Tuesday November 17, 2009
Rep absent without leave, so court declares Kota Siputeh state seat vacant
By M. MAGESWARI
KUALA LUMPUR: In a landmark judgment, 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.
In stripping Barisan Nasional’s Datuk Abu Hassan Sarif of his assemblyman status yesterday, High Court (Appellate and Special Powers) Justice Alizatul Khair Osman Khairuddin also ordered the Election Commission (EC) to call for a by-election for Kota Siputeh.
This will be the 10th by-election to be called since the 12th general election.
In an immediate reaction, EC deputy chairman Datuk Wan Ahmad Wan Omar said it would seek the Attorney-General’s advice on the next course of action.
On March 8, 2008, Abu Hassan beat PAS candidate Ismail Wan Teh for the Kota Siputeh state seat by a majority of 495 votes.
The Kedah State Assembly sits today for three days and Abu Hassan will not be allowed to attend.
Abu Hassan, who was absent for the April 19 and Aug 9 sittings this year, looked disappointed as the judgment was delivered and told reporters later: “We will file an appeal.’’
His lead counsel Datuk Hafarizam Harun told the court he would file an appeal at the Court of Appeal today.
Sulamain Abdullah, lead counsel for Kedah State Legislative Assembly Speaker Datuk Dr Abdul Isa Ismail, who had applied for the judicial review, said the court should not entertain any application for a stay because it would complicate matters for the Speaker today.
However, Justice Alizatul set Nov 20 to hear an application by Abu Hassan and the EC for a stay on her decision.
The court did not award any costs or damages to Dr Isa as he told the court it was a matter of public interest.
Following Abu Hassan’s absence on April 19 (the fifth meeting of the first legislative session in Kedah) and Aug 9 (the first meeting of the second session), Dr Isa had deemed the seat vacant based on Article 51 of the Kedah Constitution and wrote to the state EC office informing it of the vacancy.
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, Dr Isa filed for a judicial review of the EC’s decision, naming Abu Hassan and the EC as defendants.
In her ruling delivered at 5.28pm to a packed courtoom, 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.
Justice Alizatul said the phrase “two consecutive meetings appearing in the Kedah Constitution can only mean one meeting following the earlier meeting in uninterrupted succession” and did not mean two consecutive meetings in one session.
“Since the Aug 9 meeting was held after the April 19 meeting in uninterrupted succession, the two meetings are in effect two consecutive meetings.”
She added that the EC had acted irrationally when it accepted the medical certificate and the reason advanced by Abu Hassan when it had no power to do so.
She 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.)
While she said she agreed it was the EC which establishes the casual vacancy of a state seat, she held it had acted outside the scope of its power under the Kedah Constitution and the Election Act.
She added that the EC had also acted irrationally when it held that the Speaker must refer absences to the Rights and Privileges Committee before Article 51 of the Kedah Constitution could be invoked.
“It is the discretion of the Speaker or the House to decide whether the matter should be referred to the Rights and Privileges Committee,” she said.
Amer Hamzah Arshad, co-counsel for Dr Ali, said the EC must hold a by-election within 60 days from the date of the casual vacancy of the state seat under Section 12 (3) of the Election Act.
Co-counsel Mohamed Hanipa Maidin added that the EC would have to file a writ of election within four days from yesterday.
“It is a landmark decision because for the first time in constitutional history, the court has ordered the vacancy of a state seat because a state assemblyman was absent (from the legislature).”
He added that the ruling was a reminder for all assemblyman regardless of their political affiliation to carry out their functions and duties diligently.
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