Umno's Abu Hassan Sharif has been reinstated as the state assemblyperson for Kota Siputeh in Kedah.

azlan This follows the Court of Appeal's decision today to overturn a 2009 Kuala Lumpur High Court decision which had declared the seat as vacated.

The decision was a unanimous one by the appellate court's three-member panel led by Justice Ramly Ali, and overturns an earlier decision by Justice Alizatul Khair Osman Khairuddin.

The other two judges are justices Linton Albert and Aziah Ali.

Kedah Speaker Dr Abd Isa Ismail, who was represented by lead counsel Sulaiman Abdullah, applied for a stay.

Justice Ramly, however, asked him to file a proper application.

The Court of Appeal gave no grounds for the judgement, with Ramly saying only that the court agreed with the submission by Abu Hassan's counsel Mohd Hafarizam Harun and the Election Commission (EC).

Sulaiman ( below ) also asked the court to provide the grounds of judgment for the decision today for purposes of their appeal to the Federal Court.

nizar vs zambry court case sulaiman abdullah lawyer 070509 The EC was represented by senior federal counsel Amarjeet Singh and senior federal counsel Suzana Atan.

The major contention in the appeal was based on Article 51 of the Kedah constitution, which states that any member of the state legislative assembly who is absent from the assembly without leave of the speaker for two consecutive meetings, will have his seat vacated.

Justice Alizatul had in her judgment two years' ago ruled that the EC cannot override the power of the speaker, as provided for under Article 51 of the Kedah Constitution.

"In my view, Article 51 sets out the conditions which render the seat to be vacant and the first respondent (Abu Hassan) had satisfied the conditions," said Alizatul in allowing the judicial review filed by Abd Isa.

Absent for two sittings

Abu Hassan did not come to the assembly seating on the fifth and final day of the first session on April 19, 2009 and the first day of the second session on Aug 9, 2009.

He did not obtain permission from Abd Isa to be absent on the two days, and only produced a medical certificate for Aug 9 several days later, after it was demanded by the clerk on the instructions of the speaker.

NONE Amarjeet, however, today submitted that the EC was saying there was no vacancy because the two alleged meetings was not in a single session.

Hafarizam adopted Amarjeet submission and explained at length that the fifth day of the first session should not be seen to be deemed as continuous just because Abu Hassan ( above, in suit ) missed the first day of the second session.

Furthermore, the Umno lawyer said his client had informed the opposition leader on Aug 9 that he was suffering from a heart ailment.

“When someone has a heart ailment or complained of chest pains, he certainly need to attend to his condition first. The speaker cannot dismiss someone for valid medical reasons [sic] and there was an MC to prove this,” he said.

Hafarizam also asked the appellate court to take notice of the Shah Alam High Court decision in declaring the Port Klang seat occupied by BN-friendly assemblyperson Badrul Hisham Abdullah as a good decision against the speaker.

'Adding words'

Abd Isa’s lead counsel Sulaiman, however, pointed out that in Abu Hassan's letter when explaining why he did not attend the Aug 9 meeting clearly said he thought an assemblyperson would be disqualified if he misses three-meetings continuously.

Sulaiman also asked what prevented Abu Hassan from informing the speaker or the clerk of his apparent heart ailment when he had informed the opposition leader of the matter.

It is required that an assemblyperson inform the speaker over their absence, Sulaiman asserted.

“This is not the fault of the speaker and when asked, he only produced the medical certificate several days later,” he said.

NONE The senior lawyer also urged the Court of Appeal to adopt a true, literal and real meaning of the words in Article 51 of the Kedah constitution.

“What the EC and the appellant (Abu Hassan's) counsel is saying is to add words in the constitution. The word there is two consecutive meetings and he had been missing two days consecutively without the speaker's permission,” Sulaiman said.

Commenting on the decision today, Hafarizam ( left ) said the court was right in determining that two consecutive meetings should be read carefully and in accordance with the Kedah constitution.

"It should not mean as what had been suggested by the Kedah speaker," he said.

"It (the ruling) also shows that the speaker's power is not absolute and can be checked by the courts, as with the Selangor (Port Klang) case."

He advised all assemblyperson and MPs to do their job responsibly.

Justice Ramly also granted Abu Hassan's application for costs of RM5,000. Abu Hassan has not been receiving his pay and allowances as assemblyperson following the Nov 2009, Kuala Lumpur High Court decision

Ramly, who heads the panel, was the solitary judge at the Court of Appeal when it granted a stay of the Kuala Lumpur High Court decision which declared Pakatan Rakyat's Mohd Nizar Jamaluddin as the rightful Perak menteri besar.

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