Azahar Mohamed J

THE P94 BY-ELECTION

[1]This election petition arises as a result of a by-election which took place about three months ago. Mohd Zaid bin Ibrahim (‘the petitioner’) was the candidate at the by-election for the parliamentary constituency of P94 Hulu Selangor for Parti Keadilan Rakyat. In the said by-election held on the 25 April 2010, the petitioner and one P Kamalanathan a/l P Panchanathan (‘the first respondent’), representing the Barisan Nasional, were the only candidates. A total number of 64,500 parliamentary electors made up the electorate of the parliamentary constituency of P94 Hulu Selangor at the material time for the said by-election. The said parliamentary constituency covered the area of Hulu Selangor which included the districts of Rasa, Sungai Buaya and Kalumpang. The first respondent was subsequently declared the winner with a majority of 1,725 votes. The returning officer, Tuan Hj Nor Hisham bin Ahmad Dahlan (‘the second respondent’), returned the first respondent as being duly elected as Member of Parliament of P94 Hulu Selangor.

THE ELECTION PETITION

[2]Subsequently, on 24 May 2010 the petitioner filed the petition herein pursuant to s 34(b)Election Offences Act 1954

(a)that it might be determined that P Kamalanathan a/l P Panchanathan, the respondent herein, was not duly elected or ought not to have been returned as the Member of Parliament for P94 Hulu Selangor parliamentary constituency and this election was null and void;

(b)for determination and directions under s 36

(c)costs; and

(d)any such further order or other reliefs as the court deems just.

[3]Besides the first and second respondents, the Election Commission Malaysia, the constitutional body which conducted the by-election pursuant to art 113 of the Federal Constitution (‘FC’) was also named as the third respondent.

[4]Section 32

(a)corrupt practice by the first respondent and/or the agent pursuant to s 32(c)

(b)general bribery by the first respondent and/or the agent pursuant to s 32(a)

[5]As it can be understood from the election petition, three main corrupt practices were alleged to have been committed by the first respondent. The first falling under s 10(a)s 10(c)s 10(e)

[6]Continuing with the sequence of events, counsel for the respective parties appeared before me on 16 June 2010 for pre-trial case management. This court then fixed 19 July 2010 until 29 July 2010 for the trial of the petition.

THE FIRST RESPONDENT’S STRIKING OUT MOTION

[7]The first respondent then took out a motion dated 28 June 2010 (encl 26) seeking to strike out the petitioner’s petition. On 9 July 2010, the second and third respondents gave notice of their preliminary objection.

[8]The first respondent’s motion to strike out the petition is premised on the following grounds:

(a)the petitioner’s failure to comply with r 15(1) of the Election Petition Rules 1954 (‘EPR’);

(b)the petitioner’s failure to comply with r 9 of the EPR;

(c)the petitioner’s failure to comply with r 4(1)(b) and r 4(4) of the EPR;

(d)the matters pleaded in the election petition not falling within the definition of s 32(a)(c)

(e)the election petition not disclosing any reasonable cause of action.

THE SECOND AND THIRD RESPONDENTS’ PRELIMINARY OBJECTION

[9]The second and third respondents’ preliminary objection is based on the following:

(a)the election petition does not disclose any reasonable cause of action against the second and third respondents; and

(b)the petitioner has failed to comply with the mandatory requirements under r 4(1)(b) of the EPR because the petition does not contain sufficient facts and/or the facts or particulars pleaded do not amount to any of the offences provided under s 32(a)(c)

(i)The petitioner has failed to identify the purported persons to whom the promises were alleged to have been made and/or has failed to state whether they were registered voters of the Parliamentary Constituency of P94 Hulu Selangor.

(ii)The petitioner has failed to state the facts and grounds relied upon to sust