> Perak Sultan to decide - 2

by Malik Imtiaz Sarwar

Before embarking on an analysis of the state of play in Perak, it would be of value to consider the objective facts:

Two assemblymen signed undated resignation letters as a condition to their being nominated by their political party for a state election. For this, the party also gave them full support, financial and otherwise. They won their respective seats;

The undated resignation letters were submitted to the speaker of the Legislative Assembly. The Perak Constitution allows members of the assembly the option of resigning their membership “by writing under his hand addressed to the speaker”;

The party opted to submit the resignations of the two assemblymen. It is not apparent what prompted this;

The speaker has accepted the resignations and communicated the fact of the resignations to the Election Commission. The speaker has taken the position and ruled for the purposes of the assembly that the resignations have taken effect and by-elections be held. He will treat the assemblymen as no longer being members of the assembly for the purposes of proceedings in the assembly;

The two assemblymen dispute the validity of the resignation. They do not contend that the resignations letters were not under their hand. They contend that the resignations were procured through duress;

The Election Commission has decided that the resignations are doubtful and as such not true resignations.

From the above, it could be said that the following questions arose when the controversy first erupted:

The legal value or validity of the resignations. There is no authoritative decision of the courts on this point. A 1982 decision of the then Federal Court (Datuk Ong Kee Hui) observed that such resignations could be viewed as being contrary to public policy in view of elections at both the state and federal level being of individuals as opposed to political parties. A question of honouring the wishes of the electorate, that is the electing of the individual as opposed to the party, arises. The Federal Court did not decide on the point as the Member of Parliament concerned did not seek to invalidate the resignation nor had the speaker been joined as a party. The point is as such open to argument.

Whether the resignation letters were procured under duress;

However, these questions have been overtaken by events, in particular the decision of the speaker to accept the resignations and give effect to them. The speaker may be wrong but until he is shown to be wrong through valid process — either in the assembly (to the extent that such process is available) or through the courts — the speaker’s decision must stand.

In this regard, the Election Commission is charged with the conduct of elections. It could be argued that in order to do so, the Election Commission must have the power to determine whether an election is needed in the first place. Where state and federal elections are concerned, this is established by the dissolution of the assemblies and Parliament respectively. However, where casual vacancies (through death, resignations or disqualifications) arise, the situation is more nuanced.

The Perak Constitution (Article 36(5)) provides that a casual vacancy shall be filled within 60 days from the date on which it is established by the Election Commission that there is a vacancy. Vacancies caused by death and disqualifications are easily established. Where the latter is concerned, the matter is decided by the assembly itself, which in law is taken to have final say (save where there is a matter of legal interpretation). In the ordinary course resignations are similarly uncomplicated; the speaker receives the letter of resignation and communicates the fact to the Election Commission which establishes the vacancy based on the speaker’s declaration. From this, it is apparent that the vacancy is established by reference to the position taken by the speaker. This is consistent with the basic principle of parliamentary democracy that it is the speaker who regulates the assembly.

The question that arises is therefore whether this process is derailed by a dispute as to the validity of the resignation. In my view, it should not be, and the Election Commission must act accordingly. I say this for two main reasons. First, the scheme explained above.

Secondly, it is not for the Election Commission to embark on a fact-finding or adjudicative process as, amongst other things, it does not have the power to do so. In denying the position the speaker has taken, the Election Commission is in effect asserting that that the speaker is wrong. The Election Commission cannot do so. If there is a question as to the correctness of the speaker’s position, then it must be challenged through proper channels.

Seen from this perspective, this unprecedented and very curious action of the Election Commission regrettably raises questions as to its motives. It must be taken to appreciate the precarious position it has left Perak in, one which looked upon objectively appears to have been made more accommodating to the machinations of the Barisan Nasional. I note that by-elections would be inconvenient for Umno which is scheduled to have its assembly in March. It is as such open to question as to whether the Election Commission has conducted itself in the independent manner the Federal Constitution requires of it.

