Friday, 13 March 2009

Federal Court allows Kurup's appeal

The Federal Court in Kota Kinabalu Friday set aside an Election Court's decision on Sept 8, last year that nullified the election of Parti Bersatu Rakyat Sabah (PBRS) president Tan Sri Joseph Kurup to the Pensiangan parliamentary seat in the March 8, 2008 general elections.

This mean that Kurup now keep his Member of Parliament seat, no by-election for Pensiangan and that he stay as Federal Rural and Regional Development Deputy Minister.

Federal Court Judge Datuk Nik Hashim Nik Abdul Rahman, in delivering the Federal Court unanimous judgement reserved since Feb 12, this year, declared Kurup was duly elected to the parliamentary constituency of P182 Pensiangan.

Appeal Court President Tan Sri Alauddin Mohd Sheriff and Chief Justice of Malaya Datuk Arifin Zakaria who heard the appeal together with Nik Hashim, were not in court.

“There had not been any failure on the part of the returning officer to comply with the election laws (in declaring Kurup’s win uncontested after two other candidates nomination papers were rejected). Accodringly, we unanimously allow the appeal with cost here and the court below,” Nik Hashim said.

Kurup won the seat unopposed after the returning officer Bubudan OT Majalu rejected the nomination papers of Danny Anthony Andipai of Parti Keadilan Rakyat (PKR) and independent candidate Saineh Usau on nomination day Feb 24, 2008 on grounds that they were delivered late (after 10am).

Andipai filed an election petition on April 9, 2008 seeking a declaration that Kurup’s win was void. He named Kurup and Bubudan as the first and second
Respondents, respectively.

Andipai claimed that Bubudan planned to make available only one counter for the delivery of nomination papers for Pensiangan and the state seats of Sook and Nabawan.

The plan, Andipai’s claimed, was to prevent timely delivery of nomination papers from other candidates so that Kurup could be returned unopposed. Andipai was only able to submit his papers at 10.25am.

On Sept 8, 2008 Election Judge David Wong Dak Wah declared that Kurup’s victory was void as the rejection of Andipai and Usau nomination papers were a breach of their constitutional right to take part in the election.

Wong also held that a decision by the State Election Commission deputy director in directing the returning officer to accept Andpai’s nomination papers was final and could not be overturned during the objection period.

Nik Hashim said the Federal Court held that the requirement that the nomination papers must be delivered between 9am and 10am was mandatory.

He said the court held and the returning officer was justified in upholding the objection and rejecting Andipai’s nomination papers for non compliance with regulation 6(2)(b) of the Elections (Conduct of Elections) Regulations 1981.

The regulation says the nomination papers in triplicate must be delivered to the returning officer between 9am and 10am on nomination day by the candidate and seconder or by any two or any one of them.

Nik Hashim said that it was true, as the election judge decided, that the Election Commission had the power of control and supervision over the conduct of elections and that the returning officer was subjected to the direction of the Commission.

“Nevertheless, such power and direction must be exercised according to law,” he said.

In this case, the commission’s deputy director’s directive to the returning officer to accept Andipai’s nomination papers outside the time frame was contrary to regulation 6(2)(b) of the Regulation.

“The Election Judge was erroneous when he held that the power of the Election Commission overrides the Regulations. Nothing in the law provides for such power,” he said.

Nik Hashim further said the court held that it was not within the purview of the Election Commission to effect any amendment to election regulation relating to the conduct of elections.

The court also held that while it was true there were 12 people who wanted to be candidates and only one counter opened at the nomination centre, nevertheless, the responsibility for submitting the nomination papers to the returning officer within the time fame lies with the candidates.

“No statutory duty is imposed on the returning officer to ensure that all nomination papers of all candidates present at the nomination centre must be accepted but only to ensure that no nomination papers are to be accepted during the time frame (9am -10am),” Nik Hashim held.

He said the court was also unanimous in holding that in this case the fault lay with Andipai for failing to deliver his nomination papers within the stipulated time to the returning officer.

The court also held that Andipai had pleaded the facts and grounds of his petition but without specifying which provision of written law relating to the conduct of election had not been complied with by the returning officer.

“This failure is fatal. Parties are bound by their pleadings. Since the mandatory requirements stipulated by section 32(b) of the Election Offences Act 1954 had not been met, the learned judge ought to have dismissed the respondent’s (Andipai) petition outright,” Nik Hashim said.

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