KUALA LUMPUR ( Nov 16 , 2009) : A fresh election will be held for the Kota Siputeh state seat in Kedah after it was declared vacated by the High Court here today.
 

Abu Hassan Sarif

Justice Datuk Alizatul Khair Osman Khairuddin ruled that the seat was vacated after incumbent assemblyman Datuk Abu Hassan Sarif absented from two state assembly meetings this year.
 
Following the High Court decision, Abu Hassan will be barred from attending the State Legislative Assembly sitting tomorrow.
 
In her decision, Justice Alizatul held that the Election Commission (EC) had acted irrationally and its decision that Abu Hassan was still the assemblyman for Kota Siputeh and the state seat was not vacant, ought to be quashed.
 
"While I agree that the EC has the power to determine the casual vacancy, I do not think the EC can override the power of the Speaker under Article 51 of the Kedah Constitution," she said in her decision delivered at 5.30pm.
 
"In my view, Article 51 sets out the conditions which render the seat to be vacant and the first respondent (Abu Hassan) had satisfied the conditions," said Justice Alizatul in allowing the judicial review filed by Kedah Speaker Datuk Dr Abdul Isa Ismail.
 
Abdul Isa, represented by leading counsel Sulaiman Abdullah, filed the judicial review on Oct 1, after the EC decided that there was no vacancy of the Kota Siputeh seat and that Abu Hassan was still the assemblyman.
 
Abdul Isa wanted the court to declare that Abu Hassan was no longer the assemblyman following his failure to attend two consecutive sittings of the state assembly on April 19 and Aug 9 this year, and that the seat was vacant.
 
In his application, Abdul Isa also sought an order for the EC to call for a by-election.
 
Article 51 of the Kedah State Constitution provides that if any member of the state legislative assembly is absent from the assembly without leave of the Speaker for two consecutive meetings, his seat shall become vacant.
 
In her decision today, Justice Alizatul said it was not disputed that Abu Hassan did not obtain leave from the Speaker to absent from two consecutive meetings, and had only issued his medical certificate to the Speaker on Aug 10, 2009.
 
"The Speaker has the power under Article 51 of the Kedah Constitution to grant leave and he did not act unreasonably in rejecting the medical certificate dated Aug 10, 2009 after knowing that the assemblyman had also attended a function on the same day," she said.
 
Justice Alizatul held that the EC had acted illegally in accepting the medical certificate issued by Abu Hassan as being the reason for his absence.
 
The EC had also made an irrational decision in deciding that Article 51 could only be invoked after the Speaker referred the matter to the Rights and Privileges Committee, she added.
 
"There is no mandatory provision imposed on the Speaker to do so because the decision to refer the matter to the committee or not is his discretion since leave matter is not a privilege conferred on an assemblyman," she reasoned.
 
Justice Alizatul also held that the EC had misconstrued the meaning of "two consecutive meetings" under Article 51 as two meetings of two separate sessions.
 
"I agreed with the applicant's counsel that the first respondent (Abu Hassan) was absent from two consecutive meetings in one uninterrupted session," she said.
 
The court today also fixed Friday to hear the EC's application for a stay of the by-election order.
 
Outside the court, Abu Hassan told reporters that he accepted the decision and would leave it to his counsel, Datuk Hafarizam Harun, to pursue with an appeal to the Court of Appeal.
 
EC was represented by senior federal counsel Datuk Kamaluddin Md Said. -- BERNAMA