Defeated PKR candidate can appeal in any High Court in Malaya, court rules

PKR’s Khairuddin Abu Hassan lost to BN’s Ahmad Hamzah in the Jasin, Melaka, parliamentary seat in GE14 but is appealing against the results.

PUTRAJAYA: Khairuddin Abu Hassan, the defeated PKR candidate in the Jasin parliamentary seat in Malacca in last year’s general election, is entitled to file his action against the election results in the High Court in Kuala Lumpur, the Federal Court has ruled.

Chief Justice Tengku Maimun Tuan Mat said a five-member bench found that the petition filed in Kuala Lumpur was proper after having considered Articles 118 and 121 of the Federal Constitution.

Barisan Nasional candidate Ahmad Hamzah, who won the seat, had contended that Khairuddin should have filed his petition in Malacca, while Khairuddin took the position that he could file his complaint in any High Court in Malaya.

“Since Malacca and Kuala Lumpur are two of the territories comprising the States of Malaya, the High Court at Kuala Lumpur had the jurisdiction to determine the challenge to the election held in Jasin, Malacca,” Tengku Maimun said in written judgment released last week.

The other members on the bench were Chief Judge of Sabah and Sarawak David Wong Dak Wah, Alizatul Khair Osman Khairuddin and Rohana Yusuf.

On Feb 18, then chief justice Richard Malanjum, who led the five-member bench, ordered a retrial of Khairuddin’s election petition after the election judge in October ruled he should have filed his action in Malacca.

Tengku Maimun was appointed chief justice on May 3, replacing Malanjum, who went on mandatory retirement.

In the 24-page judgment, she said the determination of the jurisdictional issue rested on the interpretation of the words “the High Court having jurisdiction where the election was held”.

She said Ahmad claimed Khairuddin contravened Article 118 of the constitution and that the High Court in Kuala Lumpur had no jurisdiction to hear the election petition.

The provision in Article 118 merely stated that an election petition must be presented to the High Court having “jurisdiction where the election was held”, she said.

However, Article 121 (1) stated the judicial power of the federation was vested in two High Courts – Malaya, and Sabah and Sarawak.

“In our view, the word ‘High Court’ appearing in Article 118 is to be understood in the light of Article 121(1) of the Federal Constitution which establishes only two High Courts of co-ordinate jurisdiction,” she said.

She said section 3 of the Courts of Judicature Act 1964, however, provides for “local jurisdiction” to mean the territory comprised in the States of Malaya, namely Johor, Kedah, Kelantan, Melaka, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor, Terengganu and the Federal Territory of Kuala Lumpur.

Tengku Maimun said the High Court in Sabah and Sarawak consists of the territories comprised in both these states and the Federal Territory of Labuan.

“The different High Courts in Malaya and in Sabah and Sarawak are but branches of the respective High Courts. Therefore when Article 118 speaks of ‘jurisdiction’, we opine that it refers to the jurisdiction of the two High Courts as stipulated under Article 121 and not the local jurisdiction as defined in section 3 of the Courts of Judicature Act 1964,” she said.

Tengku Maimun said to accede to Ahmad’s argument would render Article 121 superfluous.

On June 12, election judge Abu Bakar Jais declared Ahmad the winner of the Jasin seat after a retrial but Khairuddin has filed an appeal in the apex court.

Abu Bakar said Khairuddin failed to prove that the discrepancies in the election forms raised by him had affected the final results on May 9, 2018.

Ahmad polled 26,560 votes against Khairuddin’s 26,341 while PAS candidate Abd Alim Shapie received 8,860 votes.