The Kuala Lumpur High Court Appellate and Special Powers division has fixed Monday to decide on former Kota Siputeh assemblyperson Abu Hasan Sarif and the Election Commission's stay application.

Justice Alizatul Khair Osman Khairuddin said this after hearing submission from lawyer Hafarizam Harun, senior federal counsel Kamaluddin Md Said and Kedah Speaker's lawyer, Sulaiman Abdullah.

On Monday, Alizatul Khair had ruled the Kota Siputeh had become vacant following Abu Hassan's absence from two state assembly meetings this year.

NONE Following the High Court decision, Abu Hassan was barred from attending the state legislative assembly sitting on Tuesday and more significantly, the EC will have to call for a by-election within the next 60 days, pending an appeal to the Court of Appeal.

Time is also running out for the EC following Monday's landmark decision, as under the Elections Act 1958, it would have to convene a special meeting between tomorrow and the latest by Monday to formerly announce whether a by-election would be held.

Following that, a writ of election would have to be produced between Nov 24 and Nov 30.

Both Abu Hasan, who was named the first respondent in the case, and the EC have filed their appeal at the appellate court on Tuesday.

Kamaluddin: Special circumstances

azlan Senior federal counsel Kamaluddin Kassim who is representing the EC said there were special circumstances for the court to grant a stay as the only matter affecting the assemblyperson was based on the interpretation of Article 51 of the Kedah constitution.

"If a stay is not granted, it will render our appeal at the Court of Appeal nugatory and will cause substantial injustice to the EC and the public at large.

"As a result of this, elections would have to be called and it would be a waste of public funds, should the appellate court find otherwise," said Kamaluddin.

Kamaluddin further contended that Kota Siputeh has 17 polling districts and in the last general election the EC had spent RM200,365 for the constituency.

He further submitted that should a by-election is called, and the Court of Appeal ruled otherwise, it would lead to a situation of having two elected representatives.

"No party will be prejudiced if EC's application for a stay is granted. On the other hand, if EC's application is not allowed, it will cause grave injustice to the commission and to the public at large especially taxpayers."

Hafarizam: Writ could not be cancelled

Lawyer Mohd Hafarizam Harun, representing Abu Hasan, submitted that should the High Court fail to grant a stay, it may result in a writ of election to be produced.

perak state govt crisis 030309 hafarizam harun He said when the writ is produced, there shall be no countermanding (cancellation) of the writ as issued by the EC, which will result in a new date for nomination and polling date.

"There is no provision for the countermanding of the writ. Furthermore, it is also wrong in law to assume that the EC can do this (countermanding).

"The EC has the constitutional duty to follow through the by-election until completion irrespective of the outcome of the appeals pending before Court of Appeal," Hafarizam submitted.

Hafarizam agreed with Kamaluddin's earlier submission that the cumulative effect of the court not granting a stay in which there could be a new candidate returned for the Kota Siputeh state seat.

"Further legal complications will arise and the judiciary will be involved in this political embroil," he remarked.

"If stay is not granted, it would be prejudicial and a complete abuse of the court's process," he said.

Sulaiman: Court would be against constitution

Senior counsel Sulaiman Abdullah who represented Kedah Speaker Abdul Isa Ismail said if the court decided to grant a stay, it would be violating the Kedah constitution.

"The court had ruled the seat vacated on Monday based on Article 51. The seat should have been vacated earlier in August, since Abu Hasan had skipped the second meeting on Aug 9, which have led to this situation."

sulaiman abdullah nizar vs zambry case 210509 "A stay would be contrary to provision of Article 51 of the constitution, as a stay would in effect with hold the EC from holding a by-election," he said.

Sulaiman also argued that Abu Hasan could stand again if the by-election is called, and if he wins, it would avoid the possibility of having two different assemblypersons.

Furthermore, he contended that EC should not be arguing on the issue of wasting public funds, as its job is to hold elections.

"It cannot be regarded as special circumstances in any instance. The administration of a by-election is mandatory, and it is a constitutional duty entrusted on the EC," he said.

Sulaiman further submitted that a stay will encroach the duties and powers of the speaker and this would violate the separation of powers doctrine.