Hashim Yeop Sani SCJ:

Abdul Fatah bin Haji Haron, the respondent in this appeal was one of the two candidates in the Kelantan state election for the state constituency of Bukit Tuku held on 3 August 1986. He lost the election. On 1 October 1986 he filed an election petition in the Kota Bharu High Court vide Kota Bharu Election Petition No. 33-1-86 challenging the validity of the election of the other candidate, one Zakaria bin Botok. In the petition he claimed that the said Zakaria bin Botok was not duly elected or returned and that he was the one who was duly elected and ought to have been returned. The hearing of the said election petition was fixed in April 1987 but was postponed because the said Zakaria bin Botok passed away on 31 March 1987. On 2 April 1987 the secretary to the Dewan Negeri Kelantan wrote to the secretary to the Election Commission informing the Commission of the death of the said Zakaria bin Botok.

Article 113(1) of the Federal Constitution enjoins the Election Commission inter alia to conduct elections to the legislative assemblies of the states. Article XLVI(5) of the Constitution of Kelantan provides that a casual vacancy in the legislative assembly of the state shall be filled within sixty days from the date on which it occurs. The Chairman of the Election Commission announced on 6 April 1987 that nomination for the Bukit Tuku by-election as a result of the death of the said Zakaria bin Botok would be held on 18 April 1987 and that if there was a contest polling would be held on 27 April 1987.

On 13 April 1987 the respondent filed a civil suit against the Election Commission in the High Court in Kuala Lumpur asking for a declaration that the Election Commission Cannot lawfully call for nominations on 18 April 1987 with a view to holding a by-election for the Bukit Tuku constituency before finalisation of the Kota Bharu Election Petition No. 33-1-86. On the same day the respondent made an ex parte application by summons-in- chambers for an interim injunction to restrain the Election Commission from calling for nominations on 18 April 1987 with a view to holding the said by-election. The learned Judge granted the application with liberty to apply.

On 23 April 1987 the Election Commission applied to discharge the interim injunction but the application was refused by the learned Judge. Hence the appeal. Since there is no written judgment by the learned Judge we do not know for certain on what basis or principles the interim injunction was granted. On 20 May 1987 we allowed the appeal and discharged the injunction.

Many grounds of appeal were submitted on behalf of the Election Commission. For the purpose of this appeal we need only consider one as being the most cogent and this is the question of jurisdiction.

It was submitted on behalf of the appellant that there was no jurisdiction for the Court to entertain the application of the respondent because the Election Commission was exercising its constitutional functions under Part VIII of the Federal Constitution relating to conduct of elections. It was also submitted that this Court had decided the same in previous appeals -

SCCA No. 358 of 1985, SCCA No. 359 of 1985 and SCCA No.360 of 1985. The three appeals originated from three summons-in-chambers consolidated asking for a number of orders including one that sought for an injunction to restrain the Election Commission and their servants, agents or otherwise from issuing a writ of by-election and holding, conducting or continuing with any by-election in a constituency in the State of Sabah. All the applications were dismissed by the learned Judge and this Court dismissed the appeals on 7 November 1985. In its oral judgment this Court recognises two important aspects of the matter before it then. Firstly, it recognises that the relief sought in the Court below was discretionary. Because it was an exercise of discretion the appellate Court leans against inter-ferring with the decision of the lowe