Round 1: Court upholds Kedah Constitution

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Aliran welcomes the Kuala Lumpur High Court decision declaring that the Kota Siputeh seat has been vacated. In doing so, the High Court has upheld the interpretation of the Speaker of the Kedah state assembly that under Article 51 of the Kedah Constitution the incumbent assembly member for Kota Siputeh Abu Hassan Sarif was no longer an assembly member.



Abu Hassan had inevitably forfeited his seat by being absent from two consecutive sittings of the assembly without the permission of the Speaker.

This simple fact was very obvious from the outset but the Election Commission took a position that not only differed from the Speaker’s interpretation but  it totally ignored Article 51 of the Kedah Constitution with regard to the definition of ‘two consecutive sittings”.

The EC’s decision was glaringly apparent that  its position was perceived to be blatantly pro-BN, confirming the accusation that the EC is incapable of being a neutral body discharging its duties without fear or favour.

Justice Alizatul was absolutely correct in stating, “In my view, Article 51 sets out the conditions which render the seat to be vacant.”

She further emphasised, ‘…I do not think the EC can override the power of the speaker under Article 51 of the Kedah Constitution.”

This is the legal position as far as the Kedah Constitution is concerned. It is  quite plain and simple and easily understood by the layman himself.

But in spite of this, the EC tried to bring in issues that were not catered for in the Kedah Constitution. It is ridiculous for the EC to insist that Abu Hassan should have been referred to the Rights and Privileges Committee before he could be disqualified. This position is not supported or justified by the provisions of the Kedah Constitution. Justice Alizatul rightly and appropriately dismissed the EC’s stand that Abu Hassan was still the assemblyman for Kota Siputeh as “an irrational decision.”

Justice Alizatul was correct in concluding that the Speaker “did not act unreasonably in rejecting the medical certificate dated 10 Aug 2009 after knowing that the assemblyman had also attended a function on the same day”.

The last-minute attempt to convince the Speaker that he was sick and therefore could not attend the assembly sitting did not hold water. The veracity of he being sick on that day is questionable because he had attended another function on the same day nullifying the sick medical certificate.

What this means is that he had tried to deceive the Speaker by claiming to be sick by producing a sick medical certificate. This brings into disrepute his integrity which is very unbecoming of him as an elected representative of the people.

This raises the question: Was he genuinely diagnosed as being sick or was the sick certificate dished out by a friendly doctor to cover him? Would the MAAC care or dare to find out the truth?

Now the next question is how would this case fare in Round 2? Aliran had observed that the Opposition could win Round 1 quite convincingly based on the legality of the matter but in Round 2, it inevitably would lose notwithstanding the fact that the law was on their side.

Will this pattern be repeated? From what we have observed and commented on 7 November 2009 – Is justice all about technicalities? – it appears that this pattern is waiting to be repeated. We witnessed this in the Kampung Buah Pala case, in the Perak crisis concerning Nizar, the people’s Menteri Besar, and in the application of Anwar for evidence that he was entitled to but denied.

Not only the credibility and integrity of the EC is at stake but more importantly the judges in the higher hierarchy must convince the public that they are capable of living up to their oath of office and render justice impartially.

P Ramakrishnan
President
19 November 2009

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