Court: EC to declare seat vacancies, not Speaker

(Bernama) – It is for the Election Commission (EC), and not the Perak state assembly Speaker, to declare whether or not a state seat is vacant, the Federal Court ruled.

Federal Court judge Tan Sri Nik Hashim Nik Ab Rahman, in his 20-page judgment, said that under section 12(3) of the Elections Act 1958, the EC would have to establish that a vacancy existed before issuing a writ of by-election.

Therefore, the Speaker could not interfere with the constitutional duty of the EC to establish whether there was a casual vacancy.

"On a plain reading of Article 36(5) of the Perak Constitution, read together with section 12(3) of the Elections Act, it is the EC that establishes the casual vacancy," Nik Hashim said in the judgment dated June 8, his last before he retires on July 1.

"Hence, we unanimously rule that the decision of the Speaker declaring the three state seats vacant was unlawful and therefore null and void as the decision was contrary to Article 36(5) of the Perak Constitution," he said.

A copy of the judgment was made available to the media today.

Nik Hashim said the receipt by the Speaker of a letter of resignation purporting to be from assemblyman had not caused the seat to be vacant as under Aricle 35 of the Perak Constitution, the Speaker's role was limited to receiving the written resignation letter and forwarding the letter to the EC.

He said the EC then, by its own procedure, would determine whether or not a casual vacancy had arisen.

"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 encroachment into the doctrine of separation of powers by one body into another does not arise," he said.

On April 9, a five-man bench led by Court of Appeal President Tan Sri Alauddin Mohd Sheriff held that the three Perak state assemblymen who quit their parties to become independent assemblymen could keep their seats after ruling that the EC had the right to declare whether or not a state seat was vacant.

In a landmark decision, Alauddin granted an application by the trio — Jamaluddin Mohd Radzi (Behrang), Capt (Rtd) Mohd Osman Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) — to declare that they were the state assemblymen for the three constituencies.

The other four judges were Chief Judge of Malaya Tan Sri Arifin Zakaria, Federal Court judges Nik Hashim and Datuk Seri S Augustine Paul and Appeals Court judge Datuk James Foong (now a Federal Court judge).

The three assemblymen had applied for their suit against Sivakumar to be referred to the apex court on the grounds that it involved constitutional issues.

They originally filed the suit at the High Court Ipoh seeking a declaration that they were the valid elected representatives for the three constituencies although Sivakumar had announced that the seats were vacant.

Nik Hashim said the court agreed that it was within the Speaker's right to accept the resignation letters but did not agree with the Speaker's action of declaring the state seats vacant as it did not fall within his power to do so.

He said 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 (SLA) as it did not involve and form part of the proceedings in the SLA.

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, he said.