The Federal Court will rule on whether Kota Siputeh assemblyperson Abu Hassan Sarif’s absenteeism from the Kedah legislative assembly twice amounted to being absent for two consecutive meetings, thus rendering his seat vacant.   

A five-person panel chaired by Chief Judge of Malaya Zulkefli Ahmad Makinudin reserved their judgment on the matter after hearing submissions in the appeal by Kedah legislative assembly speaker Dr Abdul Isa Ismail against a Court of Appeal decision reinstating Abu Hassan as Kota Siputeh assemblyperson.

Justice Zulkefli said the court will not rush in delivering its decision and would give full grounds for the judgment.  

Federal Court judges Hashim Mohd Yusoff, Ahmad Maarop, Zaleha Zahari and Zainun Ali comprised the rest of the panel.  

Sulaiman Abdullah and Hafarizam Harun represented Dr Abdul Isa and Abu Hassan respectively while senior federal counsel Amarjeet Singh appeared for the Election Commission (EC).    

Sulaiman said the Court of Appeal erred in its interpretation of Article 51 of the Kedah State Constitution by importing the word “session” into the definition and concluding that Abu Hassan was not absent for two consecutive meetings, thereby not rendering his seat vacant.    

Article 51 states that the seat of a legislative assembly member shall become vacant if they are absent from the assembly without the speaker’s leave for two consecutive meetings.  

He said Article 51 did not state that the two consecutive meetings must be held in the same session.   

“If the legislature had intended that the absenteeism must be in the same session, it would have inserted the words “in a session” after the phrase “two consecutive meetings”, he said, adding that words should not be added to Article 51 where they were not intended.    

The Court of Appeal concluded that the April 19 and Aug 9, 2009 meetings (5th meeting of the first session and 1st meeting of the second session respectively) Abu Hassan was absent from were not two consecutive meetings.    

High Court ruling reversed

The Court of Appeal then reversed a High Court ruling that Abu Hassan was no longer the elected representative, and held that the July 1, 2009 proclamation form declaring the Aug 9 2009 meeting as the 1st meeting of the second session had in fact terminated the first session of the assembly.    

Sulaiman argued that since the Sultan of Kedah did not prorogue the legislative assembly, the first session continued and the Aug 9 2009 meeting was in actual fact the 6th meeting of the first session.  

“The speaker’s position is that Article 51 refers to any two consecutive meetings whether held in one and the same session, or in different sessions,” he stated.  

Amarjeet Singh contended that the proclamation form which declared the Aug 9 2009 meeting as the 1st meeting for the second session, was deemed to have prorogued the first session of the assembly.   

Therefore, the seat did not become vacant as the two meetings were not in a single session.  

Abdul Isa filed a judicial review to challenge the EC’s decision not to hold a by-election after he (Abdul Isa) declared Abu Hassan’s seat vacant.     

- Bernama