By Debra Chong and Shannon Teoh( Themalaysianinsider) KUALA LUMPUR, Feb 2 — Perak’s problem over political defections is stirring up a huge debate on constitutional law in Malaysia among its experts.
Several lawyers and election veterans have expressed differing opinions on whether or not Perak State Legislative Assembly Speaker V Sivakumar, has the right to force by-elections in Behrang and Changkat Jering, the two state seats said to have been vacated by their incumbent assemblymen while locked in a public dispute that puts the state government at risk of collapse.
The argument hangs on the validity of the undated and pre-signed letters of resignation from the state’s two PKR assemblymen.
Jamaluddin Mat Radzi and Osman Jailu, the state representatives for Behrang and Changkat Jering respectively, claim their letters are invalid because they were signed under duress.
Speaker Sivakumar, however, accepted the letters as genuine expressions of their intent to quit their state seats, creating vacancies which must be filled within the next 60 days in by-elections.
Despite the duo’s protests, Sivakumar submitted the disputed letters to the Election Commission (EC) this morning.
EC chairman Tan Sri Aziz Yusof has acknowledged receipt and said he will hold a meeting tomorrow with his officers in Putrajaya to discuss the next step.
Aziz’s predecessor Tan Sri Rashid Rahman, who has eight years’ experience as chief, told The Malaysian Insider the EC has no choice but to call for by-elections.
Rashid explained that the rule of law requires the election body to carry out its duty and prepare for elections once the Speaker has formalised his request.
A professor of law at the International Islamic University here, Abdul Aziz Bari, agrees with Rashid.
Abdul Aziz explained that the Federal Constitution is very clear on the powers of the Speaker in matters related to the law-making houses in Parliament and its state equivalent, the State Legislative Assembly.
Regardless of disputes, the Speaker is the final authority in deciding whether there is a vacancy or not and the election body can and must take the Speaker’s word at its “face value” and call for by-elections soon.
“As such, matters pertaining to suspension of a member and the likes, the final say rests with the Speaker. He is the one who runs the House and his ruling is final,” Abdul Aziz told The Malaysian Insider.
“The EC has got to take the Speaker’s notification as a matter of the law. They have no choice. That is what the law is all about,” he added.
He said the unhappy parties may challenge the Speaker’s decision in court if they wish but it would be hard to prove they were forced to sign their resignation.
Giving an example of an incidence in the mid-1980s involving a challenge to the Perak Speaker ordering out a DAP assemblyman for refusing to pledge his oath, Abdul noted that the court has refused to entertain the challenge, even when the Speaker’s decisions were deemed to be “absurd”.
“The court has no power as it cannot interfere with it. This is in line with the position and dignity of the House as the Legislature,” Abdul said.
He added that apart from the legal aspect, Jamaluddin and Osman have behaved unreasonably, raising both legal and moral questions underlining the legal and political position of the legislature.
“Their actions are simply devoid of any moral grounds. How could they have let the last five days pass without any news on their whereabouts?” he asked.
“Only last night, they suddenly emerged, denying they had resigned,” he said.
Lawyer Malik Imtiaz Sarwar argues that the Perak case is not as cut-and-dry as some constitutional experts have presented it.
Malik explained that there were too many variables at work and they must be taken collectively, which could change the rules of the game in Perak.
He noted that public policy and the Federal Constitution provides for exclusions to the rule should the resignations be found to have been “made under duress” as Jamaluddin and Osman both claim.
Even if there was an earlier agreement between the duo and their party leaders, there were questions over the terms and conditions of when the party is allowed to produce the undated but signed resignation letters.
“If the resignations are involuntary, they can arguably annul the effect of their resignations,” Malik told The Malaysian Insider.
He noted a 1983 Supreme Court ruling in a similar case involving the Sarawak United People’s Party (SUPP) after an elected representative challenged a previous agreement to pay compensation to the party after hopping to another.
In the judgment, the Supreme Court noted that the case involved the Speaker, and would require he be sued in court for the full course of justice to be served.
But even if the PKR assemblymen chose to challenge the Speaker in court, they would face great obstacles that could prove detrimental to them in the long run, Malik observed.
“One is their conduct over the past few days. They have been in hiding and only came out when the Speaker announced the vacancies in their state seats.
“Two is the decision of the Speaker. As a general principle, the Speaker’s decision is not open to challenge in court. Therefore, the value of that challenge is questionable,” Malik said.
The Standing Orders in the Perak State Assembly, like those governing Parliament, state that the Speaker’s decisions cannot be challenged in court, senior state exco Datuk Ngeh Hoo Kam told The Malaysian Insider.
“The simplest route for everyone right now is to have them play by the rules and honour the ruling of the Speaker and get on with the by-elections,” Malik added.
Yet, talk of snap elections has been rife, fuelled by a raging mix of speculations over party hoppers; the razor thin majority between the ruling Pakatan Rakyat (PR) coalition and their rival Barisan Nasional (BN) counterpart; and compounded by Menteri Besar Nizar Jamaluddin’s reluctance to disclose to reporters what he spoke about this morning at an audience with Perak Ruler Sultan Azlan Shah.
Malik says the public should not to jump the gun.
While the Ruler has the final say, “he cannot intercede unless there is a request from Nizar to dissolve the state assembly or, the assembly collectively votes no-confidence in Nizar,” he explained.
After declaring yesterday that Jamaluddin Mat Radzi and Osman Jailu have resigned as Behrang and Changkat Jering assemblymen respectively, Perak state speaker V Sivakumar went ahead this morning to inform the state EC of the vacancies.