The Federal Court sitting in Kota Kinabalu will have to deliver its ruling by March 16 on an appeal by Pensiangan MP Joseph Kurup against a Sept 8 Election Court ruling by Judge David Wong stripping him of the seat. The Elections Commission has two months from the date of the ruling to hold a by-election in the event the Federal Court goes against Kurup.

joseph kurup Kurup won the seat "unopposed" on Feb 24 after the nomination papers of his challenger, Daniel Anthony Andipai, 41, of PKR was rejected by Returning Officer Bubudan OT Majalau on the grounds that he was "late". The rejection was despite a directive from the Sabah EC deputy director.

Anidipai's lawyer, Ansari Abdullah, raised the March 16 deadline in the face of media reports on the Federal Court sitting in Kota Kinabalu yesterday which ranged between ruling deferred indefinitely to ruling put off on the Pensiangan case. "Kurup's appeal was filed on Sept 17," pointed out Ansari. "The Federal Court has six months from Sept 17 to deliver its ruling. This brings us to March 16, no later."

Appeal Court President Alauddin Mohd Sheriff who sat together with Chief Justice of Malaya Ariffin Zakaria and Federal Court Judge Nik Hashim Nik Abdul Rahman decided to reserve their judgment after hearing arguments from Kurup's counsel Firoz Hussein Ahmad Jamaluddin, Senior Federal Counsel Azizah Nawawi and Amarjeet Singh who represented the Attorney-General of Malaysia and counsel Ansari Abdullah representing Andipai, the respondent.

Without basis in law

Before the spate of by-elections in Kedah and Perak arose, there have been reports citing credible sources that the ruling BN did not want to face the possibility of a by-election in Pensiangan in March or April.

pensiangan sabah parliament seat 080908 The reason cited was the planned transition of power from Prime Minister Abdullah Ahmad Badawi to Mohd Najib Razak, his deputy who recently won the Umno presidency unopposed.

Firoz told the court that the Election Court Judge (Wong) was not entitled to consider issues such as legitimate expectation or natural justice as these did not form part of the Election Offences Act 1954. Firoz submitted that the Election Judge's finding that the EC deputy director was "functus officio" was without basis in law as he had no power to adjudicate on matters which were clearly within the jurisdiction of the Returning Officer. He further submitted that the Election Judge failed to distinguish the Returning Officer from the Election Commission and that he was wrong to equate them as one.

SFC Azizah, in her submission as an "intervenor", said the Returning Officer was right in rejecting Andipai's nomination paper as it was delivered at 10.25 am after nomination was closed, in accordance with the regulation, at 10 am.

Ansari, meanwhile submitted among others, that there was no specific provision during the submission by SFC Amarjeet Singh that Andipai was aware that there was objection on his nomination papers.

Too many candidates

He submitted that there were 12 candidates on nomination day on Feb 24, 2008 for the Returning Officer to deal with between 9 am and 10 am, that there was only one counter open, that the Returning Officer had only dealt with three candidates by 9.40 am and that it was humanly impossible for the remaining nine candidates to be attended to in the 20 minutes left to 10 am. Andipai who entered the nomination centre at 9.35 am and was given a coupon bearing the number 10 had his nomination papers rejected on the grounds that it was after 10 am. Andipai's papers were accepted after one of the Assistant Returning Officers sought the advice of the Sabah EC deputy director.

Ansari cited the Election Court Judge who ruled that, "if that (rejecting after 10 am) is the law, it will lead to abuse and chaos, abuse in that one party can get a group of people to submit their nomination papers early to ensure that his or her opponent will not get to the Returning Officers before 10 am."

The Election Court Judge held, Ansari submitted, that 12 citizens turned up to submit their nomination papers and the number had in fact caused confusion and dispute resulting in the election petition. "What if 20 citizens turned up on Nomination Day? Are we to say that only those who are able to submit their nomination papers before 10 am are entitled to exercise their constitutional rights to contest in the election?"

In rebutting the arguments of Firoz and Azizah, Ansari submitted that under Section 5 of the Election Act, it is the duty of the EC to ensure that all its Returning Officers act in a fair and impartial manner.