PUTRAJAYA: The continuing bid by the Perak Pakatan Rakyat (PR) to regain power in the state was hit by a near-fatal blow today when the Federal Court ruled that the Election Commission and not the state legislative speaker had the power to decide on vacancies in the state assembly.
With this ruling, the three former PR state lawmakers who have become Barisan Nasional (BN) friendly independents will be allowed to keep their seats.
After hearing lengthy submissions by both legal teams, the judges delivered a unanimous decision declaring that the Jelapang assemblyman Hee Yit Foong, Behrang assemblyman Jamaluddin Mohd Radzi and Changkat Jering assemblyman Mohd Osman Mohd Jailu, were allowed to keep their positions as state assemblymen in accordance to the decision made by the Election Commission.
The five-men bench consisted of President of the Court of Appeal Tan Sri Alauddin Mohd Sheriff, Chief Judge of Malaya Justice Arifin Zakaria, Federal Court Justices Nik Hashim Nik Ab Rahman, S. Augustine Paul, and Court of Appeal Justice James Foong.
Lead counsel for the Election Commission Firoz Hussein Ahmad Jamaluddin argued that the EC was an independent body given jurisdiction by the State and Federal constitutions.
"Paragraph 6 under Section 12-3 says a casual vacancy is a vacancy established by the EC," said Firoz Hussein.
However lead counsel for Speaker V. Sivakumar Tommy Thomas argued that any proceedings of the State Assembly cannot be questioned in any court, a law that also covers parliament.
"If that is not proceedings, then I don't know what is," argued Thomas as he referred to Sivakumar's letter to the EC asking them to hold by-elections after receiving resignation letters from both Mohd Radzi and Mohd Osman.
During the hearing Justice James Foong however noted that by giving the EC power to make such decisions would set a dangerous precedence that could affect the Dewan Rakyat.
"If we allow one body to have supreme jurisdiction then we are getting into trouble. I am talking about checks and balances. You will realise that this will have far reaching consequences stretching to the Dewan Rakyat," said Foong as he questioned the Attorney-General
Tan Sri Abdul Gani Patail.
The five-men panel however reassured Sivakumar's counsel that the decision will not have any prejudice in terms of the two other suits that are currently being heard in the Kuala Lumpur High Court where there are two suits filled against the Election Commission decision to
not hold by-elections.
Speaking to The Malaysian Insider counsel for Sivakumar, Ranjit Singh asserted that the result of today's case only meant that the Election Commission is the correct body to make the decision on such an issue but the decision still can be challenged.
"Just because the Election Commission can make the decision, however. that doesn't make it right. In any government decision, it is subject to challenge in court," said Singh.
MI
09/04/09
With this ruling, the three former PR state lawmakers who have become Barisan Nasional (BN) friendly independents will be allowed to keep their seats.
After hearing lengthy submissions by both legal teams, the judges delivered a unanimous decision declaring that the Jelapang assemblyman Hee Yit Foong, Behrang assemblyman Jamaluddin Mohd Radzi and Changkat Jering assemblyman Mohd Osman Mohd Jailu, were allowed to keep their positions as state assemblymen in accordance to the decision made by the Election Commission.
The five-men bench consisted of President of the Court of Appeal Tan Sri Alauddin Mohd Sheriff, Chief Judge of Malaya Justice Arifin Zakaria, Federal Court Justices Nik Hashim Nik Ab Rahman, S. Augustine Paul, and Court of Appeal Justice James Foong.
Lead counsel for the Election Commission Firoz Hussein Ahmad Jamaluddin argued that the EC was an independent body given jurisdiction by the State and Federal constitutions.
"Paragraph 6 under Section 12-3 says a casual vacancy is a vacancy established by the EC," said Firoz Hussein.
However lead counsel for Speaker V. Sivakumar Tommy Thomas argued that any proceedings of the State Assembly cannot be questioned in any court, a law that also covers parliament.
"If that is not proceedings, then I don't know what is," argued Thomas as he referred to Sivakumar's letter to the EC asking them to hold by-elections after receiving resignation letters from both Mohd Radzi and Mohd Osman.
During the hearing Justice James Foong however noted that by giving the EC power to make such decisions would set a dangerous precedence that could affect the Dewan Rakyat.
"If we allow one body to have supreme jurisdiction then we are getting into trouble. I am talking about checks and balances. You will realise that this will have far reaching consequences stretching to the Dewan Rakyat," said Foong as he questioned the Attorney-General
Tan Sri Abdul Gani Patail.
The five-men panel however reassured Sivakumar's counsel that the decision will not have any prejudice in terms of the two other suits that are currently being heard in the Kuala Lumpur High Court where there are two suits filled against the Election Commission decision to
not hold by-elections.
Speaking to The Malaysian Insider counsel for Sivakumar, Ranjit Singh asserted that the result of today's case only meant that the Election Commission is the correct body to make the decision on such an issue but the decision still can be challenged.
"Just because the Election Commission can make the decision, however. that doesn't make it right. In any government decision, it is subject to challenge in court," said Singh.
MI
09/04/09
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