Bar slams Federal Court for saying EC decides on vacancies

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KUALA LUMPUR, June 15 – The Federal Court says it is the Election Commission (EC), and not the legislative assembly speaker, who has the right to decide whether or not a seat is vacant, according to its written judgment in the recent Perak case where three state lawmakers sued Speaker V. Sivakumar.

“The Federal Court has set a dangerous precedent,” the Bar Council president told The Malaysian Insider in an immediate comment on the written grounds recently given out.

Based on the ruling, Ragunath Kesavan said, the EC could easily declare a seat vacant and call for a by-election once a lawmaker hands in his resignation letter, whether it is accepted or rejected by the speaker.

The possibility of it happening may not be far off. In Penang, the DAP state assemblyman Tan Beng Huat handed in his undated quit letter to the speaker last week after a fellow DAP leader had reported him to the Malaysian Anti-Corruption Commission (MACC) for corruption.

The ruling appears to give more power to the EC than it should rightfully have, said Ragunath.

He explained that the EC is not an elected body, unlike the state legislative assembly, and that its role is merely to carry out elections.

“That’s why when an elected member of the assembly quits, the resignation letter is addressed to the head of the House and not to the EC,” said Ragunath.

He added the landmark ruling makes a “mockery” of the maxim of separation of powers provided for in the Malaysian Constitution.

But Federal Court judge Tan Sri Nik Hashim Nik Ab Rahman said in his written judgment: “With the clear provisions of the respective powers of the Election Commission and the Speaker, the fear of encroachment into the doctrine of separation of powers by one body into another does not arise.”

The Federal Court decision was delivered orally on April 9 but the written grounds were only given out to the media today.

The five-man panel of judges led by Court of Appeal president Tan Sri Alauddin Mohd Sheriff had unanimously ruled in favour of the three Pakatan Rakyat-turned-independent state assemblymen for Behrang, Changkat Jering and Jelapang.

Jamaluddin Mohd Radzi (Behrang), Capt (Rtd) Mohd Osman Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) disputed then Perak Speaker Sivakumar’s decision to accept their pre-signed but undated resignation letters to be against the law provided under Article 36(5) of the Perak Constitution.

Justice Nik Hashim said: “On a plain reading of Article 36(5) of the Perak Constitution read together with section 12(3) of the Elections Act 1958, it is the Election Commission that establishes the casual vacancy and not the Speaker.”

Interestingly, the written judgment also notes that not all vacancies are to be decided by the EC.

Justice Nik Hashim noted that the Federal Constitution and the state constitutions of Perak, Perlis, Kedah, Penang, Pahang, Malacca, Kelantan and Sarawak clearly give the authority to the EC.

“A casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy,” he said, stressing on the word “established”.

The Sabah constitution is “silent” on who or which body has the power to “establish” casual vacancies while the state constitutions for Selangor, Negri Sembilan, Johor and Terengganu make it clear the EC plays no role in deciding the vacancy of a seat, Justice Nik Hashim observed.

“A casual vacancy shall be filled within sixty days from the date on which it occurs,” he highlighted. MalaysianInsider