What does the Perak State Constitution say? And what ought the EC to have done?

Posted on February 4, 2009



Malaysiakini reports today that YB Lim Kit Siang  “accused the Election Commission of siding with the Barisan Nasional in deciding not to hold by-elections for the state seats of Changkat Jering and Behrang” and of acting “unconstitutionally in refusing to recognise the decision of Perak speaker V Sivakumar on the vacancy of the two seats”.

The same Malaysiakini report also has it that Perak DAP chief Ngeh Koo Ham, in a written statement distributed to the press, contended that the  Election Commission “was compelled by Article 113 of the federal constitution to conduct the by-elections pursuant to Article 36(5) of the Perak constitution”.

“Its refusal to do so would be a dereliction of its constitutional duties which is ultra vires. This shows clearly biasness,” Ngeh was quoted as saying.

In an earlier report of Malaysiakini, Election Commission chairman, Abdul Aziz Mohd Yusof, quoting the same Article 36(5) of the Perak state constitution, said that the Commission “does not have the power to invoke Article 36(5) of the constitution of the state of Perak to establish that there are casual vacancies for both the constituencies”.

I just pulled out my ‘Constitutions of the states of Malaysia’ and this is what Article 36(5) of the Perak constitution stipulates :

“A casual vacancy shall be filled within sixty days from the date on which it shall be established by the Election Commission that there is a vacancy…”

There is a rather lengthy proviso to this article but as it does not apply to the present factual scenario that presently confronts the people of Perak, I shall not reproduce the same here.

Whilst it does appear that it would be incorrect for the DAP men to contend that the Election Commission has no part to play in the ascertainment if there is a vacancy thus necessitating a by-election, I think there is validity in the criticism of YB Lim, as reported in the first Malaysiakini report linked above, that it is not the “business of the Election Commission to act and usurp the jurisdiction of the courts to dispute the speaker’s decision”.

What the Election Commission ought to have done, to place itself above criticism and the allegation of bias now thrown its way, is to refer the matter to court for a declaration if a casual vacancy has occured, given the competing claims, and the serious questions of fact and law involved in arriving at a determination of this issue.

In fact, another Malaysiakini report which lays out the Q & A session with the Election Commission chairman in the course of the press conference today, lends credence to YB Lim’s allegation of bias on the part of the Commission.

When asked by the reporter whether he had doubts over the two sets of letters ( the first set of letters of resignation sent in earlier, and the second where the two reps now say they have not resigned ), he replied : “You got two letters from two elected representatives and in the same breath you get another set of letters from same people. So how to make a decision? Because of the doubts created, we cannot make a decision to declare the seats as vacant. Therefore status quo remains”.

So status quo remains because the Election Commission cannot make a decision, or because the Election Commission has decided that status quo remains?

In fact, the Commission has made a decision : that there is no casual vacancy.

It means the Commission has decided to give effect to the second set of letters, and yet when asked by the reporter, the chairman confirmed that nether set of letters was given heavier weight and both were taken into consideration.

When asked whether the Commission would investigate the discrepancy between the two letters, he replied : “No, that is not our duty. Our duty is not to investigate. Based on the letters given to us we make the decision”.

When asked if the Commission would probe the matter further, he replied :

“No, as far as we are concerned, we got two sets of letters. One from the speaker and the other from the two assemblypersons. It is the commission’s responsibility to decide whether the seats are vacant or not.

Can you blame YB Lim?

Posted in: Right to know