The Federal Court will decide on Wednesday whether it has jurisdiction to interpret on who could declare the Perak seats vacant, whether it is the speaker or the Election Commission.

v sivakumar and perak independent state assembly people 050309 This comes after a preliminary objection raised by counsel, Sulaiman Abdullah, representing speaker V Sivakumar, who submitted the Federal Court had no jurisdiction to interpret matters brought up straight from the High Court on a constitutional issue brought by a state, namely Perak.

Sulaiman said Article 63 of the Perak Constitution 1957 on interpretation, was formulated pre-Merdeka, and it only stipulates there exists a Supreme Court and not a Federal Court.

"As in this case, the Supreme Court was only meant as the High Court and the Court of Appeal. There was no mention of the Federal Court as it had yet to be formed," he said.

"As such any referral of jurisdiction on the Supreme Court as stipulated in the Perak Constitution must have meant the High Court or the Court of Appeal. There is no jurisdiction to entertain this application by the three BN-friendly independent assemblypersons made under Article 63 of the Perak Constitution to interpret the matter directly from the High Court."

sulaiman abdullah Sulaiman said if the apex court would want to hear the matter, it would be via the normal appeal process, that is the matter to be heard at the High Court and then the Court of Appeal and lastly to the Federal Court.

"It (the application) cannot be made directly from the High Court where the decision had yet to be made."

Today's matter saw a history lesson in Malaysia's court systems as the Federal Court was only formed in 1963 following the formation of Malaysia. It was later reverted to Supreme Court when the Federal Court was renamed the Supreme Court.

In 1994, the Supreme Court was renamed the Federal Court.

Five-member panel at today's hearing

Sulaiman also submitted that the amendment to the Perak Constitution made in 1997, in replacing the word Supreme Court to Federal Court was void, as the state constitution was not a federal law, and such amendments could only be approved by Parliament.

The hearing today was before a five-member panel led by Court of Appeal president justice Alauddin Md Sheriff.

The other members of the panel were Chief Judge of Malaya justice Ariffin Zakaria, justice Nik Hashim Nik Ab Rahman, justice S Augustine Paul and Court of Appeal judge justice James Foong.

The case appeared before the apex court following the matters to be interpreted as brought by the three assemblypersons namely:

(1) Who can declare the Perak state seats vacated? Is it the speaker or the Election Commission;

(2) Who could decide on the resignation letters submitted to the speaker.

This follows an application for judicial review sought by the three assemblypersons namely Jamaluddin Mohd Radzi (Behrang), Mohd Osman Jailu (Changkat Jering) and Hee Yit Foong (Jelapang), who have now become independents after leaving Pakatan Rakyat.

They are disputing Perak speaker V Sivakumar's decision to declare their seats vacant based on their undated resignation letters and in calling for by-elections.

The Election Commission, meanwhile, after receiving letters from the trio of their intention to remain as elected representatives, has rejected the speaker's call for by-elections, stating that the seats have not become vacant.

'Federal Court can hear application'

lingam tape panel meeting 031007 abdul gani patail Attorney-General Abdul Gani Patail who appeared for the commission responded by saying that matter should be heard for speedy determination of an issue of utmost importance.

Abdul Gani said Article 63 of the Perak Constitution validly conferred jurisdiction to the Federal Court.

"Article 63 of the Perak Constitution validly enabled, preserved and confer jurisdiction to the Federal Court to hear the application, as Article 121 (2) (c) of the Federal Constitution must be read together with Article 63.

"It is proper and appropriate for the Federal Court to hear the application under Article 63 of the Perak Constitution, for speedy determination to resolve the present scenario," he said.

Counsel Firoz Hussin Ahmad Jamaluddin, representing the three assemblypersons, said he adopted the submissions made by Abdul Gani and added the Federal Court has interpretative powers on the constitutional issue.

The application was made by the three assemblypersons who wanted the High Court to refer the matter under Article 63.

Appearing with Sulaiman are lawyers Tommy Thomas, Philip Koh, Chan Kok Keong, Edmund Bon, Amer Hamzar Arshad and Razlan Hadri Zulkifli.

Appearing together with Firoz were Mohd Hafarizam Harun and M Reza Hassan.

Assisting Abdul Gani were Tun Majid Tun Hamzah, Suzana Atan Kamaluddin Md Said and Azizah Nawawi.