UPDATED
By Debra Chong
PUTRAJAYA, Nov 24 — The Election Commission (EC) scored a minor victory today in blocking a High Court order forcing it to issue a notice that would effectively set the ball rolling for a by-election in Kota Siputeh.
A three-man panel of judges at the Court of Appeal here unanimously ruled in favour of the election body and granted it a stay pending its main appeal to reverse the Kuala Lumpur High Court’s decision on Nov 16 declaring the Kedah state seat vacant.
The High Court judge had on that day declared the Kota Siputeh seat vacant after its assemblyman, Datuk Abu Hasan Sarif, skipped out on two legislative assembly meetings in a row.
Under Article 51 of the Kedah Constitution, a member of the legislative assembly automatically loses his seat if he misses two consecutive meetings without first getting the speaker’s permission.
But with today’s decision, the EC is no longer duty-bound to issue the writ of election tomorrow, which sets in motion the election process.
Section 3 of the Election Act states that the EC must issue a writ between four and 10 days after a seat is declared vacant.
But there are no laws that would have allowed the EC to stop the by-election once the order goes out.
The three-man Bench led by Datuk Sulong Mat Jeraie explained that had the power to grant a stay order “to preserve the status quo” and “prevent an unnecessary by-election and save public funds”.
The judges said it was crucial to avoid a situation where the elected representative would be deprived of his lawfully won office and that a temporary stay would not cause any of the parties to suffer any prejudice until the main appeal is disposed.
They also noted that the “correctness” of the High Court’s decision will be “tested at the next level” when the main appeal is heard.
The Bench added that the appeal shall be heard as soon as possible.
Lawyer from the Attorney General’s Chambers acting for the EC, Datuk Kamaludin Md Said, later commented that it would be unlikely to be held within the month.
It would be more realistic to expect a hearing in two to three weeks, Kamaludin said.
This is because the parties needed to get several documents, notably the High Court’s grounds of judgment of the Nov 16 decision, before the appeal can move to the next level, said Umno’s legal adviser, Datuk Hafarizam Harun, who is representing the ousted Kota Siputeh assemblyman, Datuk Abu Hasan Sarif.
Hafarizam echoed Kamaludin’s view that the appeal would be more likely to be heard in mid-December.
“We may have to work over Christmas,” he quipped.
The 37-year-old lawyer added that the main issue behind both Abu Hasan and the EC’s dispute concerned the meaning of the phrase “two consecutive meetings” stated in Article 51 of the Kedah Constitution.
In Hafarizam’s view, it made a difference if the meetings ran consecutively in different sessions.
Hafarizam had this morning filed for a stay against the High Court’s order with the Court of Appeal, but had his case struck out by the Bench when it was pointed out that he had skipped a basic step and failed to file the stay first at the High Court.
The Court of Appeal’s ruling came as a surprise as two of the three judges had earlier appeared to have been swayed by the arguments put forward by the lawyers for the Kedah speaker.
The two wingmen flanking judge Sulong, Datuk Kang Hwee Gee and Datuk Abdul Aziz Abd Rahim - the judge who had earlier this year ruled that Datuk Seri Nizar Jamaluddin was the lawful Perak mentri besar - had repeatedly quizzed Kamaludin to show how a stay would affect the EC’s main job in carrying out an election.
The Kedah speaker, Datuk Dr Abd Isa Ismail, had launched legal action against Abu Hasan and the EC after both ignored his letters to them informing the seat was vacant and needed to be filled up again through a by-election.
Veteran lawyer Sulaiman Abdullah, for Abd Isa, supplied that the EC’s only duty was to carry out elections and was not affected by who wins it.
Sulaiman added that the EC’s arguments that carrying out a by-election involved a huge sum of money and that the imagined wrath by voters at being deprived of their elected representative cannot be counted as “special circumstances” to avoid doing that duty.
Judge Kang had acknowledged as much when Kamaludin first raised that point.
“The duty of the court is to prevent a waste of election and funds. We don’t want to have unnecessary by-elections,” Kamaludin said.
“Funds are not the criteria. I don’t see how the cost of elections can influence a stay order. Cost is not the issue here,” Judge Kang retorted.
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