Published: Friday November 6, 2009 MYT 2:36:00 PM

Kedah Speaker vs EC: High Court sets Nov 12 date

By M. MAGESWARI

mages@thestar.com.my

KUALA LUMPUR: The High Court has set Nov 12 to hear an application by Kedah State Legislative Assembly Speaker Datuk Dr Abdul Isa Ismail challenging the Election Commission’s decision to retain Kota Siputeh state assemblyman Datuk Abu Hassan Sarif.

High Court (Appellate and Special Powers) judge Justice Alizatul Khair Osman Khairuddin set the date after hearing the views of the parties involved on the urgency of the matter.

Counsel for Abu Hassan, Datuk Mohd Hafarizam Harun, said the matter had to be disposed off before the assembly sitting which begins on Nov 17 as his client had received a letter dated Nov 5 from the Speaker saying that he was not recognised as Kota Siputeh assemblyman.

“My client is being barred from attending the sitting. Unless the Speaker gives an undertaking that his (Abu Hassan) status quo will remain, we have no choice but to ask this matter to be disposed off before the sitting in order to clarify the issues involved,” he said.

Mohd Hafarizam, who is also the Umno legal adviser, said if his client could not attend the sitting and the application was not decided by the court, it would tantamount to allowing the matter to become merely academic.

Lead counsel Sulaiman Abdullah, who acted for the Speaker, said the parties could file affidavits by Tuesday for the court to hear the matter next week.

“As far as the Speaker is concerned the seat is vacant. We want the election to go on. He (the Speaker) had no choice but to write a letter to the respondent (Abu Hassan) to explain his status,” he said.

Upon being pressured for an early date for the hearing, the judge asked Sulaiman if the counsel was asking her to decide over the constitutional issue during the weekend.

“Unless you think I am extraordinary,” she asked, to which Sulaiman said “yes.”

Justice Alizatul said she did not think “it is simple as that.”

Senior Federal Counsel Suzana Atan, who represented the Commission, however noted that there was a Federal Court ruling that it was the Commission which establishes the casual vacancy of a seat.

“There is no casual vacancy of a seat in the Kedah State Legislative Assembly. I think the Commission should be given at least a week to put in its affidavits to answer this,” she said.

Sulaiman argued that there were points of law to be decided by the court and he would not file any affidavit in-reply in order to expedite the hearing.

Dr Abdul Isa, who filed an application for a judicial review on Oct 1, named Abu Hassan of Barisan Nasional and the Commission as defendants. The High Court granted leave for the application on Oct 30 to hear its merits.

Dr Abdul Isa is seeking a declaration that Abu Hassan is no longer the assemblyman for the Kota Siputeh seat following his failure to attend two consecutive sittings of the state assembly without the permission of the Speaker.

Abu Hassan was absent for the sittings on April 19 and Aug 9 this year.

Dr Abdul Isa also wants a court order for Abu Hassan to prove on what authority he was still the state assemblyman, and an injunction to stop him from carrying out any of his duties as a state assemblyman.

He also wants the court to declare the seat vacant, and an order for the Commission to call for a by-election, along with damages, costs and other reliefs deemed fit by the court.

On Sept 1, the Commission decided that there was no vacancy in the Kota Siputeh seat and that Abu Hassan, who had won the seat in the 12th general election in March last year, was still its assemblyman.

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