KUALA LUMPUR, 12 Nov 2009: The High Court here fixed Monday to decide whether a fresh election will be held for the Kota Siputeh state seat in Kedah after incumbent assemblyperson Datuk Abu Hassan Sarif was absent from two state assembly meetings this year.
Justice Datuk Alizatul Khair Osman Khairuddin set the date after hearing lengthy submissions by counsel Sulaiman Abdullah for Kedah Speaker Abdul Isa Ismail, who is seeking judicial review of the Election Commission (EC)’s decision retaining Abu Hassan as the assemblyperson.
Isa wants the court to declare that Abu Hassan was no longer the assemblyperson following his failure to attend two consecutive sittings of the state assembly on 19 April and 9 Aug this year, and that the seat was vacant.
He is also seeking an order for the EC to call for a by-election.
Abdul Isa filed the judicial review on 1 Sept after the EC decided that there was no vacancy in the Kota Siputeh seat, and that Abu Hassan was still the assemblyperson.
In his submission, Sulaiman said: “Article 51 of the Kedah state constitution provides that if any member of the state legislative assembly is absent from the assembly without leave from the speaker for two consecutive meetings, his seat shall become vacant.
“The preconditions of Article 51 have occurred, there is no room for the first respondent to claim he is still the assembly[person] of Kota Siputeh.”
He also said that the EC, as the second respondent, had acted illegally and committed error of jurisdiction when it decided that there was no vacancy of the Kota Siputeh state seat and that Abu Hassan was still the assemblyperson of Kota Siputeh.
“They (the EC) are so carried away with the Federal Court’s decision that they now assume to have the sole power to determine a casual vacancy of the state seat,” said Sulaiman.
The counsel argued that the decision in the case of Perak speaker against Jamaluddin Mohd Radzi and two other assemblypersons, decided by a panel of three Federal Court judges, must be distinguished as that case involved the issue of
resignation by the assemblypersons.
“In our case, there is no dispute that the first respondent was absent, and he did not obtain leave from the speaker.
“The EC had acted illegally when it accepted the medical certificate and reason advanced by the first respondent when it had no power to do so. Such power lies solely in the hands of the speaker pursuant to Article 51 of the Kedah constitution,” said Sulaiman.
Counsel Datuk Hafarizam Harun for Abu Hassan said that under Article 53(5) of the Kedah constitution, the EC had the power to establish a casual vacancy, not the speaker.
He said the EC had written a letter dated 1 Sept 2009 to the speaker, giving full justification why the seat was not vacant.
“On 16 Aug, the first respondent met the speaker to explain his sickness and his absence at the last meeting, and handed over the medical certificate. The second respondent had acted reasonably when taking into account the reasons given by the first respondent, ” said Hafarizam.
Senior federal counsel Datuk Kamaluddin Md Said, for the EC, submitted that the EC had acted accordingly before establishing the state seat as not vacant.
“The EC cannot close its eyes, declare a vacancy and hold a fresh election. This is a big issue. Election involves public money. The EC must act accordingly,” he said.
Both Isa and Abu Hassan were present at the proceedings. — Bernama
