PUTRAJAYA (Nov 24, 2009) : The Election Commission (EC) today succeeded in obtaining a stay order against a High Court ruling, which compelled the EC to hold a by-election for the Kota Siputeh state seat in Kedah.

Abu Hassan Sharif

Court of Appeal judges Datuk Sulong Mat Jeraie, Datuk Kang Hwee Gee and Datuk Abdul Aziz Rahim allowed the EC's application for a stay order against the decision by High Court judge Datuk Alizatul Khair Osman Khairuddin on Nov 16, which declared that the Kota Siputeh seat is vacant and Datuk Abu Hassan Sharif is no longer the assemblyman for the seat.

The stay order meant that the EC would not have to issue a writ today to fix the dates for nomination and polling for a by-election.

Under the Elections Act 1958, the EC has 10 days to convene a special meeting to call for an election once a seat is declared vacant.

Sulong said there are special circumstances to grant a stay of the High Court ruling.

"We can prevent a unnecessary by-election and save public funds," he said.

"The correctness of the High Court ruling has not been tested in the higher courts."

He said no parties will suffer prejudice if the stay is granted, and ordered the appeal against the High Court decision to be heard expeditiously.

Today's unanimous decision was delivered at 7.30pm after the court heard submission from both parties -- the EC and the Kedah State Assembly Speaker.

On Monday, the same High Court judge dismissed an application for a stay order, and the EC filed its appeal to the Court of Appeal.

Both the EC and Abu Hassan had filed separate appeals against the High Court decision.

Speaker Datuk Isa Ismail, had filed for a judicial review against an earlier EC decision, which accepted Abu Hassan's medical certificate for his absence from two meetings and declared that there was no vacancy for the seat and that Abu Hassan was still the assemblyman.

Datuk Kamaluddin Md Said, counsel for the EC, submitted that his client's appeal will be nugatory if a stay order is not granted. He said the court should order a stay pending the hearing of the appeal by the Court of Appeal.

Kamaluddin said about RM200,000 was spent in the election in Kota Siputeh in the last general election and it is difficult to predict how much money will be spent if a by-election is held.

"In the event the Court of Appeal reverses the High Court ruling, the public money will be wasted and cannot be recovered," he said.

He also said that if the EC proceeds to hold a by-election, there will be two assemblyman for the same seat.

"What if the Court of Appeal reverses the High Court order? Then, there are two competing assemblyman. The whole exercise is a waste," he said.

Sulaiman Abdullah, counsel for the speaker, said the EC's job is "purely to hold an election and not concerned about who the winner will be".

He said the EC is not spending its own money and "all it has been asked to do is its job".

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