Well, we are not happy with Election Petitions being struck out by reason of preliminary objections, and not after full trial on the merits - sadly, this also happened again with Nurul Izzah's case
We are unhappy with the excessive cost being ordered against people who file election petitions, and in Nurul Izzah's case, the cost awarded was also excessive - RM40.000, and this was not after full hearing but based on preliminary objections.
It would have been good if good MPs/ADUNs, like Nurul Izzah would have not just sat happily seeing the court do exactly the same things that we are critical about.
We do not know all the TEN(10) 'preliminary objections' were - but Nurul Izzah could have urged the court to order the petitioner to cure the procedural non-compliance, and allow the matter to be heard on the merits. Some of these preliminary objections have been have matters of service/delivery of documents, being filed by a law firm not a lawyer, etc... To dismiss an Election Petition or any other matter based on such technicalities is absurd, a denial of the right to be heard on the merits - a miscarriage of justice.
No use coming out later and saying the law need to be reformed - you already used those absurd technical objections - (1) service was done by a law firm...(2) out of time? (3) .... Stand by your principles...Now, we will never know if that Election Petition if heard on the merits would have been successful or not - it was knocked out based on technicalities ... and, I say that justice has not been served - the right to a fair trial has been denied that petitioner... and worse, any ordinary person would have been on the way to become bankrupt if forced to pay RM40,000-00. Nurul Izzah can still come out publicly and say no need to pay that RM40,000 - just pay me say RM500 - Will she do it?
When the court awarded such high costs, Nurul Izzah should have objected and said that as a matter of principle ask the judge to limit cost to a nominal sum - maybe RM500. High cost awards only deter a person from coming to court - it certainly has a greater impact of the poor and those with middle income. 40 months wages for a person earning RM1,000 is absurd - remembering that the right to file Election petition is also with the ordinary voter.
Nurul Izzah, to keep silent and accept matters like this, when decisions go in your favour is unacceptable if one believes in upholding the cause of justice. She should have instructed her lawyers her preference to win after a full hearing on the merits - rather than on some preliminary objections. She should have set the example.
Likewise, the quantum of cost...
See also earlier post:-
Election Petitions - Why are courts shutting people from access to justice? Exessive Cost and denial of trial on merits
Nurul Izzah remains Lembah Pantai MP
 |
The
Election Court in Kuala Lumpur has today struck out the election
petition filed by Lembah Pantai Umno Youth chief Mohamad Sazali Kamilan
against incumbent parliamentarian Nurul Izzah Anwar.
Election
judge Zabariah Mohd Yusof allowed seven out of 10 of the preliminary
objections made by Nurul Izzah's counsel Edmund Bon.
She ordered Sazali, who is also a voter in the constituency, to pay costs of RM40,000.
Justice Zabariah said the petition had been served on Nurul Izzah by the law firm Raja Reza, whereas it should have been served by either Sazali or a lawyer representing Sazali and it cannot be the firm.
“Hence the election petition is liable to be struck out based on this ground alone,” she said.
She also said the petitioner had also failed to comply with the requirements of Section 38 (1) (a) of the Election Offences Act 1954 (EOA) by failing to present the petition within the stipulated time of 28 days.
“On this, the preliminary objection is allowed,” she said.
The election judge also noted that Sazali had sought a relief that the BN candidate Raja Nong Chik Raja Zainal Abidin be declared as the winner of the seat.
“However, the election judge can no longer declare another candidate to be the winner of the seat as Section 35 of the EOA had been repealed.
“Hence the prayer sought by Sazali by cannot be sustained and is bad in law,” ruled Justice Zabariah.
In 1996 in the case of Dr Lee Chong Meng versus Wee Choo Keong for the Bukit Bintang parliamentary seat, election judge and former chief justice Ahmad Fairus Sheikh Abdul Halim had ruled that Wee’s victory was null and void due to him being asked to pay a RM7,000 for contempt.
As a result of this, Lee was declared the winner of the Bukit Bintang parliamentary seat.
Failed to plead material facts
Justice Zabariah also held that the petitioner had failed to provide sufficient facts to support that Nurul Izzah’s allegation over the Bukit Kiara land deal, on which Sazali had complained, had influenced voters not to vote for Raja Nong Chik.
