The High Court here today set Jan 14 next year to decide on an application by former Perak State Assembly speaker V Sivakumar and six others for a judicial review of the Election Commission's (EC) decision not to hold by-elections for three state seats in Perak.

Justice Aziah Ali set the date after hearing submissions from all parties.

Prior to setting the date, she dismissed an application by lawyer Ambiga Sreenevasan, who represented the six applicants, to remove Abdul Latif Arifin as an applicant in the case on grounds that he (Abdul Latif) was not a voter in Changkat Jering.

Following the court's rejection to remove Abdul Latif as an applicant in the case, senior federal counsel Kamaluddin Md Said requested that the court dismissed the application for the judicial review because there was no locus standi as the applicant was not a voter in the constituency concerned.

Aziz said she would also decide the matter on the same day.

On Oct 22 last year, the six applicants were granted leave to initiate a judicial review application to quash the EC's decision in not declaring the Behrang, Changkat Jering and Jelapang state seats vacant following the decision of the three assemblymen to be independent members of the state assembly.  

The applicants are Sivakumar, Chen Fook Chye, Tai Sing Ng and A.Sivanesan – and three voters, Ahmad Sabry Wahab (Behrang), Abdul Latif Ariffin (Changkat Jering) and Foo Hon Wai (Jelapang).

In the judicial review application, they named the EC and three assemblymen - Jamaluddin Mohd Radzi (Behrang), Mohd Osman Mohd Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) as respondents.

They wanted the court to compel the EC to declare the seats vacant following the resignation of three assemblymen from PKR and DAP, and an injunction to stop the trio from acting and carrying out the functions and duties of assemblymen.

Question over purported resignation letters

Meanwhile, Ambiga, in her submission, said the EC should have called all parties involved before making any decision.

The EC should have studied the resignation letter submitted to Sivakumar by Jamaluddn and Mohd Osman on Jan 30, 2009, and by Hee on Feb 3, 2009, he added.

He said that denial by Jamaluddin, Mohd Osman and Hee that they did not send the resignation letters was not answered and that it had raised a question as who wrote and sent the letters.

Kamaluddin submitted that the EC had made the right decision at that time and requested that the court dismissed the application with cost because the three state seats were still held by Jamaluddin, Mohd Osman and Hee.

He also said that the purported resignation of the first, second and third respondent did not render the seats to be vacant automatically, adding that the seats would only be vacant once established by the SPR to be vacant under article XXXVI(v) of the Perak state constitution.

"It is therefore clear that under the Perak constitution, it is the exclusive constitutional duty of the EC to establish casual vacancy.

"Since there is no express provision on how the determination of such casual vacancy is to be carried out, what is pertinent is that in exercising its constitutional duty, the EC must exercised it without improper motive, has not misdirected itself in law or has not taken into account irrelevant matters or that its decision militates against the object of the statute.

"Following the decision in Jamaluddin's case, the speaker's role is limited to receiving the written resignation letter of the assemblyman and than forwarding the same to the EC which will then, by its own procedure, determine whether a casual vacancy has arisen or not. There is no express provision that requires the EC to hold an inquiry," he said.       

- Bernama