Kim Quek (Malaysiakini)
In a written judgment by Justice Nik Hashim Nik Rahman, the Federal Court empowers the Election Commission (EC) to over-rule the speaker over the resignations of the three ‘independents’ in Perak and declares that they retain their status as assembly representatives.
This judgment – released on June 15 – or 67 days after the oral judgment was given by the panel of five judges on April 9, is flawed on two scores.
First, the court has misinterpreted the constitution to wrongly declare the EC – instead of the speaker – as the authority to decide whether a resignation in the legislature should be accepted.
Second, even if the court is correct in giving the EC the role of the final arbiter in respect of resignations in a legislature (which is decidedly wrong in law), the court has no business to declare that the three ‘independents’ remain assemblypersons.
The linch-pin of the court’s argument is Article 36(5) of the Perak Constitution, which reads: “A casual vacancy shall be filled within 60 days from the date on which it is established by the EC that there is a vacancy.”
Pouncing on the word ‘established’ as conferring an executive power to deliberate on the legality of the resignation of a legislator, Nik Hashim asserts that “the EC has the right to enquire into any matter relating to the purported resignation.”
He further states: “Under Article 35 of the Perak constitution, the speaker’s role is limited to receiving the written resignation letter of the assembly(person) and forwarding the same to the EC, which will then by its own procedure determine whether a casual vacancy has arisen or not.”
(Article 35 reads: A member of the legislative assembly may resign his membership by writing under his hand, addressed to the speaker.)
If Nik Hashim’s interpretation of the constitution is correct, hasn’t our poor speaker been reduced to a mere messenger boy for the EC whenever a resignation in the assembly or dispute arising wherefrom crops up?
Founding fathers not dim-witted
Surely our founding fathers and the crafters of our constitution, which is built on the principle of separation of power, could not be so dim-witted as to allow such a piece of nonsensical legislation to slip through their fingers?
Actually there is nothing wrong with the legislation. The problem is with the interpreter of the constitution. Nik Hashim has obviously misconceived the real function of the word ‘established’.
Interpreting it out of context, he conjures up powers to the EC that are not intended and non-existent in the constitution.
Any experienced reader of the constitution should be able to discern that Clause 5 of Article 36 of the Perak constitution was intended to stipulate that a casual vacancy must be filled when it arises, and that it must be filled within a certain period.
The word ‘established’ is used in the context of defining the 60-day period within each the vacancy must be filled, and not to be used as implying the granting of executive power to the EC to micromanage the mechanism of an act of resignation in a legislature.
If it is intended that the EC be given such an important function as manager and final arbiter of resignations in a legislature, is it conceivable that the crafters of the constitution had camouflaged it in such cavalier fashion, and not expressly spelling out the details under a separate clause?
In fact, it is equally inconceivable that our founding fathers could have agreed to such provision due to its fundamental contradiction with the doctrine of separation of power.
In Malaysia, and in fact in legislatures all over the democratic world, it is always the speaker who scrutinises and acts upon the resignation of a legislator, and should there be any dispute which the speaker cannot resolve, the assembly will act as the final authority to settle the outstanding issues.
In the worst scenario where criminality is alleged, such as forged signature or undue coercion, the aggrieved party can always seek redress through the courts.
But under no circumstances should the EC involve itself in any such matter which is deemed the exclusive domain of the assembly, outside the jurisdiction of not only the EC but also the courts. The latter could only come in, if there is an incident involving crime.
EC’s hollow authority
Nik Hashim may be technically correct when he ruled that “the EC is the rightful entity which establishes if there is casual vacancy of the state legislative assembly seat”.
But such a function to ‘establish’ vacancy is hollow authority – a mere formality to announce a vacancy upon notification from the speaker of a resignation, as the bulk of action in a resignation takes place at the speaker’s end, not at the EC.
When the speaker receives a letter of resignation, he scrutinises its authenticity, and satisfies himself that the resignation is genuine before accepting it. And upon his notification to the EC to this effect, the legal act of resignation is deemed complete.
And since the EC has no legal power under the constitution or any law to undo this resignation, it should treat the speaker’s notification as legal command to fulfill his constitutional obligation to declare a vacancy and a by-election date.
In the Perak case, the EC had clearly acted ultra vires the constitution when it rejected the speaker’s decision and refused to conduct by-elections.
The Federal Court judgment endorsing an unconstitutional act has caused a grave distortion of our constitution and opened the floodgates for potential interference by EC into issues of resignations in our legislatures including Parliament.
This judgment must therefore be promptly reversed through a judicial review to avert permanent damage to our system of government under the principle of separation of power.
I have said at the beginning of this article that the Federal Court has no business to declare that the status of the three Independents be maintained as assemblypersons.
This is due to the fact that this court hearing is just to interpret the meaning of the constitution pertaining to the EC’s power in respect of the resignation of a legislator, and not to look into the legality of the specific act that the EC had taken in respect of the resignations of the three Independents in the Perak assembly.
As such, the Federal Court has no legal basis to make declarations that the legislative status of the three Independents be maintained.
That decision is up to the Ipoh High Court, where litigation on the matter continues.
KIM QUEK is a member of PKR.
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Kim Quek (Malaysiakini)