Where this leaves the Perak government is an open question. It could seek a ruling of the court as to the correctness of the decision made by the Election Commission and an order to compel the latter to conduct the by-election. This would be a time-consuming affair and occasion a delay that can only work against the interests of the state. The razor-thin margin is undermining stability and it is more probable than not the attention of those who make up the state government would be focused more on preserving their government than the affairs of the state.

The Election Commission’s stance and the underlying events would afford sufficient cause for the menteri besar to request that the Sultan dissolve the assembly and call for fresh elections. All things considered, this may be the best way to protect the interests of Perak. In these difficult times, governments should be focused on what needs to be done rather than politics.

Malik Imtiaz Sarwar is the current president of the National Human Rights Society (HAKAM) and a lawyer.

In view of the above, and to be fair to the people who elected their assemblymen, it would serve the best interest of Perak for the Sultan to dissolve the assembly and call for fresh elections - My Journal.

> EC Challenged

Pakatan Rakyat has given the Election Commission 48 hours to review its decision that Behrang and Changkat Jering assemblymen Jamaluddin Mohd Radzi and Mohd Osman Mohd Jailu retained their seats and no by-elections were necessary.

Perak DAP chief Datuk Ngeh Koo Ham said that should the Commission fail to do so, Pakatan would embark on its next course of action.

He would not say what form this action would take.

Ngeh said that the Commission did not have the jurisdiction to inquire into the validity of the two resignation letters sent to Perak Legislative Assembly speaker V. Sivakumar on Sunday.

He said that under Article 113 of the Federal Constitution, the Commission was compelled to conduct elections and had no right second-guess the decision of the speaker.

“The law does not allow the Commission to conduct any inquiry, any dissatisfaction must be decided by the court.

“In this were the case, it can even refuse to proceed with elections despite being notified by the Prime Minister that Parliament has been dissolved,” he said at the Perak DAP headquarters here Tuesday.

The Commission had earlier Tuesday decided that Jamaluddin and Mohd Osman were still the assemblymen for their seats because they had sent letters disputing the validity of the resignation letters.

“But how do we know if this is true? Until today, both men have not surfaced. We do not even know if they are dead or alive,” he said.

In PETALING JAYA, DAP national advisor Lim Kit Siang said the Commission had acted unconstitionally by refusing to recognise the Perak state assembly speaker’s decision to hold by-elections.

“The Commission’s constitutional duty is to act on the Perak speaker’s official notification on the vacancy of the two state assembly seats and call for by-elections to be held in the next 60 days,” he said in a statement Tuesday.

He said the Commission had no jurisdiction to dispute the speaker’s decision.

“Any such legal challenge should come from Jamaluddin and Mohd Osman if they want to challenge the legality of their resignations from their respective state assembly seats,” he said.

As far as PKR is concerned, the Changkat Jering and Behrang seats are still vacant, said the party’s information chief Tian Chua.

“It is not the Commission’s role to question the Speaker’s decision. Its job is to conduct elections, that’s it. Now it is interfering with the Speaker’s prerogative.

“It is not up to the Commission to doubt whether the resignation letters are valid or not unless there is a court injunction by the two state assemblyman stating that the Speaker’s decision is wrong,” he said.

Jamaluddin and Mohd Osman have denied they resigned, claiming they were made to sign the letters last March “under duress.”

By refusing a by-election, the Commission was denying Changkat Jering and Behrang voters the right to representation as the “seats are now vacant,” he said.

“If the two (Jamaluddin or Mohd Osman) tried to enter the Assembly, they would not be able to go in as the Speaker has said the seats are vacant,” he said.

He said neither Jamaluddin nor Mohd Osman had contacted party leaders to explain their actions or disappearance.

The two had gone missing for more than a week, fuelling speculation that they would be joining Umno - The Star.

It is certainly not a function of the Elections Commission to make a decision on a vacancy but to act on notification by the Speaker of a vacancy - My Journal.

> Anwar and Nizar discuss by-election

Although the status of the State Legislative Assembly seats for Behrang and Changkat Jering have yet to be decided by the Election Commission (EC), the Perak Pakatan Rakyat state government has begun to make preparations to face the by-elections in the two constituencies.

