Press Statement by Karpal Singh in Kuala Lumpur on Friday, 24th
October 2008:
Zulkifli Nordin's status as MP is
untenable
The status of Zulkifli Nordin, as Member
of Parliament for Kulim-Bandar Baharu, is in grave doubt as the election
petition which was withdrawn at the High Court Alor Setar on 13th
October, 2008 is not in accordance with law.
No doubt, although the Barisan National candidate, Datuk Abdul Aziz
Sheikh Fadzir, had the right to withdraw the election petition, the
manner in which the petition was withdrawn is not supportable in law
having regard to the provisions of the Election Petition Rules, 1954.
Unlike ordinary civil proceedings, in which the parties are at liberty
to withdraw a suit by doing so in open court, an election petition
cannot be withdrawn except if it is in compliance with rule 21 of the
Election Petition Rules. Rule 21 provides for the procedure for
withdrawal of election petitions. Pursuant to this rule, an election
petition cannot be withdrawn without leave of the judge. Before such
leave is granted, affidavits are required to be produced by all parties
to the petition, their lawyers and by the election agents of all the
parties who were candidates at the election with the proviso that the
judge may, on cause shown, dispense with the affidavits of any
particular persons if it seems to such judge on special grounds to be
just to do so. Each affidavit is required to state that, to the best of
the deponent's knowledge and belief, no agreement or terms of any kind
whatsoever has or have been, and no undertaking, has been entered in
relation to the withdrawal of the petition; but if any lawful agreement
has been made to the withdrawal of the petition, the affidavit is
required to set forth the agreement. The affidavit of the applicant and
his lawyer must state the grounds on which the petition is sought to be
withdrawn.
A copy of the application for leave to withdraw the petition must be
given by the petitioner to the respondent and notice thereof is required
to be published in the Gazette and any person who might have been a
petitioner in respect of the election may, within 5 days after the date
of the publication, give notice in writing to the Registrar of the High
Court of his intention, on the hearing of the application, to be
substituted as a petitioner. The judge may, if he thinks fit, substitute
as a petitioner any such person.
It is obvious that the election judge, Justice Datuk Balia Yusof Wahi,
the parties concerned and their lawyers have overlooked the provisions
in the Election Petition Rules in relation to withdrawal of an election
petition.
In the public interest, Justice Datuk Balia Yusof should reconvene the
court for the purpose of compliance with the mandatory provisions in the
Election Petition Rules relating to the withdrawal of an election
petition. In the meanwhile, the judge should ensure that the order with
regard to the withdrawal of the election petition at the High Court,
Alor Star is not approved. If the position is not regularized, the
withdrawal of the election petition for all intents and purposes is null
and void and of no effect. The matter cannot be allowed to remain as it
is.
If the necessary action is not taken to regularise the position,
Zulkifli's status as MP can be subject-matter of serious implications
and consequences. In the public interest, Justice Datuk Balia Yusof
should spring into action and recall the election petition for purposes
of compliance with rule 21 of the Election Petition Rules, 1954. In
fact, any registered voter in Kulim-Bandar Baharu is entitled to
commence proceedings against both Zulkifli, the defeated Barisan
Nasional candidate and the Election Commission to require compliance
with rule 21. It will be an embarrassment to both Zulkifli, the defeated
Barisan Nasional candidate, the Election Comission and the judge himself
if this course of action is not resorted to. In fact, I call upon the
Election Commission to do the needful to require those who represented
the Returning Officer and the Election Commission in the proceedings to
call upon the judge to recall the election petition for the purpose of
complying with rule 21. The public interest demands that the Election
Commission cannot stand idly by with a clear contravention of election
law in the proceedings before Justice Datuk Balia Yusof.
* Karpal Singh, DAP National Chairman & MP for Bukit
Gelugor
http://dapmalaysia.org