KUALA LUMPUR: The High Court has no jurisdiction to decide on a civil suit over election disputes, a Senior Federal Counsel argued on Monday.
Counsel Amarjeet Singh submitted that the lawsuit filed by three politicial parties, three unsuccessful candidates and two voters against the Election Commission (EC) was clearly an abuse of the court's process.
The three politicial parties - PAS, DAP, PKR and the three unsuccessful candidates in the recently held 13th general election namely Dzulkefly Ahmad, M. Manogaran, Saifuddin Nasution Ismail and two voters, Arifin Abd Rahman and R.Abbo filed the suit on July 15 last year.
They sued Election Commission chairman Tan Sri Abdul Aziz Mohd Yusof, his then deputy Datuk Wan Ahmad Wan Omar and five other members of the commission.
Among others, they want a declaration that the results announced by EC at the conclusion of GE13 for all 222 parliamentary seats to be declared null and void.
According to Amarjeet, Article 118 of the Federal Constitution provides that the only method to challenge the election results is by way of an election petition presented to the High Court having jurisdiction where the election was held.
He said that the suit was in essence an action to challenge the election results due to the EC allegedly failing to carry out its constitutional duties and obligations to properly conduct the 13th general election as well as alleged electoral fraud caused by the misuse of indelible ink.
"The power to declare an election void where the conduct of the election is in issue is exclusively in the jurisdiction of an Election judge appointed under the Election Offences Act 1954 and not with any judge of the High Court exercising original civil jurisdiction under the Courts of Judicature Act 1964," he argued in asking the court to strike out the suit.
He said that the election petition is to be tried by an Election judge who is either the Chief Judge or a judge of the High Court specially appointed by the Chief Judge of the High Court.
Amarjeet submitted that any exercise of power by the High Court to declare an election result null and void is an usurpation (wrongful execise of authority belonging to another) and in violation of Article 118 of the Federal Constitution.
He argued that the claim over conspiracy, fraud, breach of statutory duties and misfeasance in public office is misconceived in law as these actions did not exist in relation to election disputes in the common law.
"The jurisdiction was created when the Legislative Assembly with its own consent by legislation put the jurisdiction in the hands of an independent tribunal or court to determine disputed elections," he argued.
Amarjeet also said that High Court has no juridiction in removing members of the EC from their office.
He said that the power of removing the members of the EC was vested with the Yang di-Pertuan Agong after a tribunal set up for that purpose has made recommendations for their removal.
Lawyer Tommy Thomas, who appeared for the plaintiffs, however, submitted that it was not an appropriate case for the suit to be summarily disposed off.
Thomas argued that constitutional issues have to be determined by a trial court after hearing evidence from witnesses.
High Court judge Justice Rosnaini Saub set Feb 7 to decide the striking out application by the EC.
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