It is for the Election Commission and not the Perak state assembly Speaker to declare if a state seat is vacant or not, the Federal Court ruled.

Federal Court judge Tan Sri Nik Hashim Nik Ab Rahman, in his 20-page judgment, said that under section 12(3) of the Elections Act 1958, the commission would have to establish that a vacancy existed before issuing a writ of by election.

Therefore, the Speaker could not interfere with the constitutional duty of the commission to establish whether there was a casual vacancy.

“On a plain reading of Article 36(5) of the Perak Constitution, read together with section 12(3) of the Elections Act, it is the commission that establishes the casual vacancy,” Justice Nik Hashim said in the judgment dated June 8, his last before he retires on July 1.

A copy of the judgment was made available to the media yesterday. “Hence, we unanimously rule that the decision of the speaker declaring the three state seats vacant was unlawful and therefore null and void as the decision was contrary to Article 36(5) of the Perak Constitution,” he said.

Nik Hashim said the receipt by the Speaker of a letter of resignation purporting to be from assemblyman had not caused the seat to be vacant as under Article 35 of the Perak Constitution, the Speaker’s role was limited to receiving the written resignation letter and forwarding it to the commission.

He said the commission then, by its own procedure, would determine whether or not a casual vacancy had arisen.

“Once the casual vacancy is established, then it is the duty of the commission to fill the vacancy by holding a by-election.

“With the clear provisions of the respective powers of the commission and the Speaker, the fear of encroachment into the doctrine of separation of powers by one body into another does not arise,” he said.

On April 9, a five-man bench led by Court of Appeal President Tan Sri Alauddin Mohd Sheriff held that the three Perak state assemblymen who quit their parties to become independent assemblymen could keep their seats after ruling that it was commission’s right to declare whether or not a state seat was vacant.

In a landmark decision, Justice Alauddin granted an application by the three: Jamaluddin Mohd Radzi (Behrang assemblyman), Capt (Rtd) Mohd Osman Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) to declare that they were the state assemblymen for the three constituencies.

The other four judges were Chief Judge of Malaya Tan Sri Arifin Zakaria, Federal Court judges Nik Hashim and Datuk Seri S. Augustine Paul and Appeals Court judge Datuk James Foong (now a Federal Court judge).

The three assemblymen had applied for their suit against Sivakumar to be referred to the apex court on the grounds that it involved constitutional issues.

Nik Hashim said the court agreed that it was within the Speaker’s right to accept the resignation letters but did not agree with his action of declaring the state seats vacant as it did not fall within his power to do so.

He said the declaration of the vacancies of the seats by the Speaker could not be said to fall within the proceedings of the State Legislative Assembly (SLA) as it did not involve and form part of the proceedings in the assembly.

As such, the Speaker’s action did not enjoy immunity from due process of the law as guaranteed under Article 72(1) of the Federal Constitution, he said. — Bernama