Kota Siputeh Seat Is Not Vacant, Federal Court Rules

PUTRAJAYA: The Federal Court here on Monday ruled that the Kota Siputeh state seat in Kedah was not vacant as its assemblyman Datuk Abu Hasan Sarif was not absent for two consecutive meetings of the Kedah legislative assembly in 2009.

In a 4-1 majority decision, Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin declared that the two days – April 19 and Aug 9, 2009 – in which Abu Hasan did not attend the state assembly without leave from the Kedah Assembly Speaker, were not consecutive meetings in a session.

He said Abu Hasan was absent on the last meeting in the first session and the first meeting of the second session.

"Therefore, the last meeting of the preceding session and the first meeting of the new session were not consecutive," he said.

Justice Zulkefli said there was no provision in the Kedah Constitution requiring the preceding session to be prorogued by the Sultan of Kedah before commencement of a new session.

Justice Zulkefli said the meaning of "meeting" as stated in Article 51 of the Kedah Constitution(the provision which states that the seat of a legislative assembly member would become vacant if they were absent from the Assembly without the speaker's leave for two consecutive meetings) must be construed to mean one meeting following an earlier meeting in uninterrupted succession during the same session.

He said all documentation, even that of the speaker himself, showed that the meeting on Aug 9, 2009 was the first meeting of the second session.

Kedah Assembly Speaker Datuk Dr Abdul Isa Ismail had contended that the two days in which Abu Hasan failed to attend constituted two consecutive meetings as the Sultan of Kedah did not prorogue the assembly, the first session continued and the meeting on Aug 9, 2009 was in actual fact the sixth meeting of the first session.

In a majority judgment, Justice Zulkefli and Federal Court judges Datuk Hashim Mohd Yusoff, Datuk Ahmad Maarop and Datin Paduka Zaleha Zahari dismissed Dr Abdul Isa's appeal to set aside a Court of Appeal's decision overruling the High court's decision to declare the Kota Siputeh seat vacant.

Justice Datuk Zainun Ali dissented in her ruling by saying that the meaning of "two consecutive meetings" in the Kedah Constitution should be given a literal interpretation to mean one meeting following the other in succession, adding that it was not relevant whether both the meetings were in the same session or otherwise.

Following the majority judgment, Abu Hasan remains as assemblyman for Kota Siputeh.

Abdul Isa filed a judicial review to challenge the Election Commission's (EC) decision not to hold a by-election after he (Abdul Isa) declared Abu Hasan's seat vacant.

The Kuala Lumpur High Court had on Nov 16 2009 allowed Abdul Isa's judicial review to declare Abu Hassan no longer assemblyman for the seat and ordered the EC to hold a by-election but the decision was reversed by the Court of Appeal on Aug 18, 2011.

- Bernama