The Federal Court will be asked to decide on who has the authority in determining whether a seat has become vacant or not - the state assembly speaker or the Election Commission.

This was the decision made by the Ipoh High Court today in hearing applications filed by three BN-friendly independents against speaker V Sivakumar for using their undated resignations letters to declare their seats vacant.

v sivakumar and perak independent state assembly people 050309 The three - Jamaluddin Mohd Radzi (Behrang), Mohd Osman Mohd Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) - want the court to declare that they have not resigned and were still elected representatives.

Their case arose following their defections from Pakatan Rakyat in February which resulted in Sivakumar stating that he had received their resignation letters and called for by-elections after declaring their seats vacant.

However the trio said that they had not submitted any resignation letters and claimed that Sivakumar had used their undated resignation letters. They also informed the EC that they had not resigned.

The EC then ruled out any by-elections as a result of that. However Sivakumar was adamant that the trio had resigned and refused to recognise them as elected representatives.

The matter was heard before Judicial Commissioner Ridwan Ibrahim this morning.

Legal team taken by surprise

Later in the day, Sivakumar's legal team said that they were caught by surprise by the application made by the lawyers for the three applicants to refer the matter to the Federal Court.

They said that the judicial commissioner, after hearing submissions of counsel for both sides, ruled that he has power to remit the suit to Federal Court pursuant to Article 63 of the Perak constitution.

"Lead counsel for the speaker, Chan Kok Keong then applied to stay the referral of the case to the Federal Court.

"After lunch, Chan also pointed out that no agreed facts had been placed before the Judicial Commissioner to decide whether there are any grounds to refer the matter to Federal Court," said Sivakumar's legal team in a statement.

They added that they also left the court without formulating any questions that should be posed to the Federal Court.

This was done to protect the interest of the speaker who was also appealing against the ruling of the High Court to the Court of Appeal, added the statement.

As such, they said, they were unable to participate or assist the court in the formulation of constitutional questions for the Federal Court.

Nizar's appeal

Meanwhile in Kuala Lumpur, ousted Menteri Besar Mohammad Nizar Jamaluddin filed an appeal against a decision by the High Court to transfer his case against Zambry Abd Kadir on the legitimate Perak menteri besar to the Federal Court.

Nizar's lawyers also filed a motion to stop the proceedings from taking place in the Federal Court this Friday, pending their appeal which will be heard at the Court of Appeal.

On March 6, High Court judge Lau Bee Lan ruled that there were constitutional issues that should be solved at the Federal Court in respect to Nizar's application.

perak pac hearing 050309 nizar Nizar's lawyers objected to the matter to be transferred to the Federal Court at this stage, stating that the High Court should first hear their leave application before passing the case to the upper court.

In the suit filed on Feb 13, Nizar, among others, is seeking a declaration that he is the rightful Perak menteri besar.

He is also seeking an interpretation of Article 16(6) of the Perak constitution on when can the menteri besar's post be vacated.

In his application, Nizar said Zambry should cite the authority that allowed him to legitimately become the menteri besar.

Nizar is also seeking a declaration that Zambry has no right to be menteri besar at any material time plus an injunction to prevent him or his agents from continuing his task and role as the menteri besar.