Selected extracts of the grounds setting aside the Perak Speaker’s decisions that the State seats of Behrang, Changkat Jering and Jelapang were vacant pursuant to their Assemblypersons’ purported resignations follows.
On the objection that Article 63 of the Perak Constitution is inoperative to confer jurisdiction to the Federal Court to hear the matter, the Court held:
12. That being the case, it is clear that Article 63 of the Perak Constitution, being a pre-Merdeka written law, falls within the meaning of “federal law” and therefore, an “existing law” as defined in Article 160(2) of the Federal Constitution. Thus it continues in force on or after Merdeka Day subject to any amendments made by State Law. The subsequent amendment to Article 63 by the State Enactment No. 4 of 1996, in substituting the words “Federal Court” for the words “Supreme Court” is in accord with Article 162(1) of the Federal Constitution which expressly allows for any amendments to be made to the existing law by State law. The purpose of the amendment was to change the name of “Supreme Court” to “Federal Court” in Article 63 so as to bring it into accord with the provisions of the Federal Constitution. Under Article 121(2)(c) of the Federal Constitution, the Federal Court shall have such other jurisdiction as may be conferred by Federal law. Article 63 is by definition a federal law and therefore, it is capable of conferring such jurisdiction on the Federal Court.
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.
The full grounds of judgment may be downloaded here.
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