Pensiangan by election

Published on: Friday, February 13, 2009

Kota Kinabalu: The Federal Court here Thursday reserved decision in an appeal by Parti Bersatu Rakyat Sabah (PBRS) President Tan Sri Joseph Kurup to quash the nullification of his election to the Pensiangan parliamentary seat in the March 8 general election.

Appeal Court President Tan Sri Alauddin Mohd Sheriff, who sat with Chief Justice of Malaya Datuk Arifin Zakaria and Federal Court judge Datuk Nik Hashim Abd Rahman, said the judgment would be delivered at a date to be fixed.

They reserved judgement after hearing submission from Kurup’s (appellant) counsel Firoz Hussein Ahmad Jamaludin, Ansari Abdullah representing the respondent Danny Anthony Andipai and Senior Federal Counsel (SFC) Azizah Nawawi.

This appeal came about after Election Court judge David Wong Dak Wah had on Sept 8, 2008 at the Kota Kinabalu High Court declared that Kurup was not the duly returned winning candidate of the Pensiangan constituency.

Wong ruled that the returning officer Bubudan OT Majalau was wrong in rejecting Andipai’s nomination papers on nomination day – Feb 24, 2008.

He held that it had breached Andipai’s constitutional right to take part in the election.

Kurup, who is Rural and Regional Development Deputy Minister, filed his appeal on Sept 17, 2008. Kurup’s other lawyers in this case were Lau Cheung Hoon and Mariati Robert.

In his submission Thursday, Fairoz said that the mandatory requirement of Section 32(b) of the Election Offences Act 1954 had not been complied and therefore there was no basis in law for the election petition. He submitted that the appeal should be allowed with costs.

Section 32(b) of the Act, stated among others, that the election of a candidate at any election shall be declared to be void on an election petition, only if to the satisfaction of the Election Judge that non-compliance of any law relating to the conduct of any election affected the result of the election.

Fairoz further submitted that the Election Judge should had only allowed the election petition if the grounds stipulated in Section 32(b) of the Act were met. He added that the judge was not entitled to consider issues such as legitimate expectation or natural justice as these did not form part of the Act.

On the rejection of Andipai’s nomination papers, Fairoz submitted that the Election Commission’s (EC) deputy director had no jurisdiction to decide (to give directive to the returning officer to accept the papers) on the matters which were clearly within the jurisdiction of the returning officer.

He said the Election Judge’s finding that the EC deputy director was ‘functus officio’ was without basis in law as the deputy director had no power to adjudicate on the matters in the first instance.

Fairoz also submitted that the Election Judge failed to distinguish the returning officer from the Election Commission and that he was wrong to equate them as one.

SFC Azizah, in her submission as an “intervener” in the hearing also submitted that the EC deputy director was not entitled to make the decision to accept nomination papers as this power was only with the returning officer.

She said the returning officer was right in rejecting Andipai’s nomination paper as it was delivered at 10.25am, after nomination was closed, in accordance with the regulation, at 10am.

SFC Azizah who appeared with SFC Amarjeet Singh, submitted that there has not been any failure on the part of the returning officer to comply with the election laws.

Meanwhile, Ansari submitted, among others, that there was no specific provision during the submission by SFC Amarjeet Singh that Andipai’s was not aware that there was objection on his nomination papers.

He submitted that there were 12 candidates for three constituencies with only one counter available in the nomination centre on Feb 24, 2008 and that the returning officer dealt with nine candidates after 9.40am which was not humanly possible within 20 minutes.

Ansari, who appeared with Datuk Chau Chin Tang and Erveanna Ansari, said the returning officer entertained only three candidates before 9.40am.

Ansari said Andipai, who entered the nomination centre at 9.35am and given a coupon bearing No:10 attempted to tender his nomination paper but was rejected on ground that it was passed 10am.

Andipai’s papers were accepted after one of the assistant returning officers sought the advice of the State EC deputy director which gave the directive to accept Andipai’s nomination papers.

He said the judge also found it unbelievable that the returning officer did not know, as he had claimed, that coupons bearing numbers were given to the candidates on that day.

Ansari said the Election Judge was right when he held that it was unbelievable that the returning officer did not know as he alleged that coupons bearing numbers were given to the candidates on that day and that if what he said was true, it only reflected his own shortcomings as the returning officer who had full charge of the nomination centre.

Ansari said the Election Judge had not erred in accepting Andipai’s election petition and declared Kurup’s victory uncontested for the Pensiangan parliamentary seat null and void.