The petitioner’s lawyers of the Lubuk Merbau election petition are crying foul after judge Abdul Rahman Sebli said that neither they nor the petitioner could speak in court, again.

 

On Aug 13 last year, the same judge had made the same ruling on the basis that the lawyers have no locus standi to represent the petitioner, Mohd Ridzuan Hasif, whereas Mohd Ridzuan is not allowed to represent himself because he had already opted to be represented by lawyers.

 

The case was later struck out on preliminary objections, but the Federal Court then ordered for the case to be remitted back to the Ipoh Election Court following an appeal.

 

One of the petitioner’s lawyers, Leong Cheok Keng, told Malaysiakini on Friday that the apex court’s had called for a perbicaraan (hearing), which the legal team understood to mean a full trial.

 

However, they were taken aback when Abdul Rahman decided on Jan 8 to hear preliminary objections again instead of the merits of the case. This was on the first day of a three-day hearing.

 

He said that the preliminary objections made were similar to those made on Aug 13, and the judge opined that his previous decisions on them still stands.

 

He said the petitioner’s legal team had argued in court on Jan 8 that the preliminary objections have already been heard last year and the Federal Court has already reversed the decision.

 

However, he said the judge has taken the view that only his decision to strike out the election petition was reversed but his other rulings still stand.

 

“So that was a roundabout way of saying that his ruling that lawyers couldn't speak is still correct…

 

“So by now we are left with nothing - lawyers can’t speak, petitioner also can’t speak. I do not know what the Federal Court decision means anymore. It is being made nugatory (useless).

 

“The Federal Court said a trial could go on but no meaningful trial can go on if the lawyer can’t speak and even the petitioner is ruled that he can’t speak because he has chosen to engage a lawyer,” said Leong, who is also the Malim Nawar assemblyperson.

 

This leaves the lawyers of the respondents - the Election Commission and the Lubok Merbau assemblyperson Siti Salmah Mat Jusak – as the only ones able to make submissions in court for the remainder of the hearing.

 

Siti Salmah had defeated PAS candidate Mohd Zainudin Mohd Yusof with a majority of 53 votes during the general election last year. Mohd Ridzuan is a voter is the constituency.

 

Written notice

Among the objections raised were ones based based on Rule 9 and Rule 34 of the Election Petition Rules 1954.

Rule 9 states that a petitioner needs to leave written notice to the court registrar informing whether he would be acting on his own or name his advocate.

 

Rule 34 states that upon appointment, an advocate must also give written notice to the registrar. According to Bernama’s reports of last year’s hearings, only the lawyer may be named in the notice and not the legal firm.

 

Leong said the only new objection presented to the court this week was the Election Petition Act 1954 provision that election petitions must be completed in six months, which Leong said ‘cannot physically be done.’

 

“Actually in the first round (of hearings), the six-month (deadline) it was complied. We went for an appeal and the Federal Court remitted it back (to the Election Court) for a hearing.

 

“It is inconceivable that, with this in mind, just because the six months is over, you cannot hear it again,” he said.

 

Leong, who is also the Malim Nawar assemblyperson, said Mohd Ridzuan had also tried to apply to recuse the judge over concerns of bias, but the application was dismissed .

 

The judge, Abdul Rahman, is expected to make a decision on the remaining preliminary objections on Jan 16.

 

In the meantime, Leong said Mohd Ridzuan has ordered his legal team to study whether Abdul Rahman acted in contempt of the Federal Court.

 

“We have to research on this. I cannot say ‘yes’ or ‘no’ at this point,” said Leong.

 

'Free to object'

Meanwhile, when asked to comment on the proceedings, Chief Justice Arifin Zakaria said it is up to Abdul Rahman whether or not to hear the preliminary objections, and up to the parties involved to bring the matter to the Federal Court if they are dissatisfied.

 

“You see when it came to us on appeal last time, it was made on some preliminary objections. But when we sent it back for trial – not to say full trial – the parties are free to raise another objection if they want, but that is up to the judge.

 

“We can’t, from the Federal Court, direct them. Maybe on another matter, a different matter. We cannot stop the judge from doing what he did, because it is on another matter completely…

 

“Of course, this kind of thing is not to be encouraged because it will slow down the process. Rightly, parties should raise those objections in the initial stage, not at this stage, but that is my personal view.

 

“It is up to the parties to bring it up to the Federal Court again. We shall see how it goes, because I can’t direct the court on how to proceed with the case. It is not right,” he told a press conference in Putrajaya yesterday.

 

Separately, Bar Council president Christopher Leong ( right ) said the laws related to election petitions are plagued by a ‘labyrinth’ of technicalities, and this caused many election petitions following the 13th general election, to be dismissed on procedural or technical grounds rather than the merits of the case.

 

He noted that a record of about 70 election petitions were filed, but only a handful were not dismissed on preliminary issues.

 

“This has impacted adversely on the principle of access to justice. In this regard, the provisions of the Election Petition Act and Rules are outmoded and unnecessarily technical, and ought to be revised,” he said during his speech yesterday morning at the opening ceremony of the 2014 legal year.