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24 May 2010

Sivakumar loses bid to set aside Federal Court’s decision

The Federal Court here today threw out an application by ousted Perak speaker V.Sivakumar to set aside its earlier ruling that the three Perak state assemblymen who turned independent could keep their seats.

Justice Datuk Zulkefli Ahmad Makinudin who led a three-member bench struck out Sivakumar’s application after allowing a preliminary objection by counsel for three assemblyman and counsel for the intervenor, the Election Commission (EC).

Zulkefli, Datuk Seri Md Raus Sharif and Datuk Abdull Hamid Embong unanimously ruled that Sivakumar had failed to set out the provision of law on which his application was based.

He also said that the application brought by Sivakumar was an abuse of the court process and that issues raised in today’s hearing had already been fully considered and dealt with in the judgment of the previous Federal Court panel.

Zulkefli said the matter was of a judicial finding by the previous panel and did not warrant the current panel to set aside the decision even if it disagreed with the decision made by the previous panel.

The court also ordered Sivakumar to pay costs of RM10,000 to the assemblymen and another RM10,000 to the EC. Earlier, the panel rejected Sivakumar’s request to recuse the three judges from hearing his application on grounds that they had earlier presided over related matters.

On April 9 last year a five-member Federal Court led by Court of Appeal President Tan Sri Alauddin Mohd Sheriff declared the three assemblymen —Jamaluddin Mohd Radzi (Behrang), Capt (Rtd) Mohd Osman Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) — as state assemblymen for the three constituencies.

Osman and Jamaluddin, former Perak PKR members, and Hee, from the DAP, quit their parties to become independent assemblymen and pledged support for the Barisan Nasional, leading to the collapse of the PAS-PKR-DAP coalition government in Perak.

That quorum also held that the EC was the rightful body to declare whether the seats were vacant and not the Perak State assembly speaker, V.Sivakumar.

On April 8 last year, it ruled that it had jurisdiction to hear the trio’s case which was referred directly to it from the Ipoh High Court under Article 63 of the Perak Constitution for determination of constitutional issues over who has the power to declare vacancies in the Perak state legislative assembly seats.

In his notice of motion filed on April 19 this year, Sivakumar claimed that he was entitled, as a matter of law, to set aside the Federal Court’s April 9 decision because the order was a nullity as it was made without jurisdiction.

In challenging the Federal Court’s ruling on the jurisdictional issue, Sivakumar said the Federal Court had unconstitutionally assumed that it had jurisdiction to entertain the matter.

He claimed that the Federal Court had misinterpreted the Federal Constitution by finding that the laws of the Constitution of Perak was a federal law capable of conferring jurisdiction to the court (Federal court) by virtue of Article 121 (2) (c) of the Federal Constitution.

Datuk Hafarizam Harun, the lawyer representing the trio, in a preliminary objection urged the court to strike out Sivakumar’s application on grounds of procedural defect and abuse of the court process.

Chan Kok Keong, for Sivakumar, however, said the panel had the jurisdiction to hear Sivakumar’s application on jurisdictional argument. — Bernama

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