Published: Friday November 20, 2009 MYT 7:20:00 PM
Stay decision on Kota Siputeh ruling next Monday
KUALA LUMPUR: The High Court has set Monday to deliver its decision over the stay application by the Election Commission against the ruling that Kota Siputeh state seat was vacant.
The Commission also applied for a stay against the court order compelling the Commission to call for a by-election for the state seat in Kedah.
High Court (Appellate and Special Powers) Justice Alizatul Khair Osman Khairuddin fixed the date upon hearing lengthy submissions by the parties on Friday.
The Commission was represented by Senior Federal Counsel Datuk Kamaruddin Md Said, Datuk Mohd Hafarizam Harun acted for former Kota Siputeh assemblyman Datuk Abu Hassan Sarif and lead counsel Sulaiman Abdullah acted for Kedah Speaker Datuk Dr Abdul Isa Ismail.
Kamaruddin submitted that there were special circumstances to justify the court exercising its discretion to order a stay of execution pending appeal.
“In the event the stay is not granted, it will render the Commission’s appeal to the Court of Appeal nugatory and will cause substantial injustice to the Commission and the public at large,” he argued.
Kamaruddin said a by-election for the Kota Siputeh constituency would involve public money.
“In the last general election, the Commission alone spent RM200,365 for the constituency of Kota Siputeh. If the application for stay is not allowed and the by-election is to be conducted then Commission has to apply for an allocation of money for this purpose,” he said.
He also said that the legitimate expectation of the voters who had elected Abu Hassan in the last general election would be prejudiced.
He said the court has the inherent powers to grant a stay to prevent injustice or an abuse of the court process.
Hafarizam, who supported the stay, contended that there could not be any countermanding (cancellation) of the writ of election once it was issued by the Commission.
“In fact, the Commission is under its constitutional duties to follow through the by-election until its completion, irrespective of the outcome of the appeal pending at the Court of Appeal,” he argued.
Hafarizam also said that if a new candidate was returned as the new Kota Siputeh assembyman and if Abu Hassan won his appeal, it would only cause competing claims by two assemblyman over one constituency.
Besides that, Hafarizam said the granting of a stay would also preserve the integrity of the appeal.
The Commission and Abu Hassan had filed appeals against the High Court ruling which are now pending at the Court of Appeal.
In a landmark judgment on 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.
In her ruling, Justice Alizatul said the Commission had acted illegally and irrationally in deciding there was no vacancy in 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.
On Oct 1, Dr Isa had filed for a judicial review of the Commission’s decision, naming Abu Hassan and the Commission as defendants.
Sulaiman, however, argued that matters of the constitution cannot be stayed, in particular the mandatory duty to hold a by-election in a state seat.
He said a stay would cause confusion and in effect be an injunction against the Kedah Speaker from carrying out his duties fully under the state constitution.
Related Stories:
Abu Hassan files appeal
Rep absent without leave, so court declares Kota Siputeh state seat vacant
EC to appeal court decision on Kota Siputeh (Update)
DPM orders Kota Siputeh rep to attend assembly sitting
Kedah Speaker vs EC: High Court sets Nov 12 date
Kedah Speaker gets to file for review of EC decision
Kedah Speaker sues state rep, EC (Update)
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