Wednesday November 25, 2009
Court grants EC stay order for Kota Siputeh by-election
PUTRAJAYA: The Election Commission (EC) succeeded at the eleventh hour to stay the holding of the by-election for the Kota Siputeh state seat in Kedah.
Court of Appeal judge Justice Sulong Matjeraie, who sat together with Justices Kang Hwee Gee and Abdul Aziz Abd Rahim, ruled there were special circumstances to grant a stay order to the EC.
In the ruling delivered at 7.24pm yesterday after almost two hours of deliberation by the Bench, Justice Sulong said it was a unanimous decision and that no party would suffer prejudice if the stay order was granted.
He said the stay would prevent an unnecessary by-election and wastage of public funds.
In elaborating, Justice Sulong said the Bench was of the view that the stay would prevent the elected representative from being deprived of his office.
“We are of the view that the points raised are noble constitutional points as to the establishment of the casual vacancy of a state seat, in particular, interpretation of Article 51 of the Kedah Constitution.
“The stay is not in respect of any provision but to an order which is subject to an interpretation at the higher court,” said Justice Sulong.
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.
Justice Sulong said the issues touched on public interest and public policy which could have far-reaching consequences in other states.
“Under Section 44 of the Courts of Judicature Act, we have the power to grant any stay to preserve the status quo of the appeal,” he added.
The Bench did not make any orders as to the costs to the parties yesterday.
At the outset of the hearing yesterday, Senior Federal Counsel Datuk Kamaluddin Md Said, who acted for the EC, submitted that there were special circumstances which warranted the court to use its discretion to grant a stay over the by-election matter.
He said if the stay was not granted, it would render the appeal futile and cause injustice to the EC and the public at large.
Among others, Kamaluddin said the refusal of a stay order would cause two competing claims if another representative was elected for the state seat.
In a landmark judgment on Nov 16, 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 Abu Hassan of his assemblyman status, High Court (Appellate and Special Powers) judge Justice Alizatul Khair Osman Khairuddin ordered the EC to issue a writ of election and to hold a by-election for the state seat.
Abu Hassan was absent for the April 19 and Aug 9 meetings this year.
On Monday, Justice Alizatul also rejected a stay application by the EC on grounds that there were no special circumstances.
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