supreme, he explained.
“People are saying the EC commission has overstepped its boundaries in overriding the Perak Speaker, but which law gives the Speaker or gives Parliament such authority? If we look to the British precedent, we find that we are not like them, where the Parliament Speaker has the authority,” Shad said.
He said the EC was therefore entitled to decide against holding the by-election because of doubts on the validity of the resignation letters.
Different view
In contrast, another constitutional lawyer, Malik Imtiaz Sarwar on his blog said that the EC’s role in deciding if by-elections are needed is done on the basis of the Speaker’s declaration.
“It is not for the EC to embark on a fact-finding or adjudication process. It does not have the power to do so. In denying the position the speaker has taken, the EC is asserting that the Speaker is wrong. The EC cannot do so.”
Malik said that even if the Speaker were wrong (in accepting the disputed resignation letters), he ought to be proven wrong through the valid process, which is either the Perak assembly or the courts.
“Until then, the Speaker’s decision must stand,” he said.
Malik said the Perak government could request the Sultan to dissolve the assembly and call for fresh state elections, or get the court to compel the EC to conduct the by-election, but this would be time-consuming.
As legal experts trade views in the media, Pakatan Rakyat is keeping its options open, which include seeking a dissolution of the state assembly to force fresh elections, Parti Keadilan Rakyat (PKR) deputy president Dr Syed Husin Ali said.
“Our options range from challenging the EC’s decision to dissolution. All options are open and we’ll announce our plan at the right time,” he told The Nut Graph in a phone interview this morning.
In a press statement, Syed Husin also criticised the EC for being unprofessional and accused it of bowing to political interference. He said the EC should accept the Perak Speaker’s declaration of the vacancies as the Speaker’s decision was final.
“The EC’s decision not to hold polls will allow the two assemblypersons to join BN without going through a by-election,” he said. 
