KUALA LUMPUR, Nov 16 — The High Court here has ordered the Election Commission to call a by-election for the Kota Siputeh state seat in Kedah.
The decision means Umno’s Datuk Abu Hasan Sarif can no longer occupy the seat after he twice went AWOL from the state legislative assembly meetings.
High Court judge Datuk Alizatul Khair Osman Khairuddin said the Election Commision (EC) had encroached over the power of the Speaker when it decided to keep Abu Hasan in the state seat despite being told there is a vacancy.
Alizatul stated that the applicant’s counsels had proven Abu Hassan was absent for two consecutive state sittings without the approval of the Speaker.
The state Speaker Datuk Dr Abd Isa Ismail had filed suit against Abu Hasan for pretending he was still a state lawmaker after he was expelled by the Kedah legislative assembly for being absent twice in a row without the Speaker’s leave during legislative meetings.
According to Article 51 of the state constitution, “if any member of the legislative assembly is absent from the assembly without leave of the Speaker for two consecutive meetings, his seat shall become vacant.”
Today’s High court decision will force the EC to hold a by-election within 60 days from today.
Earlier, Abu Hasan had to wait patiently for nearly three hours while his supporters were laughing and joking before Judge Alizatul read her decision.
Alizatul said that the EC had encroached on the power of the Speaker in its decision to keep Abu Hasan in the state seat despite being told there was a vacancy.
She also stated that it had been proven that Abu Hassan was absent for two consecutive state sittings without the approval from the Speaker. Abu Hasan was absent from two meetings, the first on April 19, and the other time on August 9 this year, but did not ask permission from the Speaker beforehand.
Abu Hasan had not denied that he was absent twice but he disputed the issue of leave.
Abd Isa was only informed three days after the absences when a clerk of the legislature called Abu Hasan to find out why he was absent, after which Abu Hassan submitted a medical certificate to back up his “sick” claim.
Alizatul explained that it was the Speaker’s discretion to accept the medical certificate and for the state’s rights and privileges committee to decide.
She also pointed out that according to Kedah’s constitution, the state sitting will only be dissolved only when it is proclaimed by the Sultan and since no proclamation was made then the two meetings were held continuously.
Senior federal lawyer from the Attorney General’s Chambers acting for the EC, Datuk Kamaludin Md Said, requested the judge to allow for a stay on the order because the by-election involves public funds and the commission needed time to mobilise.
However, Alizatul disagreed and decided that the court would hear the written application by the EC for the stay on the mandamus order.
Abu Hassan was visibly disappointed after the court decision.
“I respect the court’s decision and leave it to my lawyers to process my appeal according to the law,” he told reporters.
When asked if he was saddened by the verdict, he replied, “It is normal lah for a politician,”
Abu Hasan’s lawyer, Hafarizam Harun, also confirmed that he will be filing the application to the court of appeal tomorrow.
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