'Only EC can determine vacancy'
Hafiz YatimPublished: Jun 15, 2009 6:16 PM | Updated: Jun 15, 2009 6:22 PM
The Election Commission (EC) is the rightful authority to determine whether there is a casual vacancy of an elected person in the Perak legislative assembly, according to the Federal Court.
The Election Commission (EC) is the rightful authority to determine whether there is a casual vacancy of an elected person in the Perak legislative assembly, according to the Federal Court.
Justice Nik Hashim Nik Abd Rahman (left), in a 20-page written judgment made available today, explained the ruling that Perak speaker V Sivakumar cannot interfere with the EC in determining whether such a vacancy has arisen.
The written judgment came two months after the apex court had ruled on April 9, that three Perak assemblypersons would keep their seats, after leaving Pakatan Rakyat to turn ‘BN-friendly’ Independents last February.
“When the speaker receives the letter of resignation purported to be from the assemblypersons, it will not cause their seats to become vacant,” said Nik Hashim.
"Under Article 35 of the Perak constitution, the speaker's role is limited to receiving the written resignation letter of the assemblyman and forwarding it to the EC, which will then by its own procedure determine whether a casual vacancy has arisen or not.
“Once the casual vacancy is established, then it is the duty of the EC to fill the vacancy by holding a by-election. With the clear provisions of the respective powers of the EC and the speaker, the fear of an encroachment into the doctrine of separation of powers by one body into another does not arise.”
The judgment was by a five-member panel led by Court of Appeal president Alauddin Mohd Sheriff. Apart from Nik Hashim, the other judges were Chief Judge of Malaya Justice Ariffin Zakaria, Federal Court judge Justice S Augustine Paul and then Court of Appeal judge James Foong.
In February 2009, Sivakumar had received pre-signed resignation letters from the three assemblypersons and declared their state seats vacant.
However, the EC refused to hold by-elections following ambiguity as to whether or not they had resigned voluntarily.
As a result, the trio - Mohd Osman Jailu (Changkat Jering), Jamaluddin Mohd Radzi (Behrang) and Hee Yit Foong (Jelapang) - sought a declaration that they had not vacated their seats.
The judgment confirmed that they remain the elected representatives for their respective seats.
‘Speaker can’t interfere’
Nik Hashim also gave a different take on the interpretation of the Perak constitution when he noted the phrase ‘shall become vacant’ is not part of Article 35 or Article 36(5) of the Perak constitution.
“Therefore, the position in Perak is different from that of India and Singapore in that the seat shall not become vacant merely by the fact that a resignation letter is being handed to the speaker,” he said.
“The speaker cannot therefore interfere with the constitutional duty of the EC to establish whether there is a casual vacancy.”
The judge said the court agrees with lawyer Tommy Thomas' (left) submission that it is within the speaker's right to accept the resignation letters.
However, Nik Hashim said the court does not agree with the speaker’s action to declare the seats vacant as this does not fall within the ambit of his power.
“The declaration of the vacancies of the seats by the speaker could not be said to fall within the proceedings of the state legislative assembly, as it did not involve and form part of the proceedings there.
“As such, the immunity from due process of the law as to the validity of any proceedings in the assembly as guaranteed under Article 72(1) of the federal constitution did not apply in this case.”
The apex court’s decision was unanimous, leading to the ruling that the speaker's action to declare the three state seats vacant as being null and void.
The defection of the three saw the Perak government change hands from Pakatan Rakyat to Barisan Nasional, 10 months after the general election last March.
It has also led to a protracted legal battle with ousted Pakatan menteri besar Mohammad Nizar Jamaluddin filing a judicial review application against BN's Zambry Abd Kadir.
While the High Court had ruled in Nizar's favour, resulting in a change of government for less than 24 hours, the Court of Appeal had ruled otherwise.
Nizar is now attempting to file a leave application over the appellate court’s decision.
Justice Nik Hashim Nik Abd Rahman (left), in a 20-page written judgment made available today, explained the ruling that Perak speaker V Sivakumar cannot interfere with the EC in determining whether such a vacancy has arisen.The written judgment came two months after the apex court had ruled on April 9, that three Perak assemblypersons would keep their seats, after leaving Pakatan Rakyat to turn ‘BN-friendly’ Independents last February.
“When the speaker receives the letter of resignation purported to be from the assemblypersons, it will not cause their seats to become vacant,” said Nik Hashim.
"Under Article 35 of the Perak constitution, the speaker's role is limited to receiving the written resignation letter of the assemblyman and forwarding it to the EC, which will then by its own procedure determine whether a casual vacancy has arisen or not.
“Once the casual vacancy is established, then it is the duty of the EC to fill the vacancy by holding a by-election. With the clear provisions of the respective powers of the EC and the speaker, the fear of an encroachment into the doctrine of separation of powers by one body into another does not arise.”
The judgment was by a five-member panel led by Court of Appeal president Alauddin Mohd Sheriff. Apart from Nik Hashim, the other judges were Chief Judge of Malaya Justice Ariffin Zakaria, Federal Court judge Justice S Augustine Paul and then Court of Appeal judge James Foong.
In February 2009, Sivakumar had received pre-signed resignation letters from the three assemblypersons and declared their state seats vacant. However, the EC refused to hold by-elections following ambiguity as to whether or not they had resigned voluntarily.
As a result, the trio - Mohd Osman Jailu (Changkat Jering), Jamaluddin Mohd Radzi (Behrang) and Hee Yit Foong (Jelapang) - sought a declaration that they had not vacated their seats.
The judgment confirmed that they remain the elected representatives for their respective seats.
‘Speaker can’t interfere’
Nik Hashim also gave a different take on the interpretation of the Perak constitution when he noted the phrase ‘shall become vacant’ is not part of Article 35 or Article 36(5) of the Perak constitution.
“Therefore, the position in Perak is different from that of India and Singapore in that the seat shall not become vacant merely by the fact that a resignation letter is being handed to the speaker,” he said.
“The speaker cannot therefore interfere with the constitutional duty of the EC to establish whether there is a casual vacancy.”
The judge said the court agrees with lawyer Tommy Thomas' (left) submission that it is within the speaker's right to accept the resignation letters.However, Nik Hashim said the court does not agree with the speaker’s action to declare the seats vacant as this does not fall within the ambit of his power.
“The declaration of the vacancies of the seats by the speaker could not be said to fall within the proceedings of the state legislative assembly, as it did not involve and form part of the proceedings there.
“As such, the immunity from due process of the law as to the validity of any proceedings in the assembly as guaranteed under Article 72(1) of the federal constitution did not apply in this case.”
The apex court’s decision was unanimous, leading to the ruling that the speaker's action to declare the three state seats vacant as being null and void.
The defection of the three saw the Perak government change hands from Pakatan Rakyat to Barisan Nasional, 10 months after the general election last March.
It has also led to a protracted legal battle with ousted Pakatan menteri besar Mohammad Nizar Jamaluddin filing a judicial review application against BN's Zambry Abd Kadir.While the High Court had ruled in Nizar's favour, resulting in a change of government for less than 24 hours, the Court of Appeal had ruled otherwise.
Nizar is now attempting to file a leave application over the appellate court’s decision.
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