“Sazali has failed to plead material facts to show that there is a cause of action against Nurul Izzah,” she ruled in allowing the preliminary objection
Raja Nong Chik had lodged a police report over the allegation which was also carried in Malaysiakini, and is also a subject to a defamation suit by the former federal territories minister against the news portal and Nurul Izzah.
Nurul Izzah was represented by Edmund Bon, while lawyer M Reza Hassan and Shahril Abdul Razak appeared for Sazali.
Despite the victory, both Bon and Nurul Izzah urged that amendments to the EOA be made as the law had been in existence since 1954.
Bon said the portion saying the petition cannot be served by the lawyer's firm but only the petitioner or the advocate of the petitioner (a persion), is being used all over the country.
“Complaints on election petitions have been made stating that the laws have been archaic since 1954 and the attorney-general has a duty to update the law. I have no qualms in urging amendments be made to the existing law to ensure clean and fair elections,” he said.
“It must be made up to date. If there is injustice to the petitioner, it's because the rules have been designed not to hear the voice of the people. It cuts both ways,” he said.
On the allegation of the ballot boxes had been tampered with, Bon said there is no evidence before the court to support the claim.
Nurul said she is thankful for the decision but there has to be a continuous effort to reform the existing law to ensure there is clean and fair elections.
“There should be rational avenues to argue the matter based on the provisions of the law. We will continue with efforts to reform the existing law to ensure clean and fair elections as the existing 1954 laws cannot be enforced till today and have to keep up with the times,” she said.
Nurul Izzah retained Lembah Pantai after fighting off a strong challenge from former federal territories minister Raja Nong Chik Zainal Abidin at the May 5 general election.
She polled 31,008 votes against Raja Nong Chik's 29,161, winning the seat with a majority of 1,847.
The PKR vice-president wrested the seat from then-minister for women, family and community development Shahrizat Abdul Jalil in 2008.
In the wake of his defeat, Raja Nong Chik has filed a defamation suit against Nurul Izzah and Malaysiakini over the incumbent MP's remarks made during the electoral campaign. - Malaysiakini, 1/8/2013,Nurul Izzah remains Lembah Pantai MP
Election
judge Zabariah Mohd Yusof allowed seven out of 10 of the preliminary
objections made by Nurul Izzah's counsel Edmund Bon.She ordered Sazali, who is also a voter in the constituency, to pay costs of RM40,000.
Justice Zabariah said the petition had been served on Nurul Izzah by the law firm Raja Reza, whereas it should have been served by either Sazali or a lawyer representing Sazali and it cannot be the firm.
“Hence the election petition is liable to be struck out based on this ground alone,” she said.
She also said the petitioner had also failed to comply with the requirements of Section 38 (1) (a) of the Election Offences Act 1954 (EOA) by failing to present the petition within the stipulated time of 28 days.
“On this, the preliminary objection is allowed,” she said.
The election judge also noted that Sazali had sought a relief that the BN candidate Raja Nong Chik Raja Zainal Abidin be declared as the winner of the seat.
“However, the election judge can no longer declare another candidate to be the winner of the seat as Section 35 of the EOA had been repealed.
“Hence the prayer sought by Sazali by cannot be sustained and is bad in law,” ruled Justice Zabariah.
In 1996 in the case of Dr Lee Chong Meng versus Wee Choo Keong for the Bukit Bintang parliamentary seat, election judge and former chief justice Ahmad Fairus Sheikh Abdul Halim had ruled that Wee’s victory was null and void due to him being asked to pay a RM7,000 for contempt.
As a result of this, Lee was declared the winner of the Bukit Bintang parliamentary seat.
Failed to plead material facts
Justice Zabariah also held that the petitioner had failed to provide sufficient facts to support that Nurul Izzah’s allegation over the Bukit Kiara land deal, on which Sazali had complained, had influenced voters not to vote for Raja Nong Chik.
“Sazali has failed to plead material facts to show that there is a cause of action against Nurul Izzah,” she ruled in allowing the preliminary objection
Raja Nong Chik had lodged a police report over the allegation which was also carried in Malaysiakini, and is also a subject to a defamation suit by the former federal territories minister against the news portal and Nurul Izzah.
Nurul Izzah was represented by Edmund Bon, while lawyer M Reza Hassan and Shahril Abdul Razak appeared for Sazali.
Despite the victory, both Bon and Nurul Izzah urged that amendments to the EOA be made as the law had been in existence since 1954.
Bon said the portion saying the petition cannot be served by the lawyer's firm but only the petitioner or the advocate of the petitioner (a persion), is being used all over the country.
