Selangor Speaker Datuk Teng Chang Khim formally notified the EC about the vacancy of the Port Klang state seat last week, declaring that Umno’s Badrul Hisham Abdullah was no longer an assemblyman.
“We will hold a meeting and refer to all our legal experts,” Abdul Aziz told The Malaysian Insider over the weekend.
Teng had said the Selangor constitution stipulates that the power to declare a casual vacancy in a seat lay with the Speaker and not the EC.
He said the Port Klang seat was vacant as of January 16 as Badrul had failed to attend state assembly proceedings for six months since July 5, 2010.
But EC deputy chairman Datuk Wira Wan Ahmad Wan Omar claimed that the federal constitution gave the EC the mandate to establish vacancies in parliamentary or state seats.
“At the end of the day, the federal constitution is the supreme law,” Wan Ahmad told The Malaysian Insider.
“So, the state constitution should not contradict the spirit of the federal constitution,” he said.
Wan Ahmad said the federal constitution empowered the EC to establish casual vacancy in a seat in cases of death, bankruptcy, resignation or the loss of a seat under the law.
Article 54(1) of the federal constitution states: “Save as provided under Clause (3) whenever there is a vacancy among members of the Senate or a casual vacancy among members of the House of Representatives such vacancy or casual vacancy shall be filled within sixty days from the date on which it is established by the Election Commission that there is a vacancy, and an election shall be held or an appointment made accordingly.”
Wan Ahmad said the EC would study the Selangor state constitution and the federal constitution before deciding if it should call for a Port Klang by-election.
“If the vacancy is established, we will set the dates for the by-election,” he said.
The Federal Court had ruled that the EC was the body that decided whether a seat was vacant following the constitutional crisis in Perak when Barisan Nasional took over the state in 2009.
However, the judgment also said that this did not apply in Johor, Negri Sembilan, Selangor and Terengganu as their constitutions provided that “a casual vacancy shall be filled within 60 days from the date on which it occurs.”
Teng had said the EC would be committing contempt of the House and of the Selangor constitution if it failed to call for a by-election — the nation’s 16th to date — within 60 days.
Wan Ahmad, however, brushed aside Teng’s remarks.
“It is his right to say that,” said Wan Ahmad.
“If the representative (Badrul) brings the matter to the court, we will leave it to the court,” he added.
On Thursday, Selangor Umno deputy chief Datuk Noh Omar said Badrul would seek a court declaration that he is still the Port Klang assemblyman.
Badrul also said he would attend the emergency state assembly sitting scheduled for today.
Teng, however, insisted that Badrul would not be permitted to do so.
Wan Ahmad said today the EC could not declare if Badrul should be allowed to attend the emergency sitting.
“It is not for the EC to say that,” said the EC deputy chairman.
“This is between the Selangor Speaker and YB Badrul. If YB Badrul wants to attend, he can attend. If Teng does not let him attend, he can also choose not to let him attend,” he added.
The Selangor Pakatan Rakyat government is seeking to amend the constitution to resolve the ongoing impasse over the appointment of its new state secretary Datuk Mohd Khusrin Munawi. - Malaysian Insider
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