Mohamed Hanipa Maidin sits on the Pas central committee and is the Pas legal adviser. He is also a lawyer who blogs at peguampas.blogspot.com
On Thursday the Federal Court declared that the three independent Perak state assemblymen have not resigned and remain as state assemblymen. A five-man panel, in an unanimous decision, made this declaration after it ruled that the Election Commission has the right to decide the status of the three state seats.
The three — Hee Yit Foong (Jelapang), Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Mohd Jailu (Changkat Jering) — had applied to the Federal Court for an interpretation of points of law in the Perak Constitution with regard to vacancies of state seats and whether it was the EC or the Speaker of the Perak legislature who had the final say in determining the vacancy of a state seat.
Court of Appeal president Justice Alauddin Mohd Sheriff, who chaired the panel, said the EC was the rightful entity to establish if a seat in the Perak State Assembly was vacant.
One may ask whether the Federal Court decision finally determines once and for all the legal status of the three assemblymen. The simple answer is a resounding no.
Before I share the reasons, it is germane to highlight here the thrust of the Federal Court’s judgment.
Basically the court was asked to determine the following issue, namely which authority has the power to determine the casual vacancy of the three state seats. Was the power vested in the speaker or the EC?
Since the court ruled that the power was vested in the EC, the latter was therefore entitled to establish that the three state seats were not vacant. Be that as it may the EC was not required to hold any by-election in those three state seats.
As the EC had made a decision that the three state seats were not vacant, it therefore follows that the three state assemblymen remain as state assemblymen.
It is submitted that despite the aforementioned decision of the Federal Court, the legal status of three assemblymen could still be challenged. There are few reasons for that.
The Federal Court merely decided which authority was empowered to determine the casual vacancy of the state seats. Nothing more, nothing less.
Just because the EC has the power to determine the casual vacancy of a state constituency, that does not ipso facto mean such a decision is valid and good in the eyes of law. The legality of the decision of the EC may still, under the law, be challenged by any aggrieved party.
The Federal Court’s judgment did not touch upon the issue of the legality of the EC’s decision and the reason being it was not asked to do that by the three assemblymen.
It is trite law that any decision by a public authority such as the EC is susceptible to judicial review. Since the court has not decided on the legality issue of the EC’s decision, the EC’s decision can still be quashed by the court if it is proven that it was legally flawed or tainted with elements of illegality or irrationality or procedural impropriety or bias or mala fide, etc.
To his credit, Perak Speaker V. Sivakumar has filed an application for a judicial review against the decision of the EC in the Kuala Lumpur High Court. The latter has fixed the hearing of the application in May.
Even the Federal Court conceded that its decision did not prejudice the judicial review application filed by Sivakumar. When one of the lawyers representing Sivakumar, Ranjit Singh, asked if the decision meant that it would be without prejudice to two related judicial review applications in the Kuala Lumpur High Court, Justice Alauddin said: “It is understood (that it would be without prejudice).”
In the circumstances, until and unless the court has finally determined the status of the three assemblymen via the judicial review application by Sivakumar, the status of the former remains in limbo despite the Federal Court’s decision.
If that is the case one may ask whether Sivakumar has the power to restrain the three assemblymen from entering the state assembly. Frankly speaking I can see no reason for Sivakumar not to exercise his power to bar these three individuals from going in.
Nowhere in the Federal Court’s judgment is said that Sivakumar is prohibited from restraining the three state assemblymen from entering the state assembly. The three assemblymen merely obtained declaratory reliefs and such reliefs, from the legal perspective, are incapable of imposing any obligations on Sivakumar. In other words as far as Sivakumar is concerned , the declaratory reliefs obtained by Umno are impotent.
In short, one may conclude that the Federal Court may send the three assemblymen in but it seems to me that the Federal Court implicitly allows Sivakumar to send them out in the absence of any order restraining Sivakumar from doing that.
Despite the victorious judgment obtained by Umno, that per se does not help it in curbing Sivakumar’s power. No matter what it takes, Umno has to acknowledge that Sivakumar remains its stumbling block “dulu, kini dan selamanya”. ---The Malaysian Insider
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