Wednesday, September 17, 2008

SANGLANG KEMBALI KE SARANG PAS

Alhamdulillah Mahkamah Persekutuan telah pada 16/9/2008 memutuskan membenarkan rayuan Ustaz Hashim dan sekaligus mengisytiharkan beliau sebagai ADUN N.15 Sanglang, Perlis.

Persidangan di Mahkamah Persekutuan didengari oleh tiga orang Hakim iaitu Dato Allauddin Sharif, Dato Ariffin Zakaria dan Dato' Zulkifli Ahmad Makinuddin.

Pada pendengaran rayuan tersebut Ustaz Hashim diwakili oleh saya bersama-sama Sdr Zulmi bin Sabri ( peguam dari Perlis ) dan Sdr Aqbal Shiffuddin ( peguam dari Kedah ) . Pihak SPR pula diwakili oleh Dato' Kamaluddin Said dan Puan Rozi binti Bainon manakala calon UMNO diwakili oleh Encik Jegathesan Karuppiah.

Untuk berkongsi dengan para pembaca sekalian, berikut ini adalah hujah yang saya berikan sebagai peguamcara Ust Hashim di dalam rayuan di Mahkamah Persekutuan tersebut.

May it please Yang Amat Arif, Yang Arif , Yang Arif...

1. The central issue in this appeal is whether the learned election Judge erred in law when he failed to exercise his inherent power to declare the Appellant ( Hashim Jasin ) to be duly elected and ought to have been returned.

2. In his written judgment, the learned election judge acknowledged the following salient facts and evidence :-

a. There was a mistake committed by the first Respondent in totaling the votes under regulation 25D ( 5 ) of the Election ( Conduct of Election ) Regulation 1981 ;

b. As a result of such a mistake , the third Respondent was erroneously elected and unduly returned by the first Respondent i.e the agent of the second Respondent.

c. The second and first Respondent therefore failed to conduct the election in accordance with the principles laid down in such written law and that such non-compliance had affected the result of such election by virtue of section 32 ( b ) of the Election Offences Act 1954 ( Act 5 ).

3. It is clear that the mistake was not attributed to the appellant or to the third respondent who were the candidates of such election. On the other hand , the mistake , as stated by the learned Judge in his judgment , was committed by the guardian or custodian of the election process in this country namely the Second Respondent and its agent i.e the first Respondent.

4. Despite such a glaring mistake by the second and first Respondent , the learned election judge still refused to grant the Appellant a proper and effective remedy as prayed for in his election petition that he should have been elected and ought to have been duly returned.

5. In his judgment, the learned Judge refused to grant such a prayer simply because the relevant relief had been deleted from section 35 ( c ) of the Election Offences Act 1954.

6. At the trial, the learned Judge was persuaded by the Appellant’s counsels to exercise his inherent power or jurisdiction to grant such a prayer . Unfortunately the learned Judge declined to do so as he was of the view such a power was only procedural in nature and could only be resorted to in order to prevent injustice and abuse of the court’s process.

7. It is humbly submitted that the inherent power of the court was much wider than what was stated by the learned Judge.

8. It is respectfully submitted that the inherent jurisdiction of the court includes all the powers that are necessary to fulfill itself as a court of law ; to uphold , to protect , and to fulfill the judicial function of administering justice according to law in a regular , orderly and effective matter. [ see Pacific Centre Sdn Bhd v United Engineers ( Malaysia ) Bhd ( 1984 ) 2 MLJ 143 at page 91 of the Appellant’s Bundle of Authorities ]

See also :-

a. The Motor Emporium v Arumugam ( 1933 ) Vol 2 276 [ at page 119 of the Appellant’s Bundle of Authorities ] ;

b. Kumagai Gumi Co.Ltd v Zenecon-Kumagai Sdn Bhd & Ors and another application ( 1994 ) 2 MLJ 789 [ at page 164 & 165 of the Appellant’s Bundle of Authorities ]

9. It is further submitted that the source of the inherent power of the court is derived from its nature as court of law which the court may draw upon as necessary whenever it is just or equitable to do so , and in particular to ensure the observation of the due process of law, to prevent improper vexation or oppression , to do justice between the parties and to secure a fair trial between them. [ see Ngan Tuck Seng & Anor v Ngan Yin Hoi at page 22 of the Appellant’s Bundle of Authorities ]

10. It is submitted that the learned Judge , with due respect, clearly erred in law in holding that “ the inherent power or jurisdiction of the court is a procedural rule to prevent in justice or an abuse of the process of the court. The only mention of inherent jurisdiction in law is found in O. 92 r 4 of the Rules of High Court 1980” . Therein lies its limitations, viz. it cannot be a part of substantive law . To go beyond that would be tantamount to the court and encroaching into the power of the legislature, be it Parliament or the State Legislative Assemblies .” ( see at page 32 of Rekod Rayuan ).

11. His Lordship Edgar Joseph Jr FCJ in R Rama Chandran v The industrial Court of Malaysia & Anor ( 1997 ) 1 MLJ 145 held that O.92 r.4 is a unique rule of court and serves as a reminders and confirmation of inherent jurisdiction of the court. In other words , even without O.92 r 4 , the inherent power of the High Court would still be there..” [ see at page 23 of the Appellant’s Bundle of Authorities ].

