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Wednesday, 8 April 2009

KRISIS PERAK : KEPUTUSAN HAKIM



Berita Harian
8 apr 2009

Mahkamah Persekutuan ada kuasa tentukan isu kerusi DUN Perak

PUTRAJAYA: Mahkamah Persekutuan di Putrajaya hari ini menentapkan bahawa ia mempunyai bidang kuasa menentukan isu perlembagaan negeri Perak mengenai kekosongan kerusi Dewan Undangan Negeri (DUN).

President Mahkamah Rayuan, Tan Sri Alauddin Mohd Sheriff, menolak bantahan awal oleh Speaker DUN Perak, V Sivakumar.

Penghuni Gua : Terus menunggu.

3 comments:

  1. Untuk memastikan keamanan di Perak, Hakim perlu bijaksana mengeluarkan keputusan demi Rakyat Negeri Perak.
    Kalau keputusan memihak kepada pembangkang nescaya Negeri Perak akan huru hara.

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  2. The Federal Court (5 judges) unanimously held (9th April 2009) that the Election Commission had the authority to determine whether there is or not a casual vacancy.

    Indeed sivakumar is brave enough in thinking that he was above and over the Election Commission. (see http://jelas.info/2009/02/19/brave-sivakumar/#comment-180273)

    Whether wrongly or rightly decided, these 5 Federal Court judges cannot agree with Sivakumar.

    Soalan seterusnya adalah, adakah dia mengatasi Sultan pula bila menggantungkan Dato Zambri dan EXCOnya?

    Prof Madya Dr Abdul Rani Bin Kamarudin
    Pensyarah (Public Law Dept) IIUM

    http://www.bernama.com/bernama/v5/newsindex.php?id=402996
    April 09, 2009 18:23 PM
    Three Independent Perak Assemblymen Keep Their Seats
    PUTRAJAYA, April 9 (Bernama) -- The three independent Perak state assemblymen keep their post after the Federal Court ruled that the Eelction Commision was the rightful entity to declare vacancies in the state seat.

    In a landmark decision, Court of Appeal President, Tan Sri Alauddin Mohd Sheriff, who headed a five-men bench, granted an application by the trio - Jamaluddin Mohd Radzi (Behrang), Capt (Rtd) Mohd Osman Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) - to declare that they were the state assemblymen for the three constituencies.

    Alauddin said the bench was unanimous in its decision that the EC had the power to declare whether the seats were vacant and not the Perak State Assembly Speaker, V.Sivakumar.

    Alauddin held that the interpretation of Article 36 (5) of the Perak Constitution, read together with Section 12 (3) of the Election Act 1958, meant that the EC was the rightful entity to establish if there was a casual vacancy of a state legislative assembly seat in Perak.

    The other four judges who sat with him were Chief Judge of Malaya Datuk Arifin Zakaria, Federal Court judges Datuk Nik Hashim Nik Ab Rahman and Datuk S. Augustine Paul and Appeals Court judge Datuk James Foong.

    Yesterday, the court for the first time, decided to hear and determine the constitutional issue over who had the power to declare vacancies for the seats.

    Sivakumar, who was present in court, however, declined to give any comments when asked by the media on the decision.

    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.

    They had originally filed the suit against Sivakumar at the High Court Ipoh seeking a declaration that they were the valid elected representatives for the three constituencies although Sivakumar had announced that the seats were vacant.

    With today's decision, there is closure to the trio's suit against Sivakumar.

    In February, Jamaluddin and Mohd Osman left Parti Keadilan Rakyat (PKR) to become independent assemblymen while Hee of the DAP did the same, and this led Sivakumar to declare the seats vacant on the premise that the trio had signed undated resignation letters after winning the seats in the general election held on March 8 last year.

    However, EC chairman, Tan Sri Abdul Aziz Mohd Yusuf, later declared Jamaluddin and Mohd Osman were still assemblymen and no by-elections would be called for their seats (at this time Hee had not left the DAP yet).

    At the outset, counsel Firoz Hussein Ahmad Jamaluddin, for the three assemblymen, submitted that it was very clear under Article 36 (5) that the EC was to establish a casual vacancy for the seats and there was no provision under the Federal Constitution that conferred the Speaker the right to announce the vacancies.

    He said the role of the Speaker was to submit resignation letters of assemblymen who quit to the EC and not to declare the seats were vacant.

    Attorney-General Tan Sri Abdul Gani Patail, who was an intervenor in the proceedings, also said that Article 36 (5) conferred the EC the right to establish casual vacancies for the seats in the assembly.

    Sivakumar's counsel Tommy Thomas submitted that Article 72 of the Federal Constitution meant that Sivakumar enjoyed immunity and his decision that declared the seats were vacant could not be questioned in court.

    He said under the article, the Speaker was also conferred the privilege and power to decide over the issue involved in the assembly house and that his decision was final and cannot be challenged in court.
    Tommy also said Sivakumar's action in informing the trio's resignation to the EC and announcing the vacancies for the seats was part of his role in the assembly.

    Tommy argued that the function of the EC as stated in the Federal Constitution was more an administrative function related to elections such as fixing the nomination and polling dates.

    Another of Sivakumar's counsel, Sulaiman Abdullah, submitted that Article 31(1) of the Perak Constitution said that any dispute arising within the state legislative assembly should be settled in the house and it was not for the EC or the court to decide.

    "In the present case, there were two separate functions -- separation of powers and separation of functions. The speaker's decision was made by the power given to him while the EC's function is more on dealing with elections," he said.

    -- BERNAMA

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