The people of Kedah will know on Monday if there will be a by-election for the Kota Seputih state seat.

The Kuala Lumpur High Court (Appeallate and Special Powers) division would also decide if its assemblyperson Abu Hasan Sarif, who was alleged to have missed two consecutive assembly sittings could be present at the state legislature.

Justice Alizatul Khair Osman Khairuddin heard submissions from lead counsel Sulaiman Abdullah representing the Kedah Speaker, Hafarizam Harun representing Kota Seputih assemblyperson Abu Hasan Sarif, and senior Federal Counsel Kamaluddin Md Said representing Election Commission (EC).

Sulaiman submitted Abu Hasan had violated Article 51 of the Kedah constitution by being absent from two state assembly sessions in a row, and hence he can no longer claim to be an elected representative.

NONE Furthermore, Sulaiman representing Kedah Speaker Abdul Isa Ismail, said the Election Commission had acted "illegally and irrationally" in not declaring the seat vacant.

The lawyer also cited three alleged wrongful decisions made by the EC with regards to this matter. They were:

  • The commission acted illegally when it decided there was no vacancy.
  • The commission acted illegally, irrationally and arbitrarily in accepting the BN rep’s medical certificate which was initially rejected by the speaker.
  • The commission acted illegally by ruling that the speaker should refer the matter to the Rights and Privileges Committee before invoking Article 51 (to declare the seat vacant).

The speaker is seeking a judicial review to challenge the EC's decision and declare the seat vacant.

The speaker also wants the court to determine if the commission had erred and acted illegally.

On Sept 1, the EC declared Abu Hassan of Umno, is still the Kota Siputeh elected rep despite not showing up for two consecutive sessions.

Failed to attend two sittings

Laying the bare facts, Sulaiman said Abu Hasan was absent during the assembly sitting on April 19, and again on Aug 9, the only meeting convened after the April date.

Furthermore, he said Abu Hasan did not obtain leave from the Speaker to be absent from the sitting, and the Speaker himself did not grant any leave.

sulaiman abdullah Sulaiman ( right ) further submitted that this could be considered two sittings, as the April sitting was a separate from the August sitting.

He added there was no question of bias or mala fide ( bad intention ) on the Speaker's part as he had in the past allowed an Umno assemblyperson to take leave to go to abroad.

"Hence, Abu Hasan's counsel cannot argue that there was bias on Abdul Isa's part as the evidence suggests otherwise.

"The medical certificate was only produced three days after the sitting. He also met the Speaker on Aug 16, several days after the sitting," Sulaiman said.

Abu Hasan had allegedly sent an SMS to the opposition leader on morning of Aug 19 but he handed his medical certificate at 3pm, which was after the sitting.

Speaker no power to decide

Abu Hasan's counsel, Hafarizam submitted the Speaker has no power to decide the state seats vacant as the authority that should be allowed to decide is the EC.

"The EC is the authority which establishes casual vacancy and not the Speaker. Hence, the EC's decision is legally and procedurally correct and rational," he said.

"Hence, this application for a judicial review should be dismissed."

Hafarizam also said the Speaker had acted mala fide in declaring the seat vacant despite Abu Hasan having met him earlier.

Kamaluddin submitted that Article 51 should have been read together with Article 55 and the Speaker could not act on its own.

He said the matter should have been brought before the Committee of Rights and Privileges to decide before deciding whether to declare the seat vacant.

"Clearly, the Speaker had acted beyond his powers to declare it vacant as the matter should be decided by the committee. Hence, this court should quash the application," he said.

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