JUDGMENT

Abdul Hamid Mohamad JCA:

This appeal arises from two election petitions, ie, Election Petition No. 5 of 1999 and Election Petition No. 11 of 1999. Both petitions concern the general election for the State Assembly for the constituency of Likas, known as "N13". The present appellant was the second respondent in Election Petition No. K5 of 1999 and third respondent in Election Petition No. K11 of 1999. The present respondent was the petitioner in both petitions. They were both candidates in the said election which was won by the appellant.

In the court below, both the petitions were consolidated.

Election Petition No. 5 of 1999 concerns the erection of four billboards alleged to have contained false statements about the respondent and alleged to have been made and/or put by the appellant. The election judge found that the appellant had committed an offence under s. 11(c) and (d) and s. 32 of the Election Offences Act 1954.

Election Petition No. 11 of 1999 was based on three main grounds:

(1) that the Election Rolls 1998 which was used in the said election was illegal as (it was alleged) it contained names of non-citizens and persons who had been convicted for possession of fake identity cards;

(2) that there were corrupt practices on the part of the appellant;

(3) that there was conspiracy between the Federal Government and Barisan Nasional (the party to which the appellant represented in the said election).

The learned judge found in favour of the respondent on the first ground and held that the 1990 Electoral Roll for the said constituency "was illegal".

Regarding the second ground, the learned judge found that the respondent "had failed to prove beyond reasonable doubt the offence of bribery or corrupt practices."

Regarding the third ground, the learned judge found that there was no evidence of the alleged conspiracy.

In conclusion the learned judge declared that the 1998 Electoral Roll for Likas Constituency (N13) was illegal and that the said election was null and void.

The appellant appealed to this court.

When this appeal came before us, we directed the learned counsel for both parties to address us on one point first, and that is whether a decision of an election judge in an election petition is appealable to this court. After hearing the arguments of the learned counsel for both sides, we reserved our judgment as a constitutional issue of great importance and wide implications has been raised. This judgment is in respect of that issue only.

The argument of the learned Queen's Counsel for the appellant may be summarised thus:

Article 121(1B)(a) vests the jurisdiction in the Court of Appeal to determine appeals from decisions of a High Court or a judge thereof, regardless of whatever the position was as to the jurisdiction of the Federal Court (or Supreme Court) prior to the creation of the Court of Appeal. By virtue of Article 121(1B)(b), this "primary jurisdiction" may be enlarged by federal law but not abrogated, limited or restricted. Any law that attempts to do so is void for inconsistency under art. 4(1) of the Constitution. Jurisdiction under ss. 32, 33 and 36 of the Election Offences Act 1954 is vested exclusively in the High Court by art. 118 of the Constitution and those same sections. To the extent that s. 36 of the Election Offences Act 1954 purports to exclude the jurisdiction of the Court of Appeal to hear an appeal from a final order of an election judge, it is void and of no effect by operation of art. 4(1) it being inconsistent with art. 121(1B)(a) of the Constitution. The decisions of the courts prior to 24 June 1994, the date of the creation of the Court of Appeal, are not in point as they do not concern art. 121(1B).

For easy reference the relevant provisions of the Constitution are reproduced:

Article 4(1)

4(1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be v