The Court of Appeal today granted an interim stay to the Election Commission against a High Court ruling calling for a by-election for the Kota Siputeh state seat.

The last-minute reprieve was granted by the court at about 7.20pm and had come just in time before the EC's deadline tomorrow to issue a writ for the by-election.

With the stay being granted today, the EC can postpone issuing the writ to announce the date for the nomination and polling.

azlan The unanimous decision of the Court of Appeal today followed High Court judge Alizatul Khair Osman Khairuddin's decision to dismiss the EC's application for stay yesterday.

The Court of Appeal panel was headed by justice Sulong Matjeraie. Other members of the panel were justices Kang Hwee Gee and Abd Aziz Abdul Rahim.

By law, once the EC had produced the writ to announce the nomination and polling dates, these dates cannot be "countermanded" (cancelled).

The court's reasoning

Justice Sulong Matjeraie said that the stay was granted after the panel took into consideration of the public interest and public policy as the matter may have far reaching effects to other state constitutions.

"We agree that if a by-election is called when there is a question of someone still holding office would be a wastage of public funds.

"What we need to do is to preserve the status quo so no one would be deprived of injustice," he said.

Sulong also said there were special circumstances for the court to grant the stay order.

He said the court also considered the issue of "casual vacancy" based on the provision of Article 51 of the Kedah constitution, adding that this article must be interpreted properly by the Court of Appeal.

He said the appellate court should look to see if the High Court had correctly interpreted the state constitution to declare a vacancy of the seat.

"While we agree an order of stay would render the Kedah and federal constitution inoperational, we are however of the view that this court order would bring greater injustice if it (EC) were to go ahead (in issuing the writ)."

"Certainly, we can prevent a loss of public funds should the decision proved otherwise," added the judge.

Earlier senior federal counsel Kamaluddin Md Said, for the EC, submitted that there were special circumstances to provide a stay.

He said that if the EC had fixed the dates and subsequently its appeal against the High Court decision was successful, it would only render the holding of the by-election as a waste of public funds.

Furthermore, Kamaluddin said if a by-election was called, it may also lead to a position of having two elected representatives if the EC's appeal had been allowed.

Going against the constitution

azlan Senior lawyer Sulaiman Abdullah, for the Kedah speaker Abdul Isa Ismail, told the court that by granting a stay, it would only be obstructing the operation of the constitution since the seat had been declared vacant.

"When a seat is declared vacant, election must be held within 60 days and writ of election had to be issued by tomorrow," he said.

Sulaiman said there was also no urgency to grant a stay as the appellate court can hear EC's appeal proper before 60 days.

"Hence, there is no urgency for this court to grant a stay. Furthermore, by law the court could not grant a stay on any declaratory order."

On Nov 16, KL High Court justice Alizatul delivered a landmark decision declaring the seat vacant .

This was because Umno's Abu Hasan Sarif had missed two consecutive state assembly sittings earlier this year.

Yesterday, she rejected the EC's application for a stay of her order to call a by-election within 60 days, leading to an appeal being lodged with the appellate court at 4.45pm by the Attorney-General's Chambers.

No date for the main appeal

NONE Earlier today, deposed assemblyperson Abu Hasan also filed a stay application at the Court of Appeal against the High Court ruling.

He also filed an affidavit and certificate of urgency at the Palace of Justice in Putrajaya to overturn the High Court's declaration that the state seat in Kedah has become vacant.

The Court of Appeal also considered his stay application along with the EC's appeal but did not consider his application to overturn the High Court decision to vacant his seat.

The Court of Appeal is expected to fix a date soon to hear the appeal on that matter.

In the event the appellate court had rejected the stay application today, the EC would have been forced to conduct the nation's 10 th by-election since the 2008 general election even before its appeal against the High Court decision was heard.