Federal Court: Independents can keep seats

Federal Court: Independents can keep seats
Tan Yi Liang

PUTRAJAYA (April 9. 2009) : The Federal Court held today that it is the Election Commission (EC) and not the State Assembly Speaker who has the power to declare the Behrang, Changkat Jering and Jelapang seats in Perak vacant.

It declared that the assemblymen for the three seats -- Mohd Osman Mohd Jailu (Changkat Jering), Jamaluddin Mohd Radzi (Behrang) and Hee Yit Foong (Jelapang) -- can keep their seats as independent members of the state assembly.

"The Election Commission is the rightful entity which establishes that there is a casual vacancy of the seats in the state assembly," said Court of Appeal President Tan Sri Alauddin Mohd Sheriff, who read out the unanimous decision of the five-man quorum which included Chief Judge of Malaya Datuk Arifin Zakaria, Federal Court Judges Datuk Nik Hashim Nik Ab Rahman and Datuk Augustine Paul, as well as Court of Appeal Judge Datuk James Foong.

In submissions before the court today, counsel for the three, Firoz Hussein Ahmad Jamaluddin had said that it was "clear" under Article 36(5) of the Perak State Constitution that it was the EC and not the Perak State Speaker V.Sivakumar who had the power to declare the three seats vacant.

"In determining or establishing a casual vacancy, the EC can go beyond merely accepting a letter from the Speaker. The word 'establishes' means that the EC has to prove the resignation beyond doubt, and that is where Article 36(5) of the Perak State Constitution comes in. The Speaker has no role in establishing a casual vacancy," said Firoz.

He then added that Article 35 of the Perak State Constitution, which gives the Speaker powers to declare seats vacant must be read in concert with Article 36(5)

"Article 35 states that the Speaker's role is to receive a letter (of resignation) written and handed to him, but it must be read with Article 36(5) where a casual vacancy must be filled once the EC establishes it. The Speaker merely receives the letter, that is all," said Firoz, who was accompanied by Attorney General Tan Sri Gani Patail, who called for a distinction between casual vacancies of seats and disqualification of assemblymen.

"I am differentiating between casual vacancies and disqualifications. Each state has their own requirements, and the requirements are made very, very clear," said Patail, who cited clauses from various state constitutions to point out the difference.

However, Sivakumar's counsel Tommy Thomas submitted that the court was not the forum to discuss the issue as Sivakumar's decision was part of his duties as Speaker of the Perak State Assembly and as such was not subject to court scrutiny.

"When the Speaker did what he did (to declare the seats vacant), it was part of the business of the house. They are matters for the State Assembly to decide and not the courts," said Thomas who added that Sivakumar's decision was not frivolous.

Thomas said that the role of the EC was merely "administrative" in nature.

"All the Election Comission does is an administration role, and that is to fix the date. Who tells the EC of a vacancy? The only source is the Speaker. The only person who can write to the EC is the Speaker," said Thomas, who was supported by co-counsel Sulaiman Abdullah.

"The house and the EC have separate functions, and the consequence (of the separate functions) is this. The house decides on vacancies and the composition, and the EC deals with the process of elections," he said.

"The EC is forced to make a decision when the house has informed them of a vacancy. They do not decide whether the letter (of resignation) is valid. That is the role of the Speaker. The EC has no business establishing the fact of a casual vacancy. The member (of the State Assembly) who is deemed to have resigned has only resigned from the moment the Speaker says so," added Sulaiman.

He pointed out that if the EC were meant to decide, "then surely there would be procedures to deal with that."

"The first step the EC must take is to be notified of the vacancy before fixing nomination and polling dates," said Sulaiman.

Meanwhile, Ranjit Singh, a member of Sivakumar's legal team said that today's decision was not the end of the road for Sivakumar.

"We have filed two suits seeking a writ of quo warranto from the three independents, saying that they are impostors to their posts, and we also seek relief against the EC seeking to quash the decisions not to hold the by-elections and we want an order compelling the EC to hold the by-elections. That matter is fixed in May for our judicial review application," said Ranjit Singh.
"One of the suits was brought by Sivakumar, while another was brought by a group of six people, three Pakatan assemblymen and three voters," he added, saying that both suits were virtually the same.

"They both take the position that the EC was wrong and that the three independents had in fact resigned, and by-elections should be held," said Ranjit who pointed out that the court allowed for challenges to be brought against the EC

"The court held that the EC and not the Speaker holds the power. But what the court did not say was that the EC's decision was correct. We can challenge the EC in the High Court. If we lose that, then all is gone. But if we win that, then they have to hold by-elections," said Ranjit.
"It does not mean that the decision of the EC cannot be challenged. Just because it is a decision of the EC, does it make that right. All government decisions can be challenged in court," he added.