The court ruled that the balance of convenience favors allowing the electoral process to proceed without injunction, as the plaintiff failed to demonstrate irreparable harm and lacked a substantive cause of action.

JUDGMENT

Roz Mawar Rozain JC:

Enclosure 6: The Plaintiff's Application For An Interim Injunction Pending The Disposal Of His Suit

The Plaintiff's Objective

[1] He had cited the President of Parti Pribumi Bersatu Malaysia (BERSATU), the Secretary General of BERSATU, the Speaker of the Kelantan State Legislative Assembly (the Speaker), and the Election Commission Malaysia (EC) as Defendants. In essence, vide the OS:

1. The Plaintiff is challenging the declaration of a casual vacancy for the N43 Nenggiri seat.

2. He is seeking declarations that he is still a member of BERSATU and still holds the N43 Nenggiri seat.

3. The Plaintiff requests injunctive relief to prevent the EC from conducting a by-election for the N43 Nenggiri seat.

4. He argues that the anti-hopping law provisions do not apply to his situation, which would otherwise require him to vacate his seat.

[2] While the Plaintiff raises various legal arguments about the validity of BERSATU's constitutional amendments (particularly cls 10.4-10.6, which he contends are ultra vires the Federal Constitution) and the process of his termination from the party (allegedly executed without due process and in violation of natural justice principles), these appear to be means to the ultimate end of retaining his elected position as the State Assemblyman for N43 Nenggiri. The preservation of this seat to him seems to be the core objective driving his legal action.

[3] The day after the filing of his OS, on 25 June 2024, the Plaintiff applied to this Court for an interim injunction ex-parte (Enclosure 6). The Plaintiff brought encl 6 before this Court on 26 June 2024 and the Court had ordered the application to be served on all the Defendants to enable arguments to be heard inter-partes. The Plaintiff sought for an ad-interim injunction pending the disposal of the inter-partes arguments which this Court repeated its stand that even for an ad-interim application, this Court was minded to hear it inter-partes, given the weighty issues involved.

[4] Parties then appeared before this Court twenty-four hours later for the ad-interim injunction application pending the hearing of the inter-partes injunction application of encl 6. This Court found that, in reality, the effect of the ad-interim injunction would undoubtedly stay the powers of the EC of their constitutional duty. Submissions of irreparable damage would be put forth by the Plaintiff if the process of the by-election was to proceed. This Court was not with the Plaintiff on that point as it opined that the Plaintiff's right to take part in whatever election that was to be held. This Court was also of the opinion that the hearing of the inter-partes application would not be jeopardised with the refusal of the ad-interim order. This Court iterated that it was most minded to adhere to the separation of powers between the Judiciary, the Legislative, and the Executive. Costs of the day were awarded to all the Defendants in the sum of RM7,000.00 respectively.

[5] The hearing for the arguments of the interim injunction was fixed on 28 August 2024 but was brought earlier to 7 August 2024 as the polling was fixed for 17 August 2024.

Enclosure 6: Interim Injunction

[6] The Plaintiff seeks to restrain the Speaker and EC from taking any steps to declare a casual vacancy in his State Assembly seat and from conducting a by-election for that seat. He seeks that the notice issued by the Speaker to the EC dated 19 June 2024 that declared the vacancy of the N43 Neggiri seat be stayed and not effective until the disposal of his OS. He also seeks to temporarily injunct the EC from taking any/further steps pursuant to the said notice. The Plaintiff seeks to injunct the holding of the by-election by the EC for the vacant N43 Nenggiri seat. This application arises in the context of a broader challenge by the Plaintiff to his purported termination from BERSATU and the constitutional implications of that termination on his elected positions.

[7] The ap