Edgar Joseph Jr SCJ:

[1] I have had the advantage of reading the draft judgment of Tun Abdul Hamid LP in the Principal Appeal, being Appeal No 44/9l, with which the present appeal is closely connected, and am in complete agreement with it and have nothing to add.

[2] I must now address the issues which arise for decision in the present appeal.

[3] Encik Zainur Zakaria, Counsel for the appellants (the first and the second defendants), in outlining the agreed facts upon which he relied, pointed out that consequent to the State Legislative Assembly of Kelantan (the first defendant) having passed the resolution pursuant to the impugned legislation referred to in the judgment of the Lord President, the first and the second respondents (the first and the second plaintiffs) had ceased to be members of the State Legislative Assembly of Kelantan, and had had their seats for the constituencies concerned declared vacant, and a by-election had been conducted by the Election Commission, wherein the first and the second plaintiffs had stood for election as candidates, but were defeated whilst the victorious candidates were Haji Samat bin Mamat and Haji Mahmud bin Haji Yaacob.

[4] Yet, said Counsel, neither Haji Samat nor Haji Mahmud or even the Election Commission, had been made parties to the proceedings in the Court below, thereby denying them the opportunity of being heard, so that there had been a breach of the rules of natural justice.

[5] It was further argued by Counsel that neither Haji Samat nor Haji Mahmud could be removed from the State Legislative Assembly of Kelantan, save and except by virtue of a declaration made by an Election Judge declaring their election void, made pursuant to an election petition, regard being had to the provisions of art 118 of the Federal Constitution and s 32 of the Election Offences Act 1954, (Act 5) which read as follows:

Article 118 of the Federal Constitution

118. No election to the House of Representatives or to the Legislative Assembly of a State shall be called in question except by an election petition presented to the High Court having jurisdiction where the election was held.

Section 32 of the Election Offences Act 1954 (Act 5)

32. The election of a candidate at any election shall be declared to be void on an election petition on any of the following grounds which may be proved to the satisfaction of the Election Judge:

(a) that general bribery, general treating or general intimidation or other misconduct or other circumstances whether similar to those before enumerated or not have so extensively prevailed that they may be reasonably supposed to have affected the result of the election;

(b) non-compliance with the provisions of any written law relating to any election if it appears that the election was not conducted in accordance with the principles laid down in such written law and that non-compliance affected the result of the election;

(c) that a corrupt practice or illegal practice was committed in connection with the election by the candidate or with his knowledge or consent, or by any agent of the candidate;

(d) that the candidate personally engaged a person as his election agent, or as a canvasser or agent, knowing that such person had within seven years previous to such engagement been convicted or found guilty of a corrupt practice by a Sessions Court, or by the report of an Election Judge; or

(e) that the candidate was at the time of his election a person disqualifed for election.

[6] It followed, said Counsel, that in holding as he did in fact hold:

(1) that the removal of the first and the second plaintiffs from the membership of the State Legislative Assembly of Kelantan and the declaration by the Assembly that their seats had fallen vacant as on 3 July 1991, were void and of no effect,

(2) that consequently, the two notices issued by the Speaker of the Legislative Assembly of Kelantan, who is the second defendant, to the Election Commission, were also void and of no effect, and

(3) that