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2012 MarsdenLR 1069
FEDERAL COURT PUTRAJAYA
DATO ABU HASAN SARIF – Appellant
Versus
DATO DR ABD ISA ISMAIL – Respondent
[Civil Application No: 08( )-395-09/2011 (W)]
The court reinforced the inherent powers of the judiciary to prevent injustice and affirmed the right to representation, emphasizing that stays on declaratory relief are generally impermissible.
Headnote:(A) Federal Court Rules 1995 - Rule 137 - Courts of Judicature Act 1964 - Section 96 - Application to discharge stay of decision - The inherent powers of the Federal Court can be invoked to prevent injustice and uphold fair administration of justice. Court upheld applicant’s prior rights as Assemblyman, emphasizing democratic representation. (Paras 5, 9, 10, 14)
(B) Jurisdiction - The Federal Court possesses inherent powers to review decisions of the Court of Appeal, especially in cases of injustice. (Paras 5, 9, 15)
Facts of the case:
The applicant's seat as the Assemblyman for Kota Siputeh was declared vacant due to alleged non-attendance, but the Election Commission determined that the seat was not vacant. The applicant’s successful appeal to the Court of Appeal was later stayed by a different panel, prompting this application.
Findings of Court:
The stay of the decision was found to deprive the applicant of elected representation and create a grave injustice. Applicant's successful appeal must be respected to prevent permanent loss of rights.
Issues: Whether the Federal Court had jurisdiction to hear the application and if it should discharge the stay imposed by the Court of Appeal.
Ratio Decidendi: The court emphasized the importance of preventing injustices to uphold democratic processes and found the exercise of inherent powers justified to restore the applicant as Assemblyman, noting that a stay of declaratory relief is not ordinarily permissible.
Result: Application allowed; the stay was discharged.
| Table of Content |
|---|
| 1. application for order related to seat vacancy (Para 1 , 2) |
| 2. preliminary objection regarding court jurisdiction (Para 3 , 4) |
| 3. court's inherent powers to prevent injustice (Para 5 , 6 , 7 , 8) |
| 4. assessing merit of the application and errors of the court of appeal (Para 9 , 10 , 11) |
[1] This is an application by the applicant filed by way of Notice of Motion to this court pursuant to r 137 of the Rules of the Federal 1995 ("RFC") for an order that the order of the court of Appeal dated 2 November 2011 which ordered a stay of its own decision given on 18 August 2011 be discharged and/ or set aside. We heard and allowed the application on 14 November 2011. We now give the reasons for our decision.
Background Facts
[2] The relevant background facts leading to this application by the applicant may be summarized as follows:
(1) On 17 August 2009, the respondent as the speaker of the Legislative Assembly of the State of Kedah ("the speaker") informed the Election Commission of Malaysia ("EC") that the Kota Siputeh (N3) seat in the State of Kedah had purportedly become vacant due to the applicant's non-attendance as a State Assemblyman at the State Assembly on purportedly two consecutive meetings of the State Assembly, namely on 19 April 2009 and 9 August 2009.
(2) On 1 September 2009, the EC decided that the Kota Siputeh (N3) seat had not become vacant.
(3) On 1 October 2009, the respondent filed an application for judicial review to, inter alia, seek a declaration that the applicant was no longer the State Assemblyman for Kota Siputeh (N3) and that the applicant's seat was vacant, as well as a certiorari to quash the EC's decision set out in its letter dated 1 September 2009.
(4) On 16 November 2009, the High court granted the declarations and the order for certiorari sought by the respondent.
(5) Resulting from the High court's decision, the applicant was no longer the State Assemblyman of Kota Siputeh and his seat was declared vacant.
(6) The applicant then filed an appeal to the court of Appeal against the decision of the High court dated 16 November 2009.
(7) The EC also filed a separate appeal to the court of Appeal against the decision of the High court dated 16 November 2009.
(8) On 18 August 2011, the court of Appeal allowed the applicant's appeal and set aside the High court's decision dated 16 November 2009.
(9) The consequence of the court of Appeal's decision on 18 August 2011 was, in essence, that the decision of the EC regarding non-vacancy was upheld, and in effect, the applicant was restored as the State Assemblyman of Kota Siputeh (N3) constituency.
(10) The respondent filed an application for leave to appeal to the Federal court against the decision of the court of Appeal dated 18 August 2011. The respondent also applied to the court of Appeal for a stay of the court of Appeal's decision dated 18 August 2011 pending the disposal of the application of leave to appeal to the Federal court.
(11) On 2 November 2011 the court of Appeal comprising the coram of a different member panel from the member panel that allowed the application's appeal on 18 November 2011 granted the respondent's application for a stay of the court of Appeal's decision dated 18 November 2011.
Preliminary Objection
[3] At the outset of the hearing of the applicant's application before us learned counsel for the respondent raised a preliminary objection as to the jurisdiction of this court to hear the application under r 137 of the RFC. Rule 137 of the RFC provides as follows:
"137. Inherent powers of the court
For the removal of doubts, it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the court to hear any application or to make any order as may be necessary to prevent an injustice or to prevent an abuse of the process of the court. "
[4] It is the contention of the respondent that the applicant's application is an abuse of the court's process and that the applicant ought to have first fil