12. In Ngan Tuck Seng & Anor v Ngan Yin Hoi ( 1999 ) 5 MLJ 509 His Lordship Clement Skinner JC ( as he then was ) quoted with an approval of the abovesaid pronouncement of Edgar Joseph Jr FCJ in R Rama Chandran v The industrial Court of Malaysia & Anor ( 1997 ) 1 MLJ 145 and held as follows :-

“ It is clear from the decision in R Rama Chandran that “ inherent jurisdiction , being part of common law powers enjoyed and possessed by a High Court , of which a companies court is one, is a separate and distinct jurisdiction enjoyed by a court independent of any enabling statute or legislation… Accordingly I have no hesitation in holding that a companies court does exercise inherent jurisdiction . [ see at page 23 of Appellant’s Bundle of Authorities ].

13. It is humbly submitted that the learned Judge should have held that the election court , like a companies court, also possessed and enjoyed an inherent jurisdiction to prevent improper vexation or oppression to the appellant , to do justice and to secure a fair trial in this case.

14. As a matter of fact, the election courts , prior to this case, did exercise inherent jurisdiction when there was an absence of express provisions in the electoral laws. Unfortunately the learned Judge , with due respect, failed to consider this vital point in his judgment. Such a failure , we humbly submit, warrants this appellate interference .

15. The Appellant concedes that by virtue of the abolishment of section 35 ( c ) of the Election Offences Act, the election court seemed to have no express power or jurisdiction to grant a prayer declaring any candidate of any election to be duly elected and returned.

16. It is submitted that when the Parliament abolished the court’s express power to declare any candidate as a winner in any election , the abolishment was for a specific purpose only i.e the election court should not assume a role of the voters in any election process.

17. In other words the deletion of section 35 ( c ) of the Election Offences Act 1954 sought to prevent the election court from abusing its power i.e by declaring any candidate as a winner despite the fact such a candidate was rejected by the voters ( having lost in the election ).

18. But the factual matrix in this case was different. The voters of Sanglang had spoken. They gave their majority votes to the Appellant . In other words the voters wanted the Appellant , and not the third Respondent , to represent them as their rightful representative in the State Legislative Assembly. As a custodian of the democratic process , the Second Respondent should have respected the voters’ choice . The election court in turn must ensure that such choice was duly guaranteed and jealously protected at all costs.

19. It is submitted that in the absence of any express power for the court to grant a declaration that the Appellant to be the rightful winner of the election, the election judge ought to have resorted to his inherent jurisdiction or power to declare the appellant as duly elected and ought to have been duly returned.

20. By exercising such a power, we humbly submit that the learned Judge was not assuming the role of the voters. In fact by exercising such a power the learned Judge would have endorsed and respected the rights of the Sanglang voters who had elected the Appellant as their rightful representative thus strengthening the democratic process. [ see the case of Election Commission of Malaysia v Abdul Fatah bin Hj Haron ( 1987 ) 2 MLJ 716 on the role of the Election Commission at page 126 of the Appellant’s Bundle of Authorities ]

21. In Re West Suffolk County Council ( East Ward ) Election ( 1964 ) 108 Sol Jo 604, DC , where a candidate was disqualified and admitted it , the court did not order the case to be stated but decided to hear the case and declared the election void, notwithstanding that there was no provision for this more direct court in the Election Petition Rules 1960. [ see at page 2 of the Appellant’s Bundle of Authorities ] .


22. It is humbly submitted that the judgment of the learned election judge , with the greatest respect , represents the voice of the strict constructionist. Such a judgment as illuminatingly stated by Lord Denning in Nothman v Barnet London Borough Council ( 1978 ) 1 WLR 220 “ is the voice of those who go by the letter . It is the voice who adopt the strict literal and grammatical construction of the words , heedless of the consequences… In all cases now in the interpretation of statutes we adopt such a construction as will “promote the general legislative purpose “ underlying the provision. It is no longer necessary for the judges to wring their hands and say “ There is nothing we can do about it.” Whenever the strict interpretation of a statute gives rises to an absurd and unjust situation, the judges can and should use their good sense to remedy it, by reading words, if necessary- so as to do what Parliament would have done , had they had the situation in mind.” [ see at page 176 of the Appellant’s Bundle of Authorities ]

23. It is interesting to note here that the learned Judge had not made any finding as to the validity of the election. In other words as far as the election of Sanglang constituency is concerned, such an election was not void. As no declaration by the election court that such an election was void, the court should have, in turn , held that there was no necessity to have a by election in this case.

24. Thus we humbly submit that the learned election judge clearly erred in law by holding that there was a necessity to have a by election in Sanglang constituency. A by election presupposes that the earlier election was void which did not happen in this case.

25. We respectfully submit that as there was a glaring mistake of law committed by the first and Second Respondent thus prejudicing the Appellant’s right to be the rightful winner of the election , the election judge should have granted the appellant an effective remedy in this case. It must be borne in mind that in the present suit there was a rational nexus between the relief prayed for by the Appellant in his election petition and the dispute is seeks to resolve. [ see Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union ( 1995 ) 2 AMR 1601 at page 79 of the Appellant’s Bundle of Authorities ]

26. And the effective remedy in this case must be one and only namely the Appellant must be duly elected and ought to have been returned as the state assembleyman of Sanglang constituency.

9 comments:

Nur Najihah Muhaimin said...

salam ziarah pak cik hanipa!
;))

aNaK BaPaK said...

tahniah...!!!

md zaini said...

syukron, Allahuakbar!! you are the best lawyer.

Pak Long, Alor Star

md zaini said...

syukron, Allahuakbar!! you are the best lawyer.

Pak Long, Alor Star

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