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Wednesday, June 17, 2009

Independents vs Speaker vs EC: Grounds of Judgment by Nik Hashim

On the issue whether it is the Speaker or the EC to make the final decision on the casual vacancy of a Perak State seat, the Court held:

28. Thus, by analogy, in the Perak Constitution, where the Election Commission may establish the vacancy (as opposed to the Speaker under the Indian Constitution), the Election Commission has the right to enquire into any matter relating to the purported resignation. On a plain reading of Article 36(5) of the Perak Constitution read together with section 12(3) of the Elections Act 1958, it is the Election Commission that establishes the casual vacancy and not the Speaker. Moreover, under section 12(3) of the Elections Act 1958, the Election Commission would have to establish that a vacancy exists before issuing a writ of by-election (see Clarence D Bongkos Malakun v The Returning Officer & Ors (1989) 2 MLJ 442 at p 445 E left). The Speaker cannot therefore interfere with the constitutional duty of the Election Commission to establish whether there is a casual vacancy. The receipt by the Speaker of a letter of resignation purporting to be from an assemblyman will not cause that assemblyman’s seat to become vacant. Under Article 35 of the Perak Constitution, the Speaker’s role is limited to receiving the written resignation letter of the assemblyman and forwarding the same to the Election Commission which will then by its own procedure determine whether a casual vacancy has arisen or not. Once the casual vacancy is established, then it is the duty of the Election Commission to fill the vacancy by holding a by-election. With the clear provisions of the respective powers of the Election Commission and the Speaker, the fear of encroachment into the doctrine of separation of powers by one body into another does not arise.[more]

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