PUTRAJAYA (April 8 , 2009) : The Federal Court here today decided, for the first time, to hear and determine the constitutional issue over who has the power to declare vacancies in the Perak State Legislative Assembly seats.
The President of Court of Appeal, Tan Sri Alauddin Mohd Sheriff, who presided the five-member bench, held that the court had the jurisdiction to hear the issue under Article 63 of the Perak Constitution and had unanimously dismissed the preliminary objection by speaker V.Sivakumar, who challenged the matter being referred to the Federal Court.
The other four judges who sat with him were Chief Judge of Malaya Datuk Arifin Zakaria, Federal Court Judges Datuk Nik Hashim Nik Ab Rahman and Datuk S. Augustine Paul and Appeals Court Judge Datuk James Foong.
Three assemblymen -- Jamaluddin Mohd Radzi (Behrang), Capt (R) Mohd Osman Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) -- had applied for their suit against Sivakumar to be referred to the apex court under article 63 of the Perak Constitution 1957.
Jamaluddin and Mohd Osman were present in the court today.
On Monday, counsel for Sivakumar, Sulaiman Abdullah objected the application on the ground that the Federal Court had no jurisdiction to deal with Article 63 of the Perak Constitution as it was a pre-Merdeka Day legislation.
After the court reconvened at 11.35am, counsel Firoz Hussein Ahmad Jamaluddin, for the three assemblymen, pronounced the constitutional question for the court's determination: "Whether on the true interpretation of Article 36 (5) of the Perak Constitution, read together with section 12 (3) of the Election Act 1958, the Election Commission is the rightful entity which establishes if there is a casual vacancy of a state legislative assembly seat of Perak."
"The proper way to interpret Article 36 (5) is that, the casual vacancy is a vacancy established by the Election Commission, and not by the Speaker. There is no provision for the Speaker to establish a casual vacancy.
" The provision in Article 36 (5) should be read with section 12 (3) of the Election Act, when we read and look at the two provisions, it is clear that the establishment of a casual vacancy is by the Election Commission," argued Firoz Hussein.
On Feb 2, this year, Sivakumar had announced that Jamaluddin and Mohd Osman, both from PKR, had submitted resignation letters and declared that their seats were vacant, however the Election Commission chairman, Tan Sri Abdul Aziz Mohd Yusuf, later declared they were still the assemblymen for the two seats and no by-elections would be called, he said.
At this juncture, counsel Tommy Thomas, also for Sivakumar, interjected: "When the Federal Court is not exercising its original jurisdiction, some direction must be given (to the parties). We want to make sure our right to put in affidavits will not be prejudiced. But we do not have opportunity to put in our affidavits, we need time to do it," he said.
Attorney-General Tan Sri Abdul Gani Patail stood up and urged the court not to delay the hearing of the matter.
"The question here arises from the letter (by Sivakumar) and the provision of the constitution that needs to be interpreted. What further evidence could there be?
"The government must run in Perak and time is an essence. Let's have the matter dealt (with) once and for all," he said.
"We are not putting any new evidence. We are purely seeking for the interpretation of the Perak Constitution. We need to resolve the Perak crisis as soon as possible," said Firoz Hussein.
"With respect, we cannot understand the urgency, life goes on," replied Tommy.
Justice Arifin then ordered the respondent (Sivakumar) to file in their affidavits, the latest by tomorrow morning, and adjourned the hearing to 9.30am tomorrow. -- BERNAMA