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Wednesday, November 25, 2009

EC Gets Stay Of Ruling Declaring Kota Siputeh Seat Vacant

PUTRAJAYA, Nov 24 (Bernama) -- No by- election just yet for the Kota Siputeh state seat in Kedah.

The Election Commission (EC) Tuesday obtained an interim stay order from the Court of Appeal on the High Court ruling declaring the seat vacant.

The stay of execution order was granted pending the disposal of the EC's appeal to the Court of Appeal against the High Court's Nov 16 ruling declaring the Kota Siputeh state seat vacant.

Following this decision, the EC would not be forced to issue the writ Wednesday to fix the dates for nomination and polling for the by-election.

According to the Elections Act 1958, the EC has 10 days to convene a special meeting to call for an election once the seat is declared vacant. That deadline is tomorrow since the High Court decision was made on Nov 16.

In unanimously allowing the EC's stay application, a three-judge panel comprising Court of Appeal judges Datuk Sulong Matjeraie and Datuk Kang Hwee Gee and High Court judge Datuk Abdul Aziz Abd Rahim held that there was special circumstances to grant the stay.

In delivering his decision at 7.30 pm, Sulong said the court was empowered under Order 44 of the Courts of Judicature Act to grant the interim stay to preserve the status quo to avoid unnecessary by-election and save public expenditure.

Sulong said the correctness of the High Court's ruling in declaring the Kota Siputeh seat vacant would have to be tested at the highest level, adding that no party would be prejudiced if the stay was granted.

He said the court was also of the view that points raised by Senior Federal Counsel Datuk Kamaludin Md Said, representing the EC, were novel and constitutional on whether the failure of a state assemblyman to attend two sittings would result in a state seat becoming vacant.

He said the issue also touched on public interest and public policy and the decision in the appeal might have a far-reaching effect in other states. Sulong said the stay order was in respect of the High Court decision and not in respect of any particular provision.

The quorum also ordered that the EC's appeal be heard expeditiously.

However, the same quorum struck out with costs Abu Hassan's application for a similar order after the court agreed with counsel Sulaiman Abdullah's submission that he did not have the right to appeal because he did not apply for a stay at the High Court stage.

At the High Court, Abu Hassan only supported the EC's application for the stay order.

High Court judge Alizatul Khair Osman Khairuddin, on Nov 16, held that BN assemblyman Abu Hassan no longer held the seat after failing to attend two consecutive meetings of the state assembly without leave.

She allowed the judicial review brought by Kedah Assembly Speaker Datuk Dr Abdul Isa Ismail, who sought to declare that Abu Hassan was no longer the assemblyman for the seat following his failure to attend two consecutive sittings of the state assembly, on April 19 and Aug 9, this year.

Meanwhile, in the two-and-half hour court hearing today, Kamaludin submitted that a stay should be granted to prevent an unnecessary by-election and wastage of public expenditure in the event the Court of Appeal allowed its (EC's) appeal and reversed the High Court ruling.

He said the EC's appeal of the High Court ruling would be rendered nugatory if the appellate court did not grant a stay order.

He also argued that the issues were of a novel one and public interest affecting the Kedah constitution.

Sulaiman, representing Dr Abdul Isa, however, argued that if the court should grant a stay, it would obstruct the operation of the Federal Constitution and State Constitution since the seat had been declared vacant.

Under the Federal Constitution, he said, when a seat was declared vacant, an election must be held within 60 days.

Sulaiman also said there was no urgency to grant the stay because the appellate court could hear the EC's appeal before 60 days.

He said that furthermore, by law, the court could not grant a stay on any declaratory order.

The hearing began at 3.30 Tuesday afternoon and the parties in the matter completed their submissions at about 5.50pm.

The quorum then took about one-and-half hours to deliberate before allowing the stay.


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