Parti Keadilan Rakyat (PKR) advisor Datuk Seri Anwar Ibrahim paid a courtesy call on Perak Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin at the latter’s residence, here today and the main agenda of their discussion was the by-election for the two constituencies represented by the PKR.

According to a state government source, Anwar and Nizar held the discussion after lunch. “We believe the two leaders discussed preparations to defend the two seats in the by-election besides discussing current developments,” the source told reporters. 

The EC will only meet tomorrow to determine the status of Mohd Osman Jailu (Changkat Jering) and Jamaluddin Mohd Radzi (Behrang) who were reported to have vacated their seats yesterday.

However, both Asssemblymen had denied vacating their seats.

EC Chairman Tan Sri Abdul Aziz Mohd Yusof said in Putrajaya that the matter had to be discussed thoroughly especially from the legal aspects as there was significant factual contradiction which had caused a confusion.

Yesterday, Perak State Assembly Speaker V Sivakumar announced that he had received the resignation letters of Jamaluddin and Mohd Osman.

However, both Assemblymen claimed that the letters referred to by Sivakumar were the ones that they signed on March 8, last year after the general election.

The source said that Pas deputy spiritual leader Datuk Harun Din was also present at the discussion.

Media representatives who had been waiting outside the Menteri Besar’s residence since morning did not have the opportunity to meet Anwar who was seen leaving with several Perak PKR leaders in two cars at about 3pm.

The uncertainty concerning the status of the two Assemblymen had caused confusion on the position of the state government where the Pakatan Rakyat had 32 seats against 27 held by the Barisan Nasional (BN).

In the last general election, Jamaluddin received 6,771 votes to beat BN candidate Datuk M. Ramasamy who had 5,744 votes. Mohd Osman won with a 1,102-vote majority to wrest Changkat Jering. He polled 9,411 votes to beat the incumbent from BN, who was also the State Assembly Speaker in the previous government, Datuk Mat Isa Ismail who received 8,309 votes.

The Political Secretary to the Menteri Besar, Misbahul Munir Masduki, meanwhile said Mohammad Nizar would not make any statement to the media today as he was busy with preparations for the Sultan of Perak, Sultan Azlan Shah’s Silver Jubilee celebrations tomorrow - Bernama.

> Google Earth takes the plunge

Since Google Earth launched in 2006 millions of people have used its virtual globe to "travel" around the planet without leaving home, climbing a digital version of Mount Everest and even flying into space thanks to the website.

Now the internet company plans to take on one of the last bastions of the unknown: the depths of the ocean.

At a high-profile event in San Francisco, Google is expected to announce the addition of vast amounts of underwater imagery and seabed maps to the Google Earth project.

The move will take Google Earth closer to its aim of creating a complete digital representation of the planet.

The existing site, to which an estimated 400 million people have had access, already includes three-dimensional representations of large cities around the world and includes images from street-level and aerial photo graphy covering thousands of miles across Britain and elsewhere.

The new additions to the website are expected to include views of the ocean, and portions of the seabed. They will also provide detailed environmental data that will enhance information about the effect of climate change on the world's seas and oceans.

To showcase the transformation, the site's chief executive, Eric Schmidt, will introduce dignitaries including the former US vice president and environmental campaigner Al Gore, and the veteran ocean ographer Sylvia Earle, who is an "explorer-in-residence" at National Geographic.

Although, so far, there has been only limited data collected about the sea floor, with just 10% of the habitat mapped at any useful scale for science, bathymetry experts said that the public's ability to "interact" with the oceans and gain better understanding, as well as see the evidence of global warming, could have quite an impact on perceptions.

"This is the part that's really exciting, for me: people will understand that we know almost nothing about a lot of these places, and Google will do it for us," said David Sandwell, professor of geophysics at the Scripps Institute of Oceanography, at the University of San Diego. "There are big voids everywhere, but there are a few little spots where we know quite a lot."

The inclusion of environmental information forms the latest part of the company's plan to offer the public more data about climate change. In 2007 Google convened a high-level meeting of experts to help it develop sources of submarine information and environmental data. It seems likely that the company will later unveil partnerships with institutions in Europe and the US as part of the project.

