Verdict on Pensiangan by-election

No by-election in Pensiangan
Joe Fernandez | Mar 13, 09 10:48am

The Federal Court in Kota Kinabalu this morning overturned an Election Court decision on Sept 8 to strip Pensiangan MP Joseph Kurup of the seat and declare it vacant.

Federal Court Judge Nik Hashim Nik Abdul Rahman who delivered the verdict held that Kurup was duly elected to the parliamentary constituency of P182 Pensiangan.

The Federal Court’s decision comes three days before the expiry of a six-month deadline.

Nik Hashim held that there had not been any failure on the part of the Returning Officer (RO) to comply with the election laws.

“Indeed, the RO had discharged his duties admirably well according to the law,” Nik Hashim ruled.

“Accordingly, we unanimously allow the appeal with costs here and in the court below. The deposit is to be returned to the appellant. The orders of the learned judge are set aside.”

The judge said that the requirement that nomination papers must be delivered between the hours of nine and ten in the morning was mandatory and “therefore, the RO was justified in upholding the objection and rejecting the respondent’s nomination papers for non-compliance with regulation 6(2)(b) of the Regulations”.

“While it is true that the Election Commission has the power of control and supervision over the conduct of the elections and that the RO is subject to the direction of the Election Commission under sections 5 and 4 of Act 19 respectively, nevertheless, such power and direction must be exercised according to the law,” said the judge.

“The directive of the deputy director of the Sabah Election Commission directing the RO to accept the respondent’s nomination papers outside the time frame was contrary to regulation 6(2)(b) and 6(2A0(a) of the Regulations and was thus unlawful.”

The court held that the learned judge of the Election Court was erroneous when he held that the power of the Election Commission overrides the Regulations.

“Nothing in the law provides for such a power.

“Besides, it is not within the purview of the Election Commission to effect any amendment to election regulations relating to the conduct of elections without due observation of section 16 of Act 19,” said the judge.

The court noted that although there were 12 citizens of the land who had wanted to contest the seat and only one counter was open at the nomination centre, nevertheless, “the responsibility for submitting the nomination papers to the RO within the time frame lies with the candidates”.

“No statutory duty is imposed on the RO to ensure that all nomination papers of all candidates present at the nomination centre must be accepted after the time frame,” the judge explained.

“So, in this case, the fault lies with the respondent for failing to deliver his nomination papers within the stipulated time to the RO.”

‘Fatal failure’

In the present case, the judge noted that the respondent had pleaded the facts and the grounds of the petition but without specifying which provisions of written law relating to the conduct of the election had not been complied with by the RO.

“The failure is fatal,” said the judge.

“Parties are bound by their pleadings. Since the mandatory requirements stipulated by section 32(b) of the Act had not been met, the learned judge ought to have dismissed the respondent’s petition outright.”

Election Court judge David Wong had ruled that, “if that (rejecting nomination papers after 10am) is the law, it will lead to abuse and chaos, abuse in that one party can get a group of people to submit their nomination papers early to ensure that his or her opponent will not get to the Returning Officers before 10am.”

The Election Court Judge held that 12 citizens turned up to submit their nomination papers and the number had in fact caused confusion and dispute resulting in the election petition.

“What if 20 citizens turned up on nomination day? Are we to say that only those who are able to submit their nomination papers before 10am are entitled to exercise their constitutional rights to contest in the election?”

Counsel Firoz Hussein, Mariati Robert and Lau Cheung Hoon from Kurup Robert Marcus & Co appeared for Kurup.

Ansari Abdullah, Chau Chin Tang, Jonathan Yassin and Erveana Ansari from Ansari & Co appeared for Andipai.

Senior Federal Counsel Azizah Nawawi and Amarjeet Singh were interveners for the Attorney-General of Malaysia.

Kurup had appealed on Sept 17 against a Sept 8 Election Court ruling by Judge Wong stripping him of the seat. Kurup won the seat “unopposed” on Feb 24 after the nomination papers of his challenger were rejected by Returning Officer Bubudan OT Majalau on the grounds that he was “late”.

The rejection was despite a directive from the Sabah Election Commission deputy director.

Appeal Court President Alauddin Mohd Sheriff who sat together with Chief Justice of Malaya Ariffin Zakaria and Federal Court Judge Nik Hashim Nik Abdul Rahman decided on Feb 12 to reserve their judgment after hearing arguments.

Api Api decision upheld

Also today, the Federal Court, sitting in Kota Kinabalu, struck out an appeal by a voter to quash the Election Court’s decision to dismiss her petition challenging the election of Barisan Nasional’s Dr Yee Moh Chai as the Api Api state assemblyperson in the general election.

Yee, the Parti Bersatu Sabah deputy president and state resource development minister, won the seat with a 174-vote majority against PKR’s Christina Liew.

The petition was filed by Api Api voter Audrey Karen Barry, who claimed that there were elements of corrupt practice or general intimidation by Yee or his agents, including printing and distributing pamphlets containing false and inflammatory statements.

The Federal Court, comprising Court of Appeal President Alauddin Mohd Sheriff, Chief Justice of Malaya Arifin Zakaria and Justice Nik Hashim Nik Abd Rahman heard submissions from both parties on Feb 12 and reserved judgment to today.

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