The jurisdiction for election petitions is determined by the location of the election, and different rules apply to petitioners and respondents regarding counsel appointment.

[3] In this judgment, parties will be referred to as they were in the High Court.

Background Facts

[4] The petitioner was a Parti Keadilan Rakyat candidate for the Parliamentary seat in P.139 Jasin, Malacca. He filed an election petition in the High Court at Kuala Lumpur challenging the result of the 14th General Election for the said seat. The 1st respondent was a Barisan Nasional candidate, the pronounced winner of the seat. The 2nd respondent was the Returning Officer while the 3rd respondent is the Election Commission.

Proceedings In The High Court

[5] Both the petitioner and the respondents raised preliminary objections in the High Court. The petitioner's preliminary objection was premised on rr 9 and 34 of the Election Petition Rules ("the EPR 1954") which provides:

"Appointment of advocate by petitioner

9. With the petition the petitioner or petitioners shall leave at the office of the Registrar a writing, signed by him or them, giving the name of an advocate whom he or they authorize to act as his or their advocate or stating that he or they act for himself or themselves, as the case may be, and in either case giving an address within Malaysia at which notices may be left. Every such writing shall be stamped with the duty payable thereon under the law for the time being in force."

Notice of appointment of advocate

34. An advocate shall, immediately upon his appointment as such, leave written notice thereof at the office of the Registrar."

[6] It was contended by the petitioner that the respondents failed to comply with rr 9 and 34 in that the notice of appointment of the advocates for the respondents was not stamped and that the filing of the notice of appointment of the 1st respondent's advocates was made through a law firm and not the advocates concerned. Accordingly, it was argued by the petitioner that the appointment of the respondents' advocates was invalid and the said advocates had no locus to represent the respondents.

[7] The respondents' objections on the other hand, were premised on the following grounds:

(i) that there was non-compliance of art 118 of the Federal Constitution by the petitioner where the petitioner had wrongly filed the election petition in the High Court at Kuala Lumpur when it ought to have been filed in the High Court at Malacca;

(ii) that service of the election petition was in breach of r 15 of the EPR 1954;

(iii) that there was non-compliance by the petitioner of rr 4(1)(b) and 4(4) of the EPR 1954; and

(iv) that the filing of the election petition was an afterthought.

[8] At the outset, the 2nd and 3rd respondents withdrew their preliminary objections and their written submissions in respect of the preliminary objections.

[9] On the petitioner's preliminary objection, the election judge held that r 9 of the EPR 1954 is only applicable to the petitioner and not the respondent. This is what the learned election judge said:

"[11] Dengan mengaplikasikan tafsiran secara mudah ke atas peruntukan k 9 KKPPR 1954, nyatalah bahawa ianya adalah peruntukan yang hanya ditujukan kepada pempetisyen sahaja. Tatacara yang perlu diikuti di bawah kaedah tersebut secara jelas merujuk kepada petisyen dan pempetisyen. Tidak ada tafsiran lain yang boleh dibuat selain daripada mendapati kehendak k 9 hanya terpakai kepada pempetisyen sahaja dan bukannya kepada responden.

[12] Tambahan pula, nota birai k 9 juga secara jelas merujuk kepada pelantikan peguam bela oleh pempetis