The Election Commission has no inherent powers to decide whether a vacancy has occurred in a constituency. It has no discretionary authority to override the notification of the Speaker of the Perak State Assembly declaring that the state seats of Changkat Jering and Behrang have fallen vacant following the resignations of the incumbents of these seats.
The EC cannot plead that doubts exist because the incumbents have disputed the validity of their resignation letters.
It is completely unacceptable for the EC chairperson Abdul Aziz Mohd Yusof to state, “As such, EC decided that it cannot establish that vacancies have occurred.” It is not for the EC to cast doubts on the notification of the Speaker declaring the vacancies in these two constituencies.
As a newly appointed Chairman, he may not be all that conversant with the rules governing elections. But he must heed the words of his predecessor, the former EC chairman Tan Sri Rashid Abdul Rahman who had served the EC for some 25 years. According to Rashid, the EC has no choice but to call for by-elections. Rashid was well aware of the present controversy surrounding these resignation letters when he gave his opinion.
Legally there exist no doubts as to the vacancies of these two seats but there are clearly doubts as to why the EC chose to take this decision which is without doubt ultra vires. The EC should have told the two disputing Assemblymen to take their matter to court and sort out their problems. This would have been the correct stand to take.
The EC should never be seen to be part of their problem. In this manner, the EC would have established itself as an impartial institution to conduct free and fair elections. That perception is in serious doubt today.
The EC’s decision will perpetuate this problem of party hopping that is plaguing the Perak state government. With the serious economic problems that we are faced with, the government cannot be embroiled with unethical party hopping which seems to take up so much time and energy of the government to stay in power and that of the opposition bent on toppling a legitimately elected government.
As long as this razor-thin majority is in place, the uncertainties of governance will continue to exist to the detriment of the people and their welfare.
To overcome the present problem once and for all, Aliran would urge the Perak state government to seriously consider dissolving the state assembly and go back to the people as the ultimate arbitrators to solve this problem.
Aliran would also like to appeal to His Royal Highness, the Sultan of Perak, in all humility, to kindly consent to the dissolution of the state assembly as a way to overcome this deadlock.
3 February 2009