©The Sun (Used by permission)
by Humayun Kabir
IPOH (March 16, 2009): The High Court in Ipoh today refered to the Federal Court to decide whether Perak State Assembly Speaker V Sivakumar or the Elections commission (EC) has the power to declare state assembly seats vacant.
Judicial Commissioner Ridwan Ibrahim decided to refer to the Federal Court after hearing for about two hours of submissions by lawyers for Sivakumar and those of assemblymen Mohd Osman Mohd Jaitu (Changat Jering), Jamaluddin Mohd Radzi (Behrang ) and Hee Yit Foong ( Jelapang).
The three assemblymen had filed suit against Sivakumar who had declared their seats "vacant "on the strength of their pre–dated resignation letters, and subsequently informed the EC to hold by–elections for the seats.
The proceedings yesterday were held with the public locked out after Ridwan declared the open court as his chambers and all media personnel, the public and lawyers not connected with the case were asked to leave the courtroom.
Lead lawyer for the three Independent assemblymen, Datuk Mohd Hafarizam Haron later told reporters that his legal team had finalised five drafted questions for Ridwan to endorse before being posted to the Federal Court for determination of the legality of Sivakumar's action in declaring the state seats as vacant.
He said the five questions will be made available to the media tomorrow as Ridwan had yet to sign the official version.
Immediately after, Sivakumar's lawyers announced that they will file an appeal in the Kuala Lumpur Appeal Court against the High Court's decision to transfer the case to the Federal Court.
Sivakumar’s lead counsel Chan Kok Keong who held a press conference outside the court said they were not participating in the court proceedings (to draft the questions) fbecause they do not agree that the case be transferred to the Federal Court under Section 63 of the Perak Constitution and under Section 84 of the Courts of Judicature Act 1964.
"We are going to appeal against Judicial Commissioner Ridwan Ibrahim’s decision as the two sections cannot be applied to this case," he said.
Chan said under Section 63 of the Perak Constitution the application by plaintiff’s lawyers in the High Court to transfer the case to the Federal Court is not valid as the High Court has no such jurisdiction.
"The application can only be submitted directly to the Federal Court," he said, adding that Section 84 was not applicable as it refers to the Federal Constitution and not the Perak State Constitution.
Chan also denied Hafarizam allegation that Sivakumar’s legal team was purposely delaying and prolonging the court cases to cause the dissolution of the state assembly if it does not convene before May 15.
"What we are all along doing is to strictly follow the laws of the country and not otherwise as stated by Hafararizam," Chan said.
Sivakumar was today represented by five private lawyers comprising Chan, Nga Hock Cheh, Leong Cheok Keng, Augustine Anthony and Mohd Asri Othman.
Ridwan had on three occasions on March 3, 5 and 10 ruled that Sivakumar, being a public servant, could not use private lawyers and had to be represented by the State Legal Adviser Datuk Ahmad Kamal Shahid.
Sivakumar appealed against Ridwan’s order to the Appeal Court in Kuala Lumpur which decided that he had basis to engage his own private lawyers to represent him in the two cases.
The three assemblymen were represented by six lawyers ––Mohd Hafarizam, Firoz Hussein Ahmad Jamalludin, Badrul Hishah Abdul Wahab, Faizul Hilmi Ahmad Zambri, Syed Faisal Syed Abdullah and M. Reza Hassan, who are the same lawyers representing Zambry.
Meanwhile, lawyer Ng Mung Yin is holding watching brief for DAP Perak while T Shan represented the Bar Council.