KUALA LUMPUR: The election judge has the inherent jurisdiction to dismiss or strike out an election petition if it is defective, said High Court Justice Azahar Mohamed on Tuesday.
As such, he said, the High Court would go ahead and hear on Wednesday the merit of Federal Territory PKR chief Datuk Mohd Zaid Ibrahim's petition to have the Hulu Selangor election results nullified on grounds of corrupt practice.
Justice Azahar is sitting as the election judge.
On Monday, Zaid's lawyer Azhar Azizan Harun raised a preliminary objection saying that an election judge was not vested with the power to dispose off the petition by way of a striking-out application or preliminary objection.
Hulu Selangor MP P.Kamalanathan filed a notice of motion on July 1, asking that Zaid’s election petition be struck out on the grounds that it disclosed no reasonable cause of action.
Election Commission (EC), named as a respondent in the petition, is raising a preliminary objection on grounds that Zaid did not provide sufficient material or facts over alleged corrupt practice.
Azhar contended that Election Offences Act 1954 also require a disposal of petition only by way of a trial - which shall be completed within six months.
He said the election judge also had specific duties to perform such as determination to be made at the conclusion of trial, to certify it and make a report in writing whether there was any corrupt practice.
"It is respectfully submitted that the ordinary powers of a High Court judge cannot be exercised by an election judge without any constitutional basis. In this case, there is no such basis," he added.
Zaid co-counsel Malik Imtiaz Sarwar argued that Kamalanathan should have filed a notice of motion to dismiss the petition and not to have it struck off.
Kamalanathan's lawyer Firoz Hussein Ahmad Jamaluddin argued that Zaid's objection is wholly baseless and entirely without merit.
He argued that many election petition cases have been disposed off by way of striking out or by way of preliminary objection without going to full trial.
"It is clear that the Federal Court had in many occasions held that the election judge has the jurisdiction to strike out the petition. It is not unique. Your lordship is bound by these decisions," he said.
Firoz argued that an election petition would be struck out if there was failure to strictly comply with the requirements of the Election Offences Act 1954 and/or the Election Petition Rules 1954.
He argued that the Federal Court had also interpreted the word 'trial' in relation to the petition in a broader way to include hearing of any issue raised by way of preliminary objections and striking out.
SFC Azizan Md Arshad, who acted for EC adopted similar arguments as Firoz, adding that election judge had additional powers of High Court to deal with the election petition.
Zaid had named Kamalanathan, Hulu Selangor parliamentary constituency returning officer Nor Hisham Ahmad Dahlan and the EC as respondents in his petition to strike out the results of the by-election held on April 25.
Barisan Nasional’s Kamalanathan defeated Zaid by a 1,725-vote majority.
In his petition filed at the Shah Alam High Court on May 24, Zaid, 59, contended that there were acts of corrupt practice in the form of bribery in the by-election.
The former Cabinet minister, who wants a declaration that Kamalanathan was not duly elected as the Hulu Selangor MP, is seeking determination and directions under Section 36 of the Election Offences Act, costs and any further relief deemed fit by the court.
Kamalanathan said Zaid had failed to identify the purported persons to whom the purported promises were made and/or failed to give particulars to show that they were registered voters of the Hulu Selangor parliamentary constituency and how the alleged bribery had so extensively prevailed that it was reasonably supposed to have affected the election results.
He added that it was scandalous, vexatious and might embarrass the fair trial of the action and/or was an abuse of the court process.
More to come:
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