ADUN/MP boleh lompat parti: surat itu tidak sah!

Reps can defect and keep seats

PETALING JAYA: There are established laws in the country to allow state assemblymen to defect without losing their seats, say legal experts.

Constitutional lawyer Tommy Thomas said the Dewan Undangan Negeri Kelantan v. Nordin Salleh case in 1992 showed that a Member of Parliament or state assemblyman could not be penalised by forfeiting his seat if he crossed over to another political party.

“It follows that a by-election is not required in law if such a crossover takes place,” he said in a statement yesterday. Thomas said the court had also ruled that it went against Article 10 (1) (c) of the Federal Constitution which guaranteed freedom of association.

He was asked to comment on the legality of the position of the two assemblymen who claimed that they still had the right to their seats despite leaving the Pakatan Rakyat front.
Yesterday, Election Commission chairman Tan Sri Abdul Aziz Mohd Yusuf decided that the Changkat Jering and Behrang seats were not vacant and were still held by Mohd Osman Mohd Jailu and Jamaluddin Mohd Radzi respectively despite the Perak Speaker’s decision on Sunday that it was vacant.

The Speaker, who received undated resignation letters signed by the two assemblyman, had notified the EC on Monday that the two seats were vacant and that by-elections should be held.
The two, however, reiterated that they had not resigned and claimed they were forced to sign the letters after the March 8 general election.

[The Perak Constitution – Article 31 (5) – states that those who resign as assemblymen or MPs will be barred for a five-year period.]

Veteran lawyer and DAP national chairman Karpal Singh said the commission’s decision to recognise Jamaluddin and Mohd Osman as the assemblymen for Behrang and Changkat Jering respectively was based on a Federal Court case in 1982.

“The legal advisers have likely advised them based on that,” he said.
The Federal Court had ruled in 1982 in the case of Sarawak United People’s Party member Datuk Ong Kee Hui v. the then party president Sinyium anak Mutit that the arrangement of submitting an undated resignation letter to the Speaker was contrary to public policy and therefore void.

Karpal Singh said it would be counter-productive if they were to challenge the EC’s decision in court since there was already a precedent.

“The EC has gone through the legality of the authority and based on this, it is right,” he said.
Law professor Dr Shad Saleem Faruqi, however, said that while the Perak State Assembly Speaker had the right in making the decision, the EC also had a right to interpret the law and follow it.

“If the two assemblymen are unhappy with the Speaker’s decision, they can challenge it in court, likewise those who are unhappy with the EC’s decision,” he said.

Dr Shad said the current situation was not an open and shut one, but that the validity of the two undated resignation letters were definitely in doubt. He said a good option would be to dissolve the State Assembly and let the people decide.

“Another option is for the Perak Government to hold on to its one-seat majority and remain in power like PAS in Kelantan previously.

“However, if Pakatan Rakyat loses its majority, a vote of no-confidence can be called. If this happens, the Mentri Besar will either have to resign or seek a dissolution.”

Dr Shad said if the Sultan accepted a dissolution, then fresh elections could be called.
“However, if the dissolution is not accepted and an alternative government is formed, then the position will remain murky as horse-trading will still continue,” he added.

Constitutional lawyer Malik Imtiaz Sarwar said the EC had no basis to engage in a fact-finding process with regards to the validity of the resignation letters.

dipetik dari www.thetstar.com.my
www.rencahmalaysia.blogspot.com