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2011 MarsdenLR 912
COURT OF APPEAL PUTRAJAYA
SURUHANJAYA PILIHAN RAYA MALAYSIA – Appellant
Versus
DATO DR ABD ISA ISMAIL – Respondent
[Civil Appeals No: W-01-386-2009 & W-02-2654-2009]
The court established that absence from two meetings in separate sessions does not constitute vacancy; true 'consecutive meetings' are strictly within the same session.
Headnote:(A) Constitution of the State of Kedah - Article 51 - Absence from Legislative Assembly meetings - A State Assembly member's seat shall become vacant for absence without leave from two consecutive meetings within the same session. The court ruled that the Assembly meetings on 19 April 2009 and 9 August 2009 were not consecutive, as the latter was deemed the first meeting of the second session. The prior judge's interpretation that they constituted two consecutive meetings was incorrect. The Assemblyman's seat remained valid. (Paras 9, 11, 12, 15)
(B) Prorogation of Legislative Assembly - Express requirements for prorogation must be met according to Article 53. The court emphasized the necessity of HRH's explicit action to prorogue, and any failure to formally prorogue would not allow implied or deemed prorogation that alters the session count. (Paras 12, 14)
Facts of the case:
The ADUN was absent from two different Assembly meetings, one on 19 April 2009 and another on 9 August 2009, and the Speaker declared the seat vacant based on these absences. The EC contested this decision citing constitutional provisions.
Findings of Court:
The court allowed the appeals by the EC and ADUN, affirming that the seat was not vacant and reinstating the ADUN's position, with the decision of the High Court set aside.
Issues: Whether the meetings constituted consecutive under the State Constitution and the validity of the claimed prorogation.
Ratio Decidendi: The phrase 'two consecutive meetings' refers specifically to meetings within the same session, and the failure to formally confirm prorogation precluded the deemed assumption of separate sessions. Also, explicit royal proclamations hold binding authority.
Result: Appeals allowed; the decision of the High Court is set aside, and the ADUN is reinstated.
| Table of Content |
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| 1. judicial review application background (Para 1 , 1 , 2 , 3 , 4) |
[1] The appellant in Civil Appeal No. W-01-386-2009 the Election Commission (hereinafter referred to as "the EC"), and the appellant in Civil Appeal No. W-02-2654-2009 Dato' Abu Hasan bin Sarif, the State Assemblyman for the Kota Siputeh constituency of Kedah (hereinafter referred to as "the ADUN") appeal against the decision of the learned High Court Judge made in an application for judicial review filed by Dato' Dr Abd Isa bin Ismail who is the Speaker of the Kedah State Legislative Assembly, the respondent in both appeals.
Background
[2] The ADUN had been absent for the meetings of the State Assembly on 19 April 2009 and on 9 August 2009. The ADUN had submitted to the respondent an explanation and medical certificate for the period 9 August 2009-10 August 2009 but the respondent rejected the medical certificate and the explanation. The respondent took the position that these absences from two consecutive meetings of the Assembly were without leave of the respondent as Speaker as required by art 51 of the Constitution of the State of Kedah ("the State Constitution") and that pursuant to the said article the Kota Siputeh State Seat had become vacant.
[3] Pursuant thereto, the respondent wrote a letter dated 17 August 2009 to the EC informing the EC that there was a vacancy in the Kota Siputeh State Seat. By a letter dated 1 September 2009 the EC replied amongst others that:
(a) the ADUN is still the ADUN for Kota Siputeh;
(b) the Seat is not vacant;
(c) the meetings which were not attended by the ADUN were not two consecutive meetings in one session within the meaning of art 51 of the State Constitution but two meetings in different sessions, and
(d) the EC accepted the medical certificate tendered as explanation for the ADUN's absence from the meeting on 9 August 2009.
[4] The EC's reply resulted in the application for judicial review. In the application for judicial review, as against the EC the respondent had sought for an order of certiorari to quash the EC's decision and/or action as per its letter dated 1 September 2009 and an order of mandamus to compel the EC to hold a by-election for the Kota Siputeh State Seat. Against the ADUN the respondent sought for orders which in effect are as follows:
(a) a writ of quo warranto to ask the ADUN to show cause and give confirmation how and under what basis/or authority that he is still the State Assemblyman for Kota Siputeh;
(b) a declaration that the ADUN is no longer the Kota Siputeh Assemblyman;
(c) a declaration that the Legislative Assembly of the State of Kedah for the constituency of Kota Siputeh (N3) is vacant; and
(d) a mandatory injunction preventing the ADUN and/or his agents from carrying out the responsibilities, function and duties as Kota Siputeh Assemblyman.
The learned judge agreed with the respondent and held that the Assembly's meetings on 19 April 2009 and on 9 August 2009 were two consecutive meetings and therefore the ADUN's absences constituted absences for two consecutive meetings in the same session of the Assembly. Applying art 51 of the State Constitution the learned judge granted the declaratory order that the ADUN was no longer the Kota Siputeh Assemblyman and that the Kota Siputeh State Seat was vacant. Consequently the learned judge granted an order of certiorari to quash the decision of the EC and an order of mandamus to compel the EC to issue a Writ of Election and to hold a by-election. Both the EC and the ADUN are dissatisfied with the decision of the learned judge. Hence these appeals. The learned judge however declined to issue a writ of quo warranto upon her finding that a writ of quo warranto cannot be issued against the ADUN on the ground that art 132(3)(b) of the Federal Constitution expressly excludes the office of a member of the Legislative Assembly of a State from the category of 'public services' as enumerated under art 132(1). The respondent has cross appealed ag
