Constitutional conundrum has only just begun

By Debra Chong (The Malaysian Insider)

When the Election Commission over-ruled the Perak State Legislative Assembly Speaker and denied its Pakatan Rakyat government's call for by-elections yesterday, it set the stage for a constitutional conundrum.

Constitutional lawyer Malik Imtiaz Sarwar told The Malaysian Insider that the EC had overstepped its authority when it announced its decision not to hold any by-elections for the Behrang and Changkat Jering state seats.

"I think the EC has no power to rule as it did. It has no adjudicative function," said Malik.

"They are not a court. They must follow what the speaker says. Once the speaker has taken a stand, the EC can only carry out his decision. Their duty is to carry out elections, not to determine the basis of having elections," he added.

And Speaker V. Sivakumar made clear his stand on Monday when he announced the resignation of PKR assemblymen Jamaluddin Mohd Radzi and Mohd Osman Mohd Jailu from their seats in Behrang and Changkat Jering respectively while handing over their official quit papers to the state EC director.

"It is the speaker's right to conduct the proceedings in the House. Now that the speaker has taken the position that these two assemblymen are no longer members of the House, once the House reopens, he can say they no longer have a right to participate in its proceedings," Malik explained.

Malik agrees with DAP advisor and Ipoh Timur MP Lim Kit Siang who described the EC's actions as "unconstitutional" when it decided not to call for by-elections.

"I can't undersand why they made the decision when clearly they do not have the power to do so," said Malik, who did not foresee yesterday's outcome.

On Monday, Malik had told The Malaysian Insider the controversial PKR assemblymen would have to take their dispute to the court if they wanted to challenge the speaker's decision to strip them of their status.

But the EC has made its stand, which runs contrary to the speaker's, and this puts the Pakatan Rakyat-led state government at an impasse.

The only way to undo the EC's decision is for the state government, or political parties, or "anyone who wants the by-elections" to go to court, Malik said.

The problem is a court case takes time to be resolved, which is not in the best interests of the state government and the public.

"The state government has many other responisibilities. The situation is such that they will not be able to function without constantly looking over its shoulder at threats undermining the state's governance.

"In times of a financial crisis, this constitutional crisis is not in the best interests of the state," Malik observed.

"The state is now vulnerable to attacks, one way or another, which is the same fear expressed by the Sultan last year after the March general election," he added.

In his view, the most practical solution is for the menteri besar to seek another audience with Sultan Azlan Shah and ask for the dissolution of the state assembly, paving the way for a state-wide election and "a fresh mandate from the people".

A law professor with the International Islamic University, Abdul Aziz Bari, said the state government should follow the course of the law to extricate itself from the political quagmire.

"One thing at a time. First, they must apply to the High Court for an order of mandamus," said Abdul Aziz, explaining that a "mandamus" is a court order to compel a body, in this case the EC, to carry out its duty and call for by-elections.

"And if the High Court drags its feet, they can go straight to the Federal Court to compel the EC to perform its duty, or they can also go to the Court of Appeal and then to the Federal Court," he added, noting that it was in the public's best interests for the state to do it quickly.

The professor noted that any one of the state excos who want fresh elections would have enough locus standi to apply for the court order and not necessarily the menteri besar or the speaker.

"Under Article 113 of the Federal Constitution, the EC is under duty to conduct elections. This is the first time the EC is refusing to carry out its duty to hold elections," he observed.

Abdul Aziz described the EC's decision not to hold by-elections as "illogical", particularly after the chairman publicly acknowledged the power of the speaker, "which means he has accepted that the speaker has the final say, but is choosing not to do it".

"They have set a dangerous and inappropriate precedent," he said, sounding disturbed.