Siti Norma Yaakob JCA:

[1] To appreciate the nature of this appeal before us, it is necessary that we begin with some factual background.

[2] At the General Elections held on 25 April 1995, three contenders vied for the Parliamentary seat for the Bukit Bintang Constituency.

[3] The three were Mr. Wee Choo Keong, the appellant before us, Mr. Lee Chong Meng, the 1st respondent and Mr. Teng Chang Khim, who is not a party in this appeal.

[4] The appellant was duly elected the Member of Parliament for Bukit Bintang but his election was challenged by firstly the 1st respondent, who filed an election petition, PP-1-95 on 19 June 1995 and secondly by Mr. Wong Yook Sung @ Wong Tong Lim, the 2nd respondent and a voter at the same constituency, who filed a separate election petition, PP-3-95 on 2 August 1995.

[5] Both election petitions were filed pursuant to the provisions of Article 118 of the Federal Constitution> and both cited the Election Commission, the Returning Officer for the Bukit Bintang Constituency and the appellant, as respondents.

[6] The challenge in both petitions is grounded on the fact that the appellant had been convicted of the offence of contempt of Court and fined RM7,000, and hence disqualified to be a Member of Parliament under the provisions of Article 48(l)(e) of the Federal Constitution>.

[7] It is common ground that in proceedings brought by MBf Holdings Bhd. and another against the appellant and two others, Dato' Anuar Zainal Abidin J (as he then was) had granted an injunction against the appellant on 9 February 1993 restraining him from printing, circulating, distributing or publishing any allegation impropriety or irregularity or illegality against MBf Holdings and its subsidiaries.

[8] In subsequent committal proceedings commenced against the appellant, the learned Judge found on 31 December 1993 that the appellant had breached the injunction and had also evaded service of the said injunction.

[9] On 28 January 1994, the appellant was sentenced to 2 years imprisonment for the breach and another 2 years for the evasion of service charge.

[10] On appeal, the Federal Court on 14 April 1995 by a unanimous decision set aside Dato Anuar Zainal Abidin J's finding on the breach and sentence and by a majority of 2 to 1 confirmed his finding on the evasion of service of the injunction, set aside the sentence of 2 years imprisonment and substituted it with a fine of RM7,000.

[11] It was on the basis of this contempt that the election of the appellant was challenged.

[12] Dato Ahmad Fairuz, J (as he then was) was nominated by the Chief Judge of Malaya under the provisions of s. 33(l) of the Election Offences Act, 1954 (the Act)to try the two election petitions.

[13] On 2 August 1995, the learned High Court Judge made the following findings:

(1) That the contempt of evading service of the injunction by the appellant is a criminal offence.

(2) Under such circumstances, the Returning Officer ought not to have accepted the appellant's nomination papers on 15 April 1995 (Nomination Day) as at that point of time, the appellant was already convicted of a criminal offence and sentenced to a fine of RM7,000 and therefore disqualified under the provisions of Article 48(l)(e) of the Federal Consitution> and to that end he was not duly elected or properly returned.

[14] Consequent upon these findings, the learned Election Judge made 2 declarations. (1) That the appellant had not been properly and legally elected and (2) That the 1st respondent is the duly elected Member of Parliament for Bukit Bintang.

[15] As the appellant is barred by s. 36 of the Actfrom appealing against the decision of the election he instead filed Originating Motion Rl-25-127-95 in the appellate and Special Powers Division of the High Court at Kuala Lumpur, citing the election Judge, (this was later struck out) the 1st and 2nd respondents as respondents and praying for leave ex parte to apply for an order of certiorari to quash the decision of the election Judge m