“Complaints on election petitions have been made stating that the laws have been archaic since 1954 and the attorney-general has a duty to update the law. I have no qualms in urging amendments be made to the existing law to ensure clean and fair elections,” he said.
“It must be made up to date. If there is injustice to the petitioner, it's because the rules have been designed not to hear the voice of the people. It cuts both ways,” he said.
On the allegation of the ballot boxes had been tampered with, Bon said there is no evidence before the court to support the claim.
Nurul said she is thankful for the decision but there has to be a continuous effort to reform the existing law to ensure there is clean and fair elections.
“There should be rational avenues to argue the matter based on the provisions of the law. We will continue with efforts to reform the existing law to ensure clean and fair elections as the existing 1954 laws cannot be enforced till today and have to keep up with the times,” she said.
Nurul Izzah retained Lembah Pantai after fighting off a strong challenge from former federal territories minister Raja Nong Chik Zainal Abidin at the May 5 general election.
She polled 31,008 votes against Raja Nong Chik's 29,161, winning the seat with a majority of 1,847.
The PKR vice-president wrested the seat from then-minister for women, family and community development Shahrizat Abdul Jalil in 2008.
In the wake of his defeat, Raja Nong Chik has filed a defamation suit against Nurul Izzah and Malaysiakini over the incumbent MP's remarks made during the electoral campaign. - Malaysiakini, 1/8/2013,Nurul Izzah remains Lembah Pantai MP
Nurul Izzah remains Lembah Pantai MP after Election Court strikes out election petition
01 Aug 2013 10:02am
Nurul Izzah Anwar
KUALA LUMPUR: Nurul Izzah Anwar remains the MP for Lembah Pantai after the Election Court in Kuala Lumpur struck out the election petition filed by Lembah Pantai Umno division youth chief Mohamad Sazali Kamilan.
Election judge Zabariah Mohd Yusof allowed most of the preliminary objections made by Nurul Izzah’s counsel Edmund Bon and ordered Sazali to pay costs of RM40,000, Malaysiakini reported.
Nurul Izzah retained Lembah Pantai after getting 31,008 votes against former Federal Territories Minister Raja Nong Chik’s 29,161.
Mohamad Sazali had named PKR candidate for the Lembah Pantai seat, Nurul Izzah Anwar, the Lembah Pantai returning officer Rolan Abd Rahman and the EC as respondents.
Mohamad Sazali claimed that last May 4, Nurul Izzah had disturbed voters in the area by telling them not to vote for the BN candidate, Datuk Raja Nong Chik, by giving false statements on the Malaysiakini website.
He also claimed that Rolan failed to report to the EC that two ballot boxes for Lembah Pantai were damaged, purportedly by a group of PKR supporters who obstructed the vehicle carrying the boxes to to the vote tallying centre.- ABN News. 1/8/2013, Nurul Izzah remains Lembah Pantai MP after Election Court strikes out election petition
Court strikes out Lembah Pantai election petition
The court on Thursday allowed the preliminary objection raised by its MP Nurul Izzan Anwar (pix) in dismissing the petition filed by Mohamad Sazali Kamilan.
The court also awarded RM40,000 in costs to Nurul Izzah. - Star, 1/8/2013, Court strikes out Lembah Pantai election petition
Even if Nurul Izzah requested the judge to award low cost against the petitioner for technical failures, the judge might not be able to because the AG Chambers might have them guidelines!Compare to the cost of RM 150,000 awarded against the PAS candidate in his petition against the BN candidate and EC, RM 40,000 for Nurul I is reasonable!
ReplyDeleteWell, in Malaysia it is ONLY the judge who has the power and discretion to decide on what the cost is - The lawyers(including the government lawyers and the Attorney General) have no power to influence the Judge.
ReplyDeleteSo, there can be no 'guidelines or suggestions' from the AG or the Head of the Malaysian judiciary. It is only depends on the Judge(or Judicial Commissioners)
Tit for Tat - In another court the Opposition candidate had to pay high cost, so it is OK for the Opposition candidate(Nurul in this case) to be OK and happy when the court also orders high cost (or slightly lower)
ReplyDeleteHow many Malaysians can afford to pay this king of money?
These HIGH cost in effect is closing the doors to many Malaysians - only the RICH can afford to claim rights through Malaysian courts or pay such HIGH costs. This is so wrong.