PUTRAJAYA: Two Perak Barisan Nasional (BN) assemblymen can enter and participate in the state legislative assembly after the Federal Court dismissed the leave to appeal application brought by two PAS candidates in the 13th general election.
Jamil Dzulkarnain and Mohd Misbahul Munir Masduki sought to obtain leave to proceed with their appeal to the Federal Court to reinstate their civil suits against the assemblymen for Manong and Rungkup, Mohamad Kamil Shafie and Datuk Shahrul Zaman Yahya, which were thrown out by the High Court.
They had filed the originating summons at the High Court seeking to disqualify the assemblymen as members of the Perak state legislative assembly.
They brought the matter up to the Federal Court after losing their appeal at the Court of Appeal which was dismissed on Oct 16, last year.
A five-member Federal Court panel chaired by Chief Judge of Malaya Tan Sri Zulkifli Ahmad Makinudin unanimously dismissed their application for leave to appeal and ordered them to pay RM10,000 costs to the respondents.
Justice Zulkifli said the applicants had failed to satisfy the requirements under Section 96 of the Courts of Judicature Act 1964.
He held that the issue raised by the respondents that the BN assemblymen were not residents of Perak state, were factual in nature and the issue had been dealt with by the Court of Appeal.
He said that issues should have been put forward in the election petition and not by way of an originating summons, adding that there must be a finality to challenge election results.
In their originating summons, Jamil and Mohd Misbahul sought for a declaration that the assemblymen were not qualified to be members of the Perak Legislative Assembly by virtue of Article 30 of the Perak Constitution.
The Article states that a state assemblyman must be a resident of Perak at the time of election.
In their affidavit-in-support, both Jamil and Mohd Misbahul claimed that the assemblymen were residents of the Federal Territory.
They were also seeking for an injunction to pepetually restrain Mohamad Kamil and Shahrul Zaman from entering or being present or participating in any proceedings of the Perak state legislative assembly.
The assemblymen, in their statement of defence, had countered that they were residents of Perak and any attempt to disqualify elected representatives must be done through election petitions.
In the general election, Jamil was defeated by Mohamed Kamil for the Manong seat, by a 231-vote majority while Mohd Misbahul lost to Shahrul Zaman by a 613-vote majority.
On April 10, last year, the High Court in Kuala Lumpur allowed the BN assemblymen's application to strike out the two civil suits after ruling that it was improper for the PAS candidates to challenge the results of the general election by way of an originating summons.
Lawyers Chan Kok Keong and Robin Lim represented the PAS candidates while the BN assemblymen were represented by lawyers Datuk Hafarizam Harun and Choo Shi Jin. - Bernama
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