Lord Upjohn:

This appeal from the Federal Court of Malaysia is concerned with an election petition launched by the respondent on the 29 June 1964 against the appellant, who was a candidate for election to the Dewan Ra'ayat at the election held on the 25 April 1964 claiming that his election was invalid on the ground that he was disqualified at the time, in that he was not at that time a citizen of Malaysia. Election petitions are governed by Pt VII of the Election Offences OrdinanceNo. 9 of 1954 and by the rules made thereunder which are contained in the Second Schedule to that Ordinance.

The judgment of their Lordships was delivered by,

The appellant alleged before the election Judge (Ismail Khan J) that the petition had not been served upon him in accordance with the rules, the Judge ruled in his favour and, by order dated 26 September 1964 struck out the petition. He gave leave to appeal to the Federal Court who reached a contrary conclusion and allowed the appeal of the respondent. The Federal Court gave leave to appeal to their Lordship's Board.

Two quite independent questions are raised by this appeal. First, whether any appeal to the Federal Court or to their Lordships' Board is competent.

Secondly, if any such appeal is competent, whether upon the true construction of the rules concerning the service of petitions the election Judge was right in thinking that the relevant rule was mandatory, or whether he was rightly overruled by the Federal Court, who held it was directory only.

Constitutionally decisions on questions of contested elections are vested in the Assembly for which the contested election has been held, but in the course of the nineteenth century many countries, including this country and many of Her Majesty's possessions overseas, adopted the view that, as the deliberations of the Assembly itself were apt to be governed rather by political considerations than the justice of the case, it was right and proper that such questions should be entrusted to the Courts. This required legislation in every case, and in many cases the right of appeal after the hearing of an election petition by an election tribunal to which those hearings was entrusted were severely limited clearly for the reason that it was essential that such matters should be determined as quickly as possible, so that the Assembly itself and the electors of the representatives thereto should know their rights at the earliest possible moment. But essentially the question whether there is any limitation upon the right of appeal must depend upon the terms of the enactment setting up the election tribunal. These are to be found in ss. 33 and 36 of the Election Offences Ordinance which as amended in 1959 are so far as relevant as follows:-"

33. (1) Every election petition shall be tried by the CJ or by a Judge of the High Court nominated by the CJ for the purpose ...

(4) Unless otherwise ordered by the CJ, all interlocutory matters in connection with an election petition may be dealt with and decided by any Judge of the High Court.

36. At the conclusion of the trial of an election petition the Election Judge shall determine whether the candidate whose return or election is complained of, or any other and what person, was duly returned or elected, or whether the election was void, and shall certify such determination -

(a) to the Election Commission in the case of an election of a person to be a member of the Dewan Ra'ayat, a Legislative Assembly, the municipal council of the federal capital or of any other election that the Election Commission may be authorised to conduct; or

(b) in the case of any other election, to the Ruler or Governor of the State.

Upon such certificate being given such determination shall be final; and the return shall be confirmed or altered, or the Election Commission or the Ruler or Governor (as the case may be) shall within one month of such determination give notice of election in the constituency, electoral