Abdul Hamid Mohamad FCJ:

In the general election for the Parliamentary constituency of Bukit Bintang held on 21 March 2004, the first respondent was returned with a majority of 304 votes. On 29 April 2004 the appellant (petitioner in the High Court) filed an election petition, praying primarily for the following declarations that:

1. the election was void; and

2. the first respondent was not duly elected or ought not to have been returned.

Both the prayers are based on s. 35(a) and (b) of the Election Offences Act 1954 ( "the Act ").

According to the notes of evidence, counsel for the respective parties appeared before the learned Election Judge on 28 May 2004 for what appears to be for case management. The respective counsel informed the learned judge of the number of witnesses they intended to call at the trial. Encik Amarjeet Singh, the senior federal counsel appearing for the second and third respondents also informed the court that there would be " some preliminary objections ". The learned judge fixed the dates for the trial of the petition. The learned judge also directed learned counsel for the parties to file written submissions on the preliminary objections by certain dates and recorded that the decision on the preliminary objections would be given on 21 July 2004, the first day fixed for the trial. The learned judge also directed the parties to exchange witnesses' statements by certain dates about three weeks before the date fixed for the decision on the preliminary objections and the commencement of the trial.

On 21 July 2004, the learned judge gave his decision on the preliminary objections. The learned judge, in a written judgment, ruled that the petition was defective and ordered that it be struck out and awarded costs of RM1,000 to the first respondent and costs to be taxed for the second and third respondents. The appellant appealed to this court pursuant to s. 36A, that had been inserted recently by Act A1177 of 2002.

Before us the respondents raised yet another preliminary objection that the petitioner had " no locus standi " to maintain the appeal. Two grounds were forwarded. First, the petition did not state that the petitioner was either a " person who voted " or a person who " had a right to vote " at the said election. In other words, it was submitted that the petitioner should state either one of the two alternatives, not both. It is to be noted that in the petition, the petitioner stated:

1. Pempetisyen kamu adalah seorang yang telah mengundi atau yang ada hak untuk mengundi (emphasis added).

The second ground forwarded in the preliminary objection was that the judgment of the learned judge striking out the petition was not appealable under s. 36A of the Act.

The First Ground

The crux of the argument is that the petitioner should have said in the petition that either he had voted OR that he had a right to vote, not both.

Section 34 of the Act provides:

34. An election petition may be presented to the High Court by any one or more of the following persons:

(a) some person who voted or had a right to vote at the election to which the petition relates;

(b) some person claiming to have had a right to be returned or elected at such election; or

(c) some person alleging himself to have been a candidate at such election.

Rule 4 of the Election Petition Rules 1954 ( "the Rules ") provides:

4. (1) An election petition shall contain the following statements:

(a) it shall state the right of the petitioner to petition within section 34 of the Act; and

(4) The following form, or one to the like effect, shall be sufficient:

IN THE HIGH COURT OF

The Election Offences Act 1954

Election for (state the constituency or electoral ward) holden on the day of 19

The petition of A of (or of A of and B of as the case may be) whose names are subscribed.

(1) Your petitioner A, is a person who voted (or had a right to vote, as the case may be) at the above election (or claims to have had a right to be returned at t