The Federal Court today dismissed an application by PAS, DAP, and PKR to nullify the results for the 222 parliamentary seats in the 2013 general election following questionable conducts by the Election Commission (EC).

Chief Justice Arifin Zakaria ( photo ),who led the five-member bench, ruled that the matter raised is inextricably related to the conduct of elections and therefore falls under Article 118 of the Federal Constitution.

"Hence, we dismiss the suit," he said, in not allowing the application for leave to appeal.

What the judgment means is that any challenge or allegation of misconduct of elections must be done through election petitions and presided over by an election judge.

The other judges on the panel were Court of Appeal president Justice Md Raus Sharif, and Federal Court judges Abdull Hamid Embong, Hasan Lah, and Zainun Ali.

Justice Arifin did not make any order as to costs.

The three opposition parties filed the suit to challenge the EC’s conduct of the 13th general elections, especially on the issue of the questionable usage of the indelible ink which could be washed off.

The three parties filed along with five individuals - candidates Dr Dzulkefly Ahmad (PAS), M. Manogaran (DAP), and Saifuddin Nasution Ismail (PKR); and voters Arifin Abd Rahman and R. Abbo.

They named EC chairperson Abdul Aziz Mohd Yusof, deputy Wan Ahmad Wan Omar, and the five EC members as defendants.

Dzulkefly contested in Kuala Selangor, Manogaran in Cameron Highlands, and Saifuddin in Kulim-Bandar Baharu. All three lost during the 2013 general elections.

Their suit had been struck out by the Kuala Lumpur High Court without it being heard, and the Appeal Court upheld the decision via majority opinion.

There were a total of 73 election petitions filed on the results of the 13th general elections. Of these, 40 were filed by Pakatan while BN filed 21 .

Article 118 in question

While Justice Alizatul Khair Osman and Justice Rohana Yusof ruled that the High Court has no right to nullify the election as it is not an election court, the third judge Justice Prasad Sandosham Abraham ruled partially in favour and agreed the appellants have the right to question the EC on its obligations during an election.

Senior lawyer Tommy Thomas ( photo ) submitted that the EC can be sued because under Article 118’, as its suit does not refer specifally to the EC.

Article 118 states no election to the House of Representatives or to the Legislative Assembly of a State shall be called in question, except by an election petition presented to the High Court which has jurisdiction over the constituency where the election was held.

“There is no mention of the EC and hence, it is not immune to litigation and it does not enjoy sovereign from legal action.

“Nowadays, even the royal family can be brought to court as a result of the setting up of special courts,” Tommy said.

However, the apex judges asked that as stipulated in Article 118, the challenge must be made through election petitions.

Justice Arifin noted that there were many petitions which the apex court had heard regarding the indelible ink issue.

Senior federal counsel Amarjeet Singh said any challenges on misconduct during elections - be it the misuse of indelible ink, fraud, and conspiracy - is through election petitions.

“It has to be via the election petition and it is to be heard before an election judge,” he said, arguing there is no other avenue.

Manogaran, who was present in today's proceeding, said he had hoped the judge would be brave enough to hear the matter and let the High Court hear the application.

“It is a letdown as it does not give us an avenue to challenge the EC via a suit,” he said.

PKR vice-president and Batu MP Tian Chua, who was also present, expressed disappointment with the outcome as the EC had truly neglected its duties with regard to the indelible ink issue.

Tian Chua, whose victory was challenged by BN candidate Dr Dominic Lau, was awarded RM50,000 costs , which was insisted upon by his lawyer during the proceedings.

Titiwangsa’s PAS candidate Ahmad Zamri Asa'ad Khuzaimi was ordered to pay RM40,000 to the EC and RM30,000 to his opponent when his case was dismissed in Kuala Lumpur.