Updated at 8:35pm, 16 Nov 2009
KUALA LUMPUR, 16 Nov 2009: A fresh election will be held for the Kota Siputeh state seat in Kedah after the High Court here today declared it vacant.
Justice Datuk Alizatul Khair Osman Khairuddin ruled that the seat was vacant after incumbent assemblyperson Datuk Abu Hassan Sarif absented from two state assembly meetings this year.
Following the High Court decision, Abu Hassan will be barred from attending the state legislative assembly sitting tomorrow.
In her decision, Justice Alizatul held that the Election Commission (EC) had acted irrationally. Its decision that Abu Hassan was still the assemblyperson for Kota Siputeh and that the state seat was not vacant ought to be quashed, she said.
“While I agree that the EC has the power to determine the casual vacancy, I do not think the EC can override the power of the speaker under Article 51 of the Kedah Constitution,” she said in her decision delivered at 5:30pm.
“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 Justice Alizatul in allowing the judicial review filed by Kedah Speaker Datuk Dr Abdul Isa Ismail.
Abdul Isa, represented by leading counsel Sulaiman Abdullah, filed the judicial review on 1 Oct after the EC decided that there was no vacancy of the Kota Siputeh seat and that Abu Hassan was still the assemblyperson.
Abdul Isa wanted the court to declare that Abu Hassan was no longer the assemblyperson following his failure to attend two consecutive sittings of the state assembly on 19 April and 9 Aug this year, and that the seat was vacant.
In his application, Abdul Isa also sought an order for the EC to call for a by-election.
Article 51 of the Kedah State Constitution provides that if any member of the state legislative assembly is absent from the assembly without leave of the speaker for two consecutive meetings, his [or her] seat shall become vacant.
In her decision today, Justice Alizatul said it was not disputed that Abu Hassan did not obtain leave from the speaker to absent himself from two consecutive meetings, and had only issued his medical certificate to the speaker on 10 Aug 2009.
“The speaker has the power under Article 51 of the Kedah Constitution to grant leave, and he did not act unreasonably in rejecting the medical certificate dated 10 Aug 2009 after knowing that the assembly[person] had also attended a function on the same day,” she said.
Justice Alizatul held that the EC had acted illegally in accepting the medical certificate issued by Abu Hassan as being the reason for his absence.
The EC had also made an irrational decision in deciding that Article 51 could only be invoked after the speaker referred the matter to the Rights and Privileges Committee, she added.
“There is no mandatory provision imposed on the speaker to do so because the decision to refer the matter to the committee or not is his discretion since leave matter is not a privilege conferred on an assembly[person],” she reasoned. — Bernama