EC can function even with one member, affirms Court of Appeal

The Court of Appeal upheld the Shah Alam High Court’s ruling that EC chairman Azhar Azizan Harun on his own can announce the date of a by-election.

PUTRAJAYA: The Court of Appeal has ruled that even a single member could perform the functions of the Election Commission should there be vacancies.

A three-member bench chaired by Harminder Singh Dhaliwal today said the Federal Constitution should not be read in isolation on the EC’s composition.

“Article 114 (7) and 11th Schedule under Section 33 C of the constitution allows the EC to exist and function lawfully in the absence of all members,” he said in dismissing an appeal by voter Sabariah Mohd Shariff, who filed a suit last year to stop the Semenyih by-election.

The other members on the bench were Suraya Othman and Azizah Nawawi.

Harminder said the High Court did not commit any appealable error for the Court of Appeal to intervene.

“The decision of the High Court is thereby affirmed. We are also not ordering costs as this involved constitutional issues,” Harminder said.

Senior Federal Counsel Azizan Md Arshad appeared for the EC while Shaharudin Ali represented Sabariah.

On Feb 26, 2019, Shah Alam High Court judge SM Komathy dismissed Sabariah’s suit and held that EC chairman Azhar Azizan Harun on his own could announce the nomination and polling day for the by-election.

Komathy made the decision after referring to the case involving Permatang Pauh MP Nurul Izzah Anwar, in which the Court of Appeal decided the EC could continue functioning legally even with fewer than seven members.

In her suit, Sabariah, a voter in Semenyih, sought a declaration the EC’s meeting on Jan 18 chaired by Azhar in the absence of the deputy chairman and five members was null and void.

She said Azhar’s action was contrary to Article 114(1) of the constitution.

Sabariah said the EC could not conduct any by-election until all its members were appointed by the Yang di-Pertuan Agong in accordance with the constitution.

Othman Mahmood, Md Yusop Mansor, Abdul Aziz Khalidin, Sulaiman Narawi, K Bala Singam and Leo Chong Cheong had resigned as commissioners, but their resignations took effect from Jan 1.

On Jan 18, Azhar announced that the Semenyih state by-election would be held on March 2 and that nomination would be on Feb 16.

It was only on Feb 14 that the government announced the appointment of five new EC members – Azmi Sharom, Ramlan Ibrahim, Chin Phaik Yoong, Faisal S Hazis and Zoe Randhawa.

The Semenyih by-election was won by Barisan Nasional’s Zakaria Hanafi, who received 19,780 votes against the then Pakatan Harapan’s Muhammad Aiman Zainali, who obtained 17,866 votes.

Two other candidates – PSM’s Nik Aziz Afiq Abdul and independent Kuan Chee Hong – received 847 and 725 votes, respectively.