"It's a really useful tool for scientists, to [be able to] share data on the oceans," said Sandwell. "For me, it's the detailed global tectonic structure of the sea floor … if you're a physical oceanographer, the important thing is that the currents and tides are affected by things that stick up from the sea floor."

The development has a less serious side, however. It is also believed people using the site will get the chance to take a virtual dip at some of the world's most famous diving spots, including at sites in the Bahamas, the Red Sea and the Great Barrier Reef.

Despite the project's long gestation, speculation about the precise details has grown since Google announced it would be holding the event. Many observers said they were hoping for something spect acular. "I don't think this announcement will be confined to just Google Ocean," wrote Frank Taylor, who catalogues the development of Google Earth at gearthblog.com. "When Google makes an announcement like this, they always try to push the envelope on multiple fronts. And, with Al Gore headlining the event, I'm sure we're going to get some data about the environment."

The new system could potentially be combined with another program to let people "virtually" move about anywhere in the world.

At the Macworld Expo in January, Google engineers unveiled a program called EarthSurfer, which combined Google Earth with Nintendo's Wii Fit to create an exercise game that allows players movement "around the landscape" by way of balancing on a board. "You control it by leaning forward to go forward, and back to go back," said David Oster, the EarthSurfer programmer on the project at the time. "It's great stuff" - Guardian.

> Two Perak Assemblymen quit

Two Perak State Assemblymen from Parti Keadilan Rakyat (PKR), who had been 'missing' since last Monday, announced their resignation with immediate effect today.

Perak Speaker V. Sivakumar said the State Assemblyman for Behrang, Jamaluddin Mat Radzi, and State Assemblyman for Changkat Jering, Mohd Osman Jailu, handed their resignation letter at his residence at 5.45pm, Sunday.

In a statement faxed to the media offices here, Sivakumar said he would inform the Election Commission (EC) to hold a by-election within 60 days.

"I received the letters of resignation from the two State Assemblymen based on Article XXXV of the Perak Darul Ridzuan State Constitution.

"As such, I as the Speaker of the State Legislative Assembly declare that there are two vacant seats N14 Changkat Jering and N59 Behrang immediately," he said.

Sivakumar said he would get in touch with the EC tomorrow to hold a by-election within 60 days as required by Article XXXVI (5) of the Perak State Constitution.

Both the Assemblymen could not be contacted by the state government and their families since last Monday and Perak Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin this morning asked both Assemblymen to declare their stand immediately if they had left the Perak Pakatan Rakyat state government.

He said the state government was ready to make preparations and plan a strategy according to existing regulations to face any eventuality.

Speaking at a press conference after a meeting with Perak PAS, DAP and PKR leaders, Mohammad Nizar said the state government might lodge a police report on the disappearance of the two State Exco members after discussing with their families.

Jamaluddin, 52, was the Chairman of the State Committee on Entrepreneur and Cooperative Development, Agriculture and Plantations, while Osman, 57, was the Chairman of the State Committee on Tourism, Human Development and Non-Governmental Organisations.

Both of them are facing graft charges involving the approval of a development project worth RM180 million in Seri Iskandar and the case will be heard at the Sessions Court here on Feb 10.

With the two vacancies, the Perak Pakatan Rakyat government comprising PAS, the DAP and PKR now has 30 seats (18 DAP, 6 PKR and 6 PAS) while the Barisan Nasional has 27.

In the general election in March 2008, the BN won 28 seats but the Bota Assemblyman, Datuk Nasaruddin Hashim defected to the PKR last week.

Mohammad Nizar said the Pakatan Rakyat state government in Perak was still strong even under the present circumstances as all the other State Assemblymen were still sticking to the Pakatan Rakyat.

In the last general election, Jamaluddin polled 6,771 votes to beat the BN candidate, Datuk M. Ramasamy who received 5,744 votes.

Mohd Osman won with a majority of 1,102 votes to wrest Changkat Jering. He polled 9,411 votes to beat the incumbent from BN and the State Speaker in the previous government, Datuk Mat Isa Ismail who garnered 8,309 votes - Bernama.