High Court orders EC to hold by-election in Kota Siputeh
By M. MAGESWARY
KUALA LUMPUR: The Election Commission (EC) must hold a by-election for Kota Siputeh state seat in Kedah within 60 days from the date the seat was declared vacant by the High Court on Nov 16.
The EC will have to issue a writ of election for the by-election by its deadline on Wednesday.
The EC, however, filed for a fresh application for a stay against the High Court ruling at the Court of Appeal late Monday afternoon.
In rejecting a stay application by EC on Monday, High Court (Appellate and Special Powers) judge Justice Alizatul Khair Osman Khairuddin said the commission had failed to show special circumstances for the court to grant a stay pending appeal.
“The court will be very cautious to grant a stay over a constitutional duty conferred to EC, “ she told a packed courtroom on Monday.
Justice Alizatul said the EC through Attorney-General’s Chambers had not provided case laws which could have assisted her if to allow a stay on an operation of the constitutional provision.
However, the judge said lead counsel Sulaiman Abdullah, who acted for Kedah Speaker, had provided a persuasive case law of Chandrika Prasad vs the Republic of Fiji and Attorney-General of Fiji case in 2000 to assist the court over the matter.
Justice Alizatul said in the absence of any other case law to support right of the court to grant a stay against its order to compel the EC to call for a by-election for Kota Siputeh, the court would not allow for such a stay.
“It is the constitutional duty of the EC to hold a by-election,” she ruled.
“In the absence of special circumstances, the court cannot grant a stay of declaration,” she said, adding the law did not provide for a stay of declaration.
In explaining her grounds, Justice Alizatul said she agreed with Sulaiman that financial consideration by EC to hold a by-election did not mount to a special circumstance.
On the legitimate expectation of the electors who had elected Datuk Abu Hassan Sarif as their representative in the last general election would be prejudiced and the winning candidate would be frustrated if the landmark ruling was reversed by the Court of Appeal later, Justice Alizatul said “I do not think it is special circumstances”.
Besides that, she said a case law (Dewan Undangan Negeri Kelantan vs Nordin Salleh & Anor ,1992) provided by Sulaiman had showed that the appellate court had the power to make a consequential order for the subsequent by-election to be made null and void.
Datuk Kamaluddin Md Said, who acted for EC, said the commission filed a fresh application for a stay at the Court of Appeal as provided for by the Courts of the Judicature Act.
In a landmark judgment on last Monday, the High Court declared the Kota Siputeh state seat vacant after ruling that its assemblyman was no longer one for failing to attend two consecutive meetings of the state legislature without leave.
Abu Hassan was absent for the meetings on April 19 and Aug 9. Both were just one-day meetings.
In her ruling, Justice Alizatul said the EC had acted illegally and irrationally in deciding there was no vacancy of the Kota Siputeh seat and in holding that Abu Hassan was still its assemblyman.
The judge also said that under Article 51 of the Kedah Constitution, the power to give leave from attending the assembly lay with the Speaker.
(Article 51 provides that if any member of the legislative assembly is absent without leave of the Speaker for two consecutive meetings, his seat shall become vacant).
On Sept 1, the EC replied it accepted Abu Hassan’s medical certificate as explanation for his absence and as such there was no vacancy in the Kota Siputeh seat and he was still its assemblyman.
On Oct 1, Kedah Speaker Datuk Dr Abdul Isa Ismail, filed for a judicial review of the EC’s decision, naming Abu Hassan and the EC as defendants.
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