UPDATED
By Debra ChongKUALA LUMPUR, Nov 12 – The High Court will decide on Monday if Kota Siputeh assemblyman Datuk Abu Hasan Sarif can keep his seat after he was expelled by the Kedah legislative assembly for being absent twice in a row without the speaker’s leave during legislative meetings
The Kedah speaker Datuk Dr Abd Isa Ismail is suing Abu Hasan for pretending he is still a state lawmaker.
Abd Isa is also challenging the Election Commision (EC) for its decision to keep Abu Hasan in the state seat despite being told there is a vacancy.
The speaker’s lawyer, Sulaiman Abdullah, brought the court’s attention to Article 51 of the Kedah Constitution, which states: “If any member of the Legislative Assembly is absent without leave of the Speaker for two consecutive meetings his seat shall become vacant.”
Abu Hasan was absent from two meetings, the first on April 19 and the next on August 9 this year, but did not ask permission from the speaker beforehand.
Sulaiman said that Abu Hasan does not deny the facts.
“Once these pre-conditions have been fulfilled, then by operation of law, that is, Article 51, the state seat automatically becomes vacant,” the former Bar Council president stressed.
Abu Hasan’s only dispute was over the issue of leave.
Sulaiman argued that leave was the sole right to be decided by the speaker and no one else.
He noted that the Umno man claimed he was sick when the second meeting was held on Aug 9 and had informed his boss, the state opposition leader Datuk Seri Diraja Mahdzir Khalid, through a mobile phone text message the same day
But Sulaiman pointed that Abu Hasan failed to send any message directly to the speaker about his condition.
Abd Isa was only informed three days later when a clerk of the legislative called Abu Hasan to find out why he was absent, the senior lawyer added, and received a medical certificate to back up his “sick” claim, which he claimed appears to be an “afterthought”.
Sulaiman also said Abu Hasan was reported to be involved in a public programme the very next day he was supposed to be home resting.
“No opposition member who has asked for leave has been denied it,” he countered after Abu Hasan’s lawyer, Datuk Hafarizam Harun, argued that the speaker who was from a rival political camp had acted in bad faith and had abused his position over the medical cert.
The legal adviser to Umno stressed that the PAS man wrote straight away to the EC to declare the seat vacant but has yet to reply formally if he had accepted Abu Hasan’s medical cert.
In his turn, senior federal lawyer from the Attorney General’s Chambers, Datuk Kamaludin Md Said, who is acting for the EC, stressed that the commission is the body that establishes a vacancy, but pointed out that the speaker should have referred Abu Hasan’s absenteeism to the legislature’s Rights and Privileges Committee before deciding that Kota Siputeh is vacant.
His arguments appeared to confuse even the judge , Datuk Alizatul Khair Osman Khairuddin, who peppered him with questions.
The agitated Kamaludin surprised the court when he suddenly snapped at a lawyer sitting near him to “Shut up!”
Alizatul recovered quickly and told the federal lawyer to “watch your language” reminding him he was in court and to “behave”.
Other lawyers for the speaker later told reporters that the Kedah suit was different from the Perak case and did not involve the question of which body holds the power to determine if there is a “vacancy” and provide the need for a by-election.
In Perak, the question was over who decides whether an assemblyman had resigned. The Federal Court had answered that the EC holds the power.
In Kedah, the assemblyman automatically loses his badge when he is absent without leave (AWOL) from two legislature meetings twice in a row.
Following the same line of reasoning, the EC had no right to step in and accept the assemblyman’s medical certificate, effectively overturning the speaker’s decision to tick Abu Hasan under the AWOL column.
Sulaiman argued that by doing so, the EC had acted beyond its authority and usurped the speaker’s right.
He noted that the EC seemed to be “carried away” by the top court’s decision in the Perak case and made the basic mistake in thinking it was the sole body to decide on anything to do with elections.
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