The Kota Siputeh seat was declared vacant by the Kuala Lumpur High Court last Monday, on the ground that assemblyperson Abu Hassan Sarif (above) had been absent from two state assembly meetings this year.
After the High Court's decision today, the attorney-general's chambers filed an appeal on behalf of the EC at the Court of Appeal.
UMNO information chief Ahmad Maslan ... ‘I am saying we are prepared for a by-election’
Jerlun MP Datuk Mukhriz Mahathir Jerlun MP Datuk Mukhriz Mahathir (pic) refused to confirm or deny that he will be contesting as Umno’s candidate in the possible by-election in Kota Siputeh.“I am willing to accept any decision made by the top leadership and also the sentiments on the ground are taken full consideration.“At the same time, I have to assure that even though I am not chosen as a candidate, I will put in a 110 per cent to make sure that our candidate wins,” he told reporters in the parliament lobby here.
Deputy PM said No to Mukhriz as candidate in Siputeh.
The Election Commission (EC) scored a minor victory today in blocking a High Court order forcing it to issue a notice that would effectively set the ball rolling for a by-election in Kota Siputeh.
A three-man panel of judges at the Court of Appeal here unanimously ruled in favour of the election body and granted it a stay pending its main appeal to reverse the Kuala Lumpur High Court’s decision on Nov 16 declaring the Kedah state seat vacant.
The High Court judge had on that day declared the Kota Siputeh seat vacant after its assemblyman, Datuk Abu Hasan Sarif, skipped out on two legislative assembly meetings in a row.
Under Article 51 of the Kedah Constitution, a member of the legislative assembly automatically loses his seat if he misses two consecutive meetings without first getting the speaker’s permission.
But with today’s decision, the EC is no longer duty-bound to issue the writ of election tomorrow, which sets in motion the election process.
Section 3 of the Election Act states that the EC must issue a writ between four and 10 days after a seat is declared vacant.
But there are no laws that would have allowed the EC to stop the by-election once the order goes out.
The three-man Bench led by Datuk Sulong Mat Jeraie explained that had the power to grant a stay order “to preserve the status quo” and “prevent an unnecessary by-election and save public funds”.
The judges said it was crucial to avoid a situation where the elected representative would be deprived of his lawfully won office and that a temporary stay would not cause any of the parties to suffer any prejudice until the main appeal is disposed.
They also noted that the “correctness” of the High Court’s decision will be “tested at the next level” when the main appeal is heard.
The Bench added that the appeal shall be heard as soon as possible.
Lawyer from the Attorney General’s Chambers acting for the EC, Datuk Kamaludin Md Said, later commented that it would be unlikely to be held within the month.
It would be more realistic to expect a hearing in two to three weeks, Kamaludin said.
This is because the parties needed to get several documents, notably the High Court’s grounds of judgment of the Nov 16 decision, before the appeal can move to the next level, said Umno’s legal adviser, Datuk Hafarizam Harun, who is representing the ousted Kota Siputeh assemblyman, Datuk Abu Hasan Sarif.
Hafarizam echoed Kamaludin’s view that the appeal would be more likely to be heard in mid-December.
“We may have to work over Christmas,” he quipped.
The 37-year-old lawyer added that the main issue behind both Abu Hasan and the EC’s dispute concerned the meaning of the phrase “two consecutive meetings” stated in Article 51 of the Kedah Constitution.
In Hafarizam’s view, it made a difference if the meetings ran consecutively in different sessions.
Hafarizam had this morning filed for a stay against the High Court’s order with the Court of Appeal, but had his case struck out by the Bench when it was pointed out that he had skipped a basic step and failed to file the stay first at the High Court.
The Court of Appeal’s ruling came as a surprise as two of the three judges had earlier appeared to have been swayed by the arguments put forward by the lawyers for the Kedah speaker.
The two wingmen flanking judge Sulong, Datuk Kang Hwee Gee and Datuk Abdul Aziz Abd Rahim - the judge who had earlier this year ruled that Datuk Seri Nizar Jamaluddin was the lawful Perak mentri besar - had repeatedly quizzed Kamaludin to show how a stay would affect the EC’s main job in carrying out an election.
The Kedah speaker, Datuk Dr Abd Isa Ismail, had launched legal action against Abu Hasan and the EC after both ignored his letters to them informing the seat was vacant and needed to be filled up again through a by-election.
Veteran lawyer Sulaiman Abdullah, for Abd Isa, supplied that the EC’s only duty was to carry out elections and was not affected by who wins it.
