|The Pensiangan parliamentary seat, won by Barisan Nasional’s Joseph Kurup on March 8 general election, has been declared vacant by the Kota Kinabalu Election Court today.
The decision by High Court judge Justice David Wong Dak Wah could pave way for a by-election for this constituency which was won uncontested by Kurup.
However recent amendments to the election laws allow Kurup to appeal the decision at the Federal Court.
The petition was filed by PKR’s Danny Anthony Andipai, who was also a candidate for the seat.
He had named Kurup, returning officer, Bubudan OT Majalu, and the Election Commission as respondents.
Kurup won the seat uncontested on Feb 24 nomination day after Andipai’s candidacy was rejected after he had submitted his nomination papers after the 10am deadline.
On the nomination day, both Andipai and another candidate Saimeh Usau had missed the deadline and wanted to submit their papers after the expiry of the deadline.
They claimed they have been blocked on their way to the nomination centre.
They were subsequently allowed to do so, with Andipai’s nomination papers accepted at 10.25am and Saimeh’s forms five minutes later.
However, during the one-hour objection period from 11am, Kurup had raised objections to the late submissions and they were accepted by the returning officer. He then disqualified the two candidates from contesting.
Kurup is the president of the Parti Bersatu Rakyat Sabah president and was subsequently appointed deputy rural development minister after the general election. He is also a former Sabah deputy chief minister.
Justice Wong, in his 36-page judgment, said the rejection of Andipai’s nomination papers meant that the candidate’s constitutional right to take part in the election was breached.
Wong said – according to a Bernama report – the decision of the deputy director of the Sabah Election Commission to accept Andipai’s nomination papers was final although the candidate had exceeded the deadline.
Wong added that that decision to accept the nomination papers could not be overruled by the returning officer, Bubudan, 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 wrong.
“I find certain aspects of the second respondent’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.
Nomination day revisited
The judge also outlined on what had transpired on nomination day.
He said that 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.
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 Sabah Election Commission, 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 independent candidate Saineh were delivered after 10am.
By-election in 30 days, pending appeal
Meanwhile, Election Commission chief Abdul Rashid Abdul Rahman when contacted said the commission could only determine whether a by-election would be held only after Sept 22.
This was because the Election Court has a 14-day period to officially notify the EC on its decision, while Kurup also has two weeks to file an appeal to the Federal Court if he wants to.
“A by-election would be held (immediately) only if there is no appeal (from Kurup), so we have to wait until after the 14-day period to decide,” Abdul Rashid told Malaysiakini.
Under the election law, Kurup can file an appeal against the Election Court’s decision to the land’s highest court, the Federal Court, within 14 days.
The court will then have six months to hear and decide on the case. The Federal Court’s decision is final and cannot be challenged.
If there is no appeal from Kurup, a by-election will be called by the EC within 30 days.
Kurup told reporters that he has instructed his lawyers to file a stay of execution on today’s decision.
He added that he would also be appealing against the ruling.
“I’ve asked my lawyers to file for a stay of execution as soon as possible, even by today,” he said.
No longer a deputy minister
In a related matter, state BN chairperson and Sabah Chief Minister Musa Aman said he accepted the court decision and expressed confidence of retaining the seat in the event of an imminent by-election.
And in Putrajaya, Deputy Prime Minister Najib Abdul Razak was quoted in a Bernama report as saying that Kurup will have to relinquish his deputy ministerial post following the election court’s decision today.
Najib said that a deputy minister must come from among members of parliament, adding that Kurup can be reappointed as a deputy minister if he is re-elected in the by-election.