Another by-election looming

2009/11/17

KUALA LUMPUR: The High Court yesterday declared the Kota Siputeh state seat in Kedah vacant and held that its assemblyman was absent from two consecutive state assembly meetings without the permission of the speaker. Judge Datuk Alizatul Khair Osman Khairuddin ruled that Datuk Abu Hasan Sarif was no longer the assemblyman for the constituency.

With this ruling, Abu Hasan is barred from attending the state assembly meetings scheduled to be held from today until Thursday.

The court, however, will hear an application by the Election Commission on Friday for a stay of the order.

In her judgment delivered at 5.30pm, Alizatul said the EC had acted irrationally when declaring that there was no vacancy in the Kota Siputeh seat and retaining Abu Hasan as the assemblyman.

“While I agree that the EC has the power to determine casual vacancy, I don’t think it can override the power of the speaker under Article 51 of the Kedah constitution,” she said.

“Under the article, the speaker has the power to grant leave, and the EC had acted illegally in accepting the medical certificate produced by Abu Hasan.

“Article 51 sets out the conditions which renders the seat to be vacant and the first respondent (Abu Hasan) has satisfied the conditions.” The article provides that if any member of the state assembly is absent from the assembly without leave from the speaker for two consecutive meetings, his seat shall become vacant.

Alizatul also ruled that the two meetings which Abu Hasan did not attend fell within the same term as defined under the state Constitution.

“The EC had misconstrued the meaning of ‘two consecutive meetings’ as provided for under Article 51 of the Kedah Constitution.

I agree with the applicant’s counsel that Abu Hasan was absent from two consecutive meetings in one uninterrupted session.” Kedah assembly Speaker Datuk Dr Abdul Isa Ismail was represented by counsel Sulaiman Abdullah while Abu Hasan was represented by counsel Datuk Hafarizam Harun. Senior federal counsel Datuk Kamaluddin Md Said appeared for the EC.

Abu Hasan was absent from the assembly meeting on April 19 and Aug 9 this year.

The EC had on Sept 1 decided that Abu Hasan was absent from two consecutive state assembly meetings in different terms and not within the same term.

Isa filed the application for judicial review on Oct 1.

Outside the court, Abu Hasan said he accepted the court’s decision and left it to counsel to pursue the matter with the Court of Appeal.

Isa was not present.

In Alor Star, Menteri Besar Datuk Seri Azizan Abdul Razak was grateful with the High Court decision. He said the state government was ready to face the byelection and Pas had a good chance to win the seat.

State Umno deputy chief Datuk Ahmad Bashah Md Hanipah said the state Umno respected the decision and was waiting for Umno headquarters to decide on their next move.