Sulaiman added that the EC’s arguments that carrying out a by-election involved a huge sum of money and that the imagined wrath by voters at being deprived of their elected representative cannot be counted as “special circumstances” to avoid doing that duty.
Judge Kang had acknowledged as much when Kamaludin first raised that point.
“The duty of the court is to prevent a waste of election and funds. We don’t want to have unnecessary by-elections,” Kamaludin said.
“Funds are not the criteria. I don’t see how the cost of elections can influence a stay order. Cost is not the issue here,” Judge Kang retorted.
No Mukhriz for Kota Siputeh, says Muhyiddin
The Barisan Nasional (BN) will not be fielding Jerlun Member of Parliament Datuk Mukhriz Mahathir as the candidate for the Kota Siputeh seat in the event a by-election is held for it, said Deputy Prime Minister Tan Sri Muhyiddin Yassin.
Muhyiddin (picture), who is also Barisan Nasional deputy chairman, said this did not mean Mukhriz was not suitable but it was because the BN wanted give a local the chance to be the candidate.
He said Mukhriz could help in campaigning as he was well received by voters in Kota Siputeh, which is a state seat under the Jerlun parliamentary constituency.
Muhyiddin told this to reporters after chairing a meeting of the National Minerals Council here today.
He had been asked about talk that Mukhriz, who is also Deputy International Trade and Industry Minister, would be the BN’s candidate for the seat if a by-election was held for it.
On the appeals filed by the Umno assemblyman for Kota Siputeh and the Election Commission (EC) seeking a stay of the order issued by the High Court for the EC to call a by-election for the seat, Muhyiddin said : “We will have to wait for the decision, we cannot pre-empt anything.”
However, Muhyiddin said the BN was prepared for any eventuality and that the coalition was confident of defending the seat.
The applications by the EC and Kota Siputeh assemblyman Datuk Abu Hassan Sharif for a stay of the High Court ruling declaring the Kota Siputeh state seat vacant will be heard by the Court of Appeal here this afternoon.
On Nov 16, Kuala Lumpur High Court judge Alizatul Khair Osman Khairuddin delivered a landmark decision declaring the seat vacant after ruling that Abu Hassan was no longer holding the seat following his failure to attend two consecutive meetings of the state assembly without leave.
UMNO ready for full battle in Kota Siputeh if High Court decide by election is must regardless of EC stay of execution appeal
Umno can still go to the Appellate Court to try and reverse the High Court ruling that a by-election be held in Kota Siputeh but the party said today they are already bracing for battle.
The Election Commission (EC) failed today to get the High Court here to stay its Nov 16 decision that a by-election in the Kedah state seat of Kota Siputeh must be held within 60 days.
This means that the EC will have until Wednesday to announce the date for the by-election which leaves Umno with only a day to apply for leave to appeal against the High Court’s decision.
Umno information chief Datuk Ahmad Maslan today said the party’s head legal advisor, Datuk Hafa Rizam Harun, will still try and appeal tomorrow, despite the time constraint.
“But whether or not the court can grant the stay of execution tomorrow is unknown. The bottom line is the EC will have to decide on Wednesday and I am saying we are prepared for a by-election,” he told a press conference at Parliament lobby here.
The Kota Siputeh was declared vacant by the Kedah State Assembly Speaker after its incumbent, Umno’s Datuk Abu Hasan Sarif failed to attend two consecutive assemblies.
Under the state constitution, the Speaker can declare the seat vacant if the representative fail to give concrete reason or to inform the House of the reason behind his or her absence.
The EC rejected the Speaker’s decision to declare the seat vacant and this led to a court battle.
Kedah is governed by Pakatan Rakyat with PAS lawmakers dominating the assembly.
The Kota Siputeh state seat, which falls under the Jerlun parliamentary constituency helmed by Umno’s Datuk Mukhriz Mahathir, is traditionally a Barisan Nasional-Umno stronghold. Abu Hasan won the seat with a slim majority of 495 in Election 2008.
Ahmad said this factor will be an advantage to the ruling party and he hopes to repeat in Kota Siputeh the success it had in the Bagan Pinang vote.
“We will use the experience to try and increase the majority there,” he said, referring to the whopping threefold increase in majority votes the party received in the Bagan Pinang state vote.
Umno will likely face PAS in the likelihood that the Appellate Court refuses to grant them a stay of execution tomorrow.
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