Just as Malaysians were held spellbound by another round of the country’s unique brand of ‘missing persons’ politics, we are hit by another bombshell – the unprecedented move by the Election Commission (EC) to overrule a decision by the Speaker of a legislature to accept the resignations of members of the legislature.

ec announces no by election will be held in perak 030209 spr chairman 02 When newly installed election commission chairman Abdul Aziz Yusof yesterday announced that two assemblymen from the Perak state assembly should continue to hold their positions as assemblymen, despite having received a notification from the Speaker that the duo have resigned, the EC was in fact telling the speaker: "Your acceptance of the resignations is no good, we don’t recognise it, so the two will remain assemblymen, and there won’t be any by-election."

Sure, the EC did not use these exact words to reject the Speaker’s decision, in fact, it said "The EC has decided that it cannot establish that vacancies have occurred", and went on to say "We have decided that both the seats will remain with the incumbents" and that there would be no necessity to call for by elections".

But doesn’t this amount to a flat rejection of the Speaker’s acceptance of the resignations, as without repudiating the Speaker’s decision, the EC had no reason to declare that there was no vacancy?

When were the laws amended, allowing the EC to take over the function of the Speaker to accept or not to accept the resignation of members of the legislature? What legal standing does the EC have to claim a say over the membership of a legislature?

What legal power does the EC have to interfere in the exercise of the Speaker’s authority to run the affairs of the legislature? Isn’t the decision over the suspension or resignation of a legislator the exclusive domain of the Speaker?

Resignation a ‘fait accompli’

When speaker V Sivakumar received the letters of resignation from PKR assemblymen Jamaluddin Radzi and Osman Jailu, he had every right to accept these resignations and thereafter to inform the EC of the two vacancies.

V Sivakumar The act of resignation was considered complete when Sivakumar announced on Feb 1 that following his acceptance of those two letters, "they have stepped down as state assemblypersons with immediate effect".

The next day at 8am, Sivakumar personally handed his letter of notification of such vacancies to the Perak state election director Adli Abdullah.

So on what ground did the EC reject Sivakumar’s decision on the resignation of Jamaluddin and Osman?

EC chairman Abdul Aziz said in a press conference yesterday that soon after the EC received Sivakumar’s notification on Feb 2 at 8am, it also received a letter each from Jamaluddin and Osman claiming that their letters of resignation were invalid.

The EC then claimed that the two letters had given rise to doubts over the validity of the resignations, hence its decision to maintain the status quo , meaning no vacancies and no by-elections.

Asked whether the two men had denied in their latest letters that they had signed their earlier resignation letters, Abdul Aziz said: "They do not deny (signing), but they do not agree with the date of enforcement of the letters".

Date in dispute

Jamaluddin Mat Radzi So, the crux of the issue is now the date of the letters. Jamaluddin ( left ) and Osman had earlier said that they had signed undated letters of resignation soon after the March 8, 2008 elections, presumably as a pledge of loyalty to their party PKR, in default of which their resignations would be tendered.

And since both had disappeared for almost a week and steadfastly failed to respond to frantic calls by PKR leaders amid swirling talks of their defection to Umno, it should come as no surprise that the two resignation letters were delivered to the Speaker.

The point to note is that these two did not challenge the legality of such an arrangement, they only dispute the time the resignation letters were used, possibly on the premise that they had not yet declared their defection from PKR.

In fact, through separate press conferences on Feb 2 when both again failed to appear as promised, their supposed representatives read out press statements that claimed that they remained PKR members and denied they had resigned. They justified their continued non-appearance by claiming they were sick.

Osman Jailu Now that Jamaluddin and Osman ( left ) have objected to the timing of these resignation letters, what should the EC do? Should it act upon the Speaker’s notification and call for by-elections or accept the two letters as valid complaints and brush the speaker’s notification aside? The EC has obviously chosen the latter.

This is of course a horrible blunder on the part of EC, as it has no business to interfere in the Speaker’s decision, whatever complaints it may receive from the resigned parties.

The correct procedure in case of a dispute is for the assemblymen concerned to complain to the Speaker, failing which they should seek redress through the courts, and the EC should be the last body considered for settling such a dispute.

It is therefore unthinkable that the EC should have taken upon itself in this case, the role of a judge by ruling in favour of the complainants, virtually passing a verdict against the action of the speaker.

The big puzzle is: how could an election body that has functioned for half a century have committed such fundamental error? What conclusion can we draw other than that the EC, under the new leadership of Abdul Aziz, instead breathing a new life into the much discredited body with a higher level of independence and integrity, has in fact fallen into greater depth of subservience to the ruling power.

KIM QUEK, a retired accountant, is member of opposition party PKR.