EC acted beyond powers in not holding polls in Perak, court told

Sept 4, 2009

KUALA LUMPUR: The Election Commission (EC) acted beyond its powers and functions in not holding by-elections for three state seats in Perak, the High Court here was told Friday.

Counsel Datuk S. Ambiga said the EC's decision in holding that the state assembly seats of Behrang, Changkat Jering and Jelapang were not vacated as a result of the resignation of the three assemblymen, as determined by the then speaker of the state assembly V. Sivakumar, was illegal and irrational.

"The fourth respondent (the EC) had usurped the powers and right of the speaker (Sivakumar) to determine that a resignation had taken place," argued Ambiga before Justice Lau Bee Lan in her chambers.

Ambiga, former president of the Bar Council, was representing Sivakumar in his leave application for a judicial review to compel the EC to declare the three seats vacant and hold by-elections.

In his application, Sivakumar had named state assemblymen Jamaluddin Mohd Radzi (Behrang), Mohd Osman Mohd Jailu (Changkat Jering) and Hee Yit Foong (Jelapang), and the EC as respondents.

Ambiga, in her submission, also contended that the EC, by its letter to Sivakumar dated Feb 5, 2009, had stated that it was unable to ascertain whether the three seats had been vacated and, therefore, could not call for by-elections.

"Having determined that it could not ascertain that a vacancy had occurred, the EC had contrarily made a decision that the three seats were still held by the first to third respondents," she said.

Sivakumar, 38, is seeking a court order to quash the EC's decision and to compel the EC to hold by-elections in the Behrang, Changkat Jering and Jelapang state constituencies.

He also wants the court to grant an injunction to stop Jamaluddin, Mohd Osman and Hee from acting as and carrying out the functions and duties of assemblymen of the respective state seats.

He is also seeking a writ of "quo warranto" to compel the trio to show under what basis or authority they still remained the elected representatives of their constituencies and carried out the responsibilities, functions and duties of an assemblyman.

The court fixed Sept 9 to hear the reply from the EC, represented by Senior Federal Counsel Datuk Kamaludin Md Said. - Bernama