High Court rejects EC’s stay application on Kota Siputeh

Malaysiakini

In what amounts to a big blow for Barisan Nasional, the Kuala Lumpur High Court has rejected an application by the Election Commission (EC) for stay of an order to hold a by-election in Kota Siputeh, Kedah.

Following today’s decision by Justice Alizatul Khair Osman Khairuddin, senior federal counsel Kamaluddin Md Said – representing the EC – said the attorney-general’s chambers had filed an appeal this afternoon.

However, the EC is fighting against time as it will have to issue a writ by Wednesday, fixing the dates for nomination and polling.

Under the Elections Act 1958, the writ must be issued four to 10 days after a seat is declared vacant. Once issued, it cannot be countermanded (cancelled).

Mohd Hafarizam Harun, counsel for deposed Kota Siputeh assemblyperson Abu Hasan Sarif, will file his appeal against the stay decision.

In an immediate reaction, Abu Hasan said he accepted the court’s decision. Also present was Kedah BN chief Mahadzir Khalid, a former Kedah menteri besar, who said he would let the lawyers to resolve the matter.

No special circumstances

Justice Alizatul Khair, in her decision, agreed with lead counsel Sulaiman Abdullah (right) – for Kedah state assembly Speaker Abdul Isa Ismail – that the EC had failed to convince the court on the issue of special circumstances to allow the stay.

She said the argument of financial implication forwarded by Kamaruddin Md Said did not fall within special circumstances for granting the application.

“It is their ordinary duty under the law to conduct the election and the EC did not cite any case laws to support this argument. The court cannot grant a stay as it is EC’s duty to hold a by-election,” she said.

She also dismissed Kamaluddin’s submissions on the legitimate expectations of voters, as this matter should have been dealt with by Mohd Hafarizam.

“This should not concern the EC. As demonstrated in the Nordin Salleh case (in Kelantan) where the court annulled a by-election result and (reinstated the incumbent) assemblyperson as the rightful elected representative, this avenue is still open,” she said.

“Furthermore, the court cannot grant a stay as it would defeat the purpose of the declaration made last Monday.”

On Nov 16, Alizatul Khair had ruled that the EC had acted irrationally in not declaring the Kota Siputeh seat vacant after its elected representative had missed two state assembly sittings. She then ordered the EC to conduct a by-election within 60 days.

‘Let EC make decisions’

PAS Youth national deputy chief Ahmad Sabki Yusof, who was in court, lauded the decision not to grant a stay.

He expressed disappointment over the AG’s decision to file a stay at the appellate court without consulting the EC.

“I guess they are under directions from Prime Minister Najib Abdul Razak. This is a clear indication of interference by the executive,” said Ahmad Sabki (left), calling for the EC to be allowed to decide for itself in such matters.

“The AG’s chambers should not be deciding this on behalf of the EC.”

He also said PAS is prepared to face a by-election, including the possibility than BN could field Mukhriz Mahathir, the deputy international trade and industry minister.

Tags: Kota Siputeh, SPR