In delivering the landmark judgment, Justice David Wong Dak Wah ruled that the wrongful rejection of the nomination papers of the petitioner, Parti Keadilan Rakyat's Danny Anthony Andipai, had breached the petitioner's constitutional right to take part in the election and the written law relating to the conduct of the election.
In his 36-page judgment, Wong said the decision of the deputy director of the Sabah Election Commission to accept Andipai's nomination papers was final and could not be overruled by the returning officer, Bubudan OT Majalu, under the pretext that there was an objection during the objection period.
The deputy director was exercising a power provided for by law in making the decision, said the judge who also ruled that Bubudan's decision to uphold the objection was a wrong decision.
"I find certain aspects of the second repondent's (Bubudan's) conduct troubling and when taken in its totality, I can only conclude that the decision made was definitely not one which a reasonable tribunal would come to," he said.
He made the observation when allowing Andipai's petition to nullify the election result of the Pensiangan seat which Kurup won unopposed on nomination day on Feb 24.
Andipai had named Kurup and Bubudan as respondents. The judgement was to have been delivered on Sept 17 but was brought forward on Monday.
Outlining what happened on nomination day, Wong said Andipai arrived at the nomination centre at the Nabawan District Council Hall at about 9.35am to file his nomination papers for the seat.
After paying the deposit of RM15,000 he waited his turn but when he tried to submit his nomination papers, Bubudan refused to accept them on the ground that he was late in submitting them.
Andipai argued that it was not his fault but that of Bubudan and his staff and having failed to convince Bubudan, he said that he would be lodging a police report.
However, while the discussion was going on, one of the assistant returning officers, Osman Aganduk, sought the advice of the state election commission which gave the directive to accept the nomination papers.
Wong said the directive, which came from the deputy director of the Election Commission of Sabah, was relayed to Bubudan who then accepted Andipai's nomination papers which were endorsed with the acceptance time of 10.25am.
Objections closed at 11am and at about 1.25pm, Bubudan announced that Kurup was returned unopposed and declared him duly elected on the ground that the nomination papers of Andipai and an independent candidate, Saineh Usau, were delivered after 10am.
Wong said it was clear from the provisions of the Election Act that returning officers like Bubudan were subject to the control, direction and supervision of the Election Commission (EC).
On whether regulations 6(2) and 6 (2A) (a) of the 1981 regulations prohibited Bubudan or the EC to allow receipt of nomination papers after 10am on nomination day, he said: "If I were to adopt the position of the respondents, it may lead to a chaotic situation".
"Take the situation at the nomination centre in this case. The nomination centre was used to cater for two state constituencies and a parlimentary constituency, where only one counter was open for all the candidates for the three constituencies to submit their nomination papers.
"There were 12 citizens of the land who wanted to be candidates in the 12th general election turning up to deliver their papers on nomination day and that number had in fact caused some confusion and dispute resulting in this election petition.
"What if 20 citizens turned up on that nomination day? Are we to say that only those who are able to submit their nomination papers before 10am are entitled to exercise their constitutional rights to contest in the election?
"If that is the law, it will lead to abuse and chaos, abuse in that one party can get a group of people to submit their nomination papers early to ensure that his or her opponent will not get to the returning officers before 10am," he said.
The judge also said he found it unbelievable that Bubudan did not know, as he had claimed, that coupons bearing numbers were given to the condidates on that day.
"If what he says is true, this only reflects his own shortcoming as the returing officer who had full charge of the nomination centre," he added.
Andipai's leading counsel, Ansari Abdullah, who is also Sabah PKR chief, said he was happy "that justice is done".
"It was not a moral way of conducting election. Our candidate came at 9.35am and his paper was rejected despite the advice of the Election Commission.
Asked whether Andipai would be given priority to contest the seat should there be a by-election, Ansari said the party leadership would make the final decision on the matter.
Kurup, who is Deputy Rural and Regional Development Minister and Parti Bersatu Rakyat Sabah president, could not be reached for comment.
However, his leading counsel, Alex Decena, said Kurup could appeal the judgment.
KOTA KINABALU, March 13, 2009 (Bernama) -- The Federal Court here today overturned the Kota Kinabalu High Court's decision to nullify the election of Parti Bersatu Rakyat Sabah (PBRS) president Tan Sri Joseph Kurup to the Pensiangan parliamentary seat in the March 8 general election last year.
Kurup won the seat unopposed on nomination day after the returning officer rejected the nomination papers of Danny Anthony Andipai of Parti Keadilan Rakyat (PKR) and another candidate.
He was subsequently appointed Deputy Rural and Regional Development Minister. Andipai then petitioned to the election court to nullify the election result, naming Kurup and the returning officer, Bubudan OT Majalu, as respondents.
The Federal Court, comprising Appeal Court President Tan Sri Alauddin Mohd Sheriff, Chief Justice of Malaya Datuk Arifin Zakaria and Justice Datuk Nik Hashim Nik Abd Rahman heard submissions from both parties on Feb 12 and reserved judgment to today.
Nik Hashim delivered both judgments.
Nik Hashim held that there had not been any failure on the part of the Returning Officer (RO) to comply with the election laws. “Indeed, the RO had discharged his duties admirably well according to the law. Accordingly, we unanimously allow the appeal with costs here and in the court below. The deposit is to be returned to the appellant. The orders of the learned judge are set aside,” Nik Hashim ruled.
” The judge said that the requirement that nomination papers must be delivered between the hours of nine and ten in the morning was mandatory and “therefore, the RO was justified in upholding the objection and rejecting the respondent’s nomination papers for non-compliance with regulation 6(2)(b) of the Regulations”.
“While it is true that the Election Commission has the power of control and supervision over the conduct of the elections and that the RO is subject to the direction of the Election Commission under sections 5 and 4 of Act 19 respectively, nevertheless, such power and direction must be exercised according to the law,” added the judge.
“The directive of the deputy director of the Sabah Election Commission directing the RO to accept the respondent’s nomination papers outside the time frame was contrary to regulation 6(2)(b) and 6(2A0(a) of the Regulations and was thus unlawful.”
The court held that the learned judge of the Election Court was erroneous when he held that the power of the Election Commission overrides the Regulations.
“Nothing in the law provides for such a power. Besides, it is not within the purview of the Election Commission to effect any amendment to election regulations relating to the conduct of elections without due observation of section 16 of Act 19,” said the judge.
The court noted that although there were 12 citizens of the land who had wanted to contest the seat and only one counter was open at the nomination centre, nevertheless, “the responsibility for submitting the nomination papers to the RO within the time frame lies with the candidates”.
“No statutory duty is imposed on the RO to ensure that all nomination papers of all candidates present at the nomination centre must be accepted after the time frame,” the judge explained.
“So, in this case, the fault lies with the respondent for failing to deliver his nomination papers within the stipulated time to the RO.”
hamirdin says: This is a landmark judgement which can be weaponised by BN. It is very easy for BN to win an election unopposed. Just provide a single counter to process nomination papers, and cramp all nominations for a parliamentary seat as well as state assembly seats to just one counter. Next, process the nomination papers for BN candidates first, and take as long a time as you possibly can. By the time the turn for opposing candidates come, time is up. And yahoo, BN has won unopposed!
You want to test-fire this weapon at the 2 bukits and 1 batang by-elections?