Peh Swee Chin FCJ:

[1] We have earlier dismissed the application of the applicant for leave to appeal to the Federal Court and indicated we would give our grounds of judgment later. We now hereby do so. The applicant is hereafter referred to as the applicant for leave.

[2] The leave sought for but refused related to an intended appeal against a decision of the Court of Appeal dated 29 February 1996 which had upheld the High Court's decision in dismissing an application there by the applicant herein for leave there to apply for an order of certiorari to quash an earlier decision of an election judge. A brief account of the background of this matter would be necessary.

[3] The applicant was earlier elected at the last general election as a Member of Parliament for the constituency of Bukit Bintang but in an election petition filed subsequently by his unsuccessful opponent against the applicant for leave, the latter was disqualified and unseated by the election judge who, instead, declared that one Lee Chong Meng, the said opponent as duly elected Member of Parliament in place of the applicant for leave.

[4] The applicant for leave, being unable to appeal against such decision, did not appeal and instead, applied to the High Court for leave to apply for an order of certiorari to quash the decision of the election judge. That a final order of the election judge is not appealable has been long settled, vide the Federal Court decision of Tunku Abdullah v. Ali Amberaan, [1971] 1 MLJ 25 in which a number of prior and connected decisions were considered and discussed before such decision.

[5] The applicant for leave was not successful in the High Court in the matter of applying for leave to apply for an order of certiorari and neither was he successful in the Court of Appeal, hence the instant application before us.

[6] All the questions of law that were raised in the instant case were overshadowed by a predominant issue as whether an election judge was amenable to an order of certiorari. All the judges in the Court of Appeal were unanimous that an election judge was not so amenable. They all relied also on a brief and unreported oral judgment of the Supreme Court in Supreme Court Civil Appeal no 03-42~89 viz Ignatius Stephen Malanjum v. Election Judge, Sabah and Anor. in which it was held that the Court in the election judge sat was not an inferior Court against which an order of certiorari could be issued, after considering s 33(1) of the Election Offences Act 1954 which provided for any election peto be tried by the Chief Judge of the High Court or by a judge of the High Court to be nominated by the Chief Judge.

[7] We were asked to depart from the unreported decision by arguments that the election judge was erroneous for various reasons for unseating the applicant for leave and consequently a basic feature of the Federal Constitution was breached, the basic feature being that Members of Parliament must be duly elected, (in other words the present Member of Parliament in question was not), notwithstanding the ratio in the said unreported judgment which learned counsel for the applicant for leave described with candour was a "formidable obstacle" in the instant application. We thought it was an immovable one. We decided that we should not depart from the said ratio after due consideration for the following reasons.

[9]Inter alia, this is because s 33 of the said Act provides that an election petition should be heard by the Chief Judge of the High Court or a judge of the High Court nominated by the former; that any failure of