Sivakumar vs EC: Leave decision on Sept 29

The Kuala Lumpur High Court today fixed Sept 29 to decide on Perak Pakatan Rakyat speaker V Sivakumar's leave application for judicial review against the Election Commission.

Justice Lau Bee Lan fixed the date in her chambers after hearing two and a half hours of submissions by former Bar Council chairperson S Ambiga representing Sivakumar and senior federal counsel Kamaluddin Mat Said.

The judicial review is to challenge the EC's decision in not declaring three state seats vacant to hold by-elections after Sivakumar had declared the seats vacant.

At the same time, Lau also heard applications by three Pakatan assemblypersons and three other persons from the affected constituencies of Changkat Jering, Behrang, and Jelapang.

They too, wanted a review of the EC's decision not to declare the three state seats vacant.

Ambiga submitted that Sivakumar's application was not academic in light of the Federal Court's decision in the Changkat Jering, Behrang and Jelapang assemblypersons' legal action against Sivakumar (left).

"The other case as mentioned by the apex court would not have an effect on this case. Hence, this is not academic but still a live issue.

"The application was made because Sivakumar accepted the resignation letters from the three assemblypersons and declared their seats vacant.

"However, on passing the letter to the EC, the EC claimed otherwise and said those seats were not vacant," she said.

Ambiga said it is their contention that the Speaker had the right to accept the letters of resignation and also declare the seats vacant as it was part of his duties.

The apex court in its decision announced by Chief Judge of Malaya Justice Ariffin Zakaria had contended that despite their decision on April 9, it would not prejudice the other two on-going suits which have yet to be heard.

EC's decision based on uncertainty

Ambiga also submitted the EC had made the wrong decision as it was basing it on an uncertainty over the status of the resignations.

"The EC arrived at a conclusion based on its non-decision over the status of the resignation letters," she said.

When the Perak political crisis happened, Sivakumar submitted the resignation letters to the EC while the three assemblypersons had also sent in letters to the commission denying that they had resigned.

The three assemblypersons are Mohd Osman Jailu (Changkat Jering), Jamaluddin Mohd Radzi (Behrang) and Hee Yit Foong (Jelapang).

Their sudden defection to become BN-friendly independents had resulted in the fall of the Pakatan government in February.

Ambiga (right) submitted the consequences of the trio's action had shifted the balance of power and Pakatan lost control of the Perak government.

She said all Sivakumar had to show was how he and the Pakatan government had been "adversely affected" by the trio, and consequently the EC's decision which resulted in the shift in balance of power.

"Hence, leave should be granted by the court to hear the applicant's (Sivakumar) full application," said Ambiga.

Sivakumar, in his application is seeking an order for the three BN-friendly assemblypersons to present authorities or powers stipulating they are still elected representatives for Behrang, Changkat Jering and Jelapang.

He named Jamaluddin, Mohd Osman, Hee and EC as respondents. In addition, he is seeking:

• that the three state seats be declared vacant and cleared following the resignation of the three representatives from Pakatan;

• an injunction against the three respondents or their agents to make a representation that they are the rightful elected representatives and are responsible, with the functions and job as a state assemblypersons;

• an order of certiorari to quash the EC's decision not to call for by-elections in Behrang, Changkat Jering and Jelapang;

• an order of mandamus (to compel) the EC to hold by-elections in the three state seats; and
• punitive, aggravated and exemplary damages from the court as a result of the course of the action and other relief sought and awarded by the court.

Kamaluddin from the Attorney-General's chambers, representing the EC, submitted that the apex court had ruled that the speaker's action of declaring the three seats vacant was unlawful, as it did not fall within his power to do so ,and was contrary to Article 36 (5) of the Perak Constitution.

"It is also our submission that the Federal Court's decision is binding on this honourable court on the principle of stare decisis (to stand by things that had already been decided)," said Kamaluddin.

He also submitted that Sivakumar had no arguable case as Article 36(5) of the Perak constitution clearly empowers the EC to establish and ascertain whether there is a vacancy, and if there is, declare the effective date of such vacancy.

"The Perak constituion clearly empowered the EC and not the speaker to establish and ascertain the casual vacancy," submitted Kamaluddin.