sivakumar and teng chang khim forum at klscah 290509 03 The Kuala Lumpur High Court's Appellate and Special Powers division today postponed to Oct 22, former Pakatan Rakyat speaker V Sivakumar's (right) application to obtain leave (permission) for a judicial review over an Election Commission decision not to declare three state seats.

The three contentious state seats are Changkat Jering, Behrang and Jelapang said to have been vacant after he had received the resignation letters of the respective assemblypersons.

Justice Lau Bee Lan deferred delivering her judgment as she wants clarification whether the Speaker has the right to accept the resignation letters and declare the seats vacant or does he act as a mere "postman" in delivering the letter to the EC.

The two-and-a-half hour submission in chambers was done by lawyer Edmond Bon and Razlan Hadri Zulkifli who represented Sivakumar whilst the Attorney General's Chambers Appellate and Trial division head Kamaludin Md Said and Suzana Atan represented the EC.

Razlan Hadri, when met, said Justice Lau is seeking a clarification on the matter before giving her verdict although today was initially fixed for the decision.

NONE The Federal Court had, in May, decided that the EC can declare a seat to be vacant.

"However, it also states that the Speaker has the right to accept the resignation letters of the three assemblypersons. So, what does this phrase mean?"

"Does it mean the Speaker can actually accept the resignation of the three assemblypersons or does it mean that he accepts the resignation letter in the sense that he is a ‘postman'?" said Razlan Hadri.

EC failed to exercise its powers

Razlan felt that under the Perak constitution, Sivakumar has the right to accept the resignation of the assemblypersons. Furthermore, there are certain statements in the Federal Court judgment which seemed to support his position.

"A Speaker has the right to ask the court to enquire about the EC's decision. We contend the EC did not exercise its discretionary powers properly. It was an unreasonable and irrational decision," he said.

Kamaluddin however argued that Sivakumar's application was academic following the apex court's decision in which ruled that the Speaker had acted beyond his powers under the Perak constitution.

Sivakumar, in his application filed on March 10, is seeking an order for the three BN-friendly assemblypersons to prove that they are still the rightful-elected representatives for Behrang, Changkat Jering and Jelapang.

He named Jamaluddin Mohd Radzi (Behrang), Mohd Osman Jailu (Changkat Jering), Hee Yit Foong (Jelapang) and the EC as respondents.

In addition, he is seeking:

  • that the three state seats be declared vacant and cleared following the resignation of the three representatives from Pakatan;
  • an injunction against the three respondents or their agents in making a representation that they are the rightfully elected representatives, responsible for the job and functions of a state assemblyperson;
  • an order of certiorari to quash the EC's decision not to call for by-elections in Behrang, Changkat Jering and Jelapang;
  • an order of mandamus (to compel) the EC to hold by-elections in the three state seats; and
  • punitive, aggravated and exemplary damages as a result of this legal action.

Their sudden defection and eventually becoming BN-friendly independents had resulted in the fall of the Pakatan government in February.

Besides Sivakumar's application, there are six others, including three former Pakatan Rakyat executive councillors, who also made a similar request to challenge the EC's decision.

Sivakumar has to obtain leave for the merits of his case to be heard further for the court to consider the application.