Election Commission gets a stay for the Kota Siputeh by-election

By M. Mageswari, The Star

The Election Commission has succeeded in its bid at the eleventh hour to stay the by-election for the Kota Siputeh state seat in Kedah.

Court of Appeal judges Justice Sulong Matjeraie, who sat together with Justices Kang Hwee Gee and Abdul Aziz Abd Rahim, ruled that there were special circumstances to grant a stay order to the commission.

“The correctness of the High Court judge’s ruling had to be tested at the higher court,” Justice Sulong said after the Bench deliberated for almost two hours over the application filed by the commission Tuesday.

In the ruling delivered at 7.24pm Tuesday, 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 unnecessary by-election and waste of public funds.

In elaborating, Justice Sulong said the Bench was of the view that the stay would avoid 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 for two consecutive meetings, his seat shall become vacant.

Justice Sulong said the issues touched on public interest and public policy which may have far reaching consequences in other states.

“Under Section 44 of the Courts of the 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.

The appellate court also struck out a stay application by Datuk Abu Hassan Sarif against the Nov 16 ruling that he was no longer state assemblyman for Kota Siputeh and that his state seat was vacant.

The Bench ordered for the appeal by the commissiion and Abu Hassan to be heard expeditiously.

At the outset of hearing yesterday, Senior Federal Counsel Datuk Kamaluddin Md Said, who acted for commission, submitted that there were special circumstances which warrant the court to use its discretion to grant a stay over the by-election matter.

He said if the stay was not granted the commission had to issue a writ of election by Wednesday under Section 3 of the Election Act and proceed with the election process without waiting for the outcome of their appeal against the landmark ruling.

“We are not here as a rubber stamp to please the party to have a by-election when the Court of Appeal have not disposed off the appeal,” he said.

He said if the stay was not allowed it would render the appeal nugatory and cause injustice to the commission and the public at large.

He said the stay was necessary as the issue which involved the interpretation of Article 51 of the Kedah Constitution being raised for the first time in the country and concerned public interest.

Among others, Kamarudin said the refusal of a stay order would cause two competing claims if another representative was elected for the state seat.

However, lead counsel Sulaiman Abdullah, who acted for the Kedah Speaker, argued that this court could not stay a consequential order by the High Court to the commission to hold a by-election.

“The court should not act to set its own orders at naught, or exercise its discretionary powers in futility,” he added.

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 commission 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 commission on grounds that there were no special circumstances.