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©Bernama
(Used by permission)
KOTA KINABALU, Sept 8 (Bernama) -- The High Court here today declared null and
void the election of Parti Bersatu Rakyat Sabah (PBRS) president Tan Sri Joseph
Kurup as the unopposed winner of the Pensiangan parliamentary seat in the March
8 general election.
In delivering the landmark judgment, Justice David Wong Dak Wah ruled that the
wrongful rejection of the nomination papers of the petitioner, Parti Keadilan
Rakyat's Danny Anthony Andipai, had breached the petitioner's constitutional
right to take part in the election and the written law relating to the conduct
of the election.
In his 36-page judgment, Wong said the decision of the deputy director of the
Sabah Election Commission to accept Andipai's nomination papers was final and
could not be overruled by the returning officer, Bubudan OT Majalu, under the
pretext that there was an objection during the objection period.
The deputy director was exercising a power provided for by law in making the
decision, said the judge who also ruled that Bubudan's decision to uphold the
objection was a wrong decision.
"I find certain aspects of the second repondent's (Bubudan's) conduct troubling
and when taken in its totality, I can only conclude that the decision made was
definitely not one which a reasonable tribunal would come to," he said.
He made the observation when allowing Andipai's petition to nullify the election
result of the Pensiangan seat which Kurup won unopposed on nomination day on Feb
24.
Andipai had named Kurup and Bubudan as respondents. The judgement was to have
been delivered on Sept 17 but was brought forward today.
Outlining what happened on nomination day, Wong said Andipai arrived at the
nomination centre at the Nabawan District Council Hall at about 9.35am to file
his nomination papers for the seat.
After paying the deposit of RM15,000 he waited his turn but when he tried to
submit his nomination papers, Bubudan refused to accept them on the ground that
he was late in submitting them.
Andipai argued that it was not his fault but that of Bubudan and his staff and
having failed to convince Bubudan, he said that he would be lodging a police
report.
However, while the discussion was going on, one of the assistant returning
officers, Osman Aganduk, sought the advice of the state election commission
which gave the directive to accept the nomination papers.
Wong said the directive, which came from the deputy director of the Election
Commission of Sabah, was relayed to Bubudan who then accepted Andipai's
nomination papers which were endorsed with the acceptance time of 10.25am.
Objections closed at 11am and at about 1.25pm, Bubudan announced that Kurup was
returned unopposed and declared him duly elected on the ground that the
nomination papers of Andipai and an independent candidate, Saineh Usau, were
delivered after 10am.
Wong said it was clear from the provisions of the Election Act that returning
officers like Bubudan were subject to the control, direction and supervision of
the Election Commission (EC).
On whether regulations 6(2) and 6 (2A) (a) of the 1981 regulations prohibited
Bubudan or the EC to allow receipt of nomination papers after 10am on nomination
day, he said: "If I were to adopt the position of the respondents, it may lead
to a chaotic situation".
"Take the situation at the nomination centre in this case. The nomination centre
was used to cater for two state constituencies and a parlimentary constituency,
where only one counter was open for all the candidates for the three
constituencies to submit their nomination papers.
"There were 12 citizens of the land who wanted to be candidates in the 12th
general election turning up to deliver their papers on nomination day and that
number had in fact caused some confusion and dispute resulting in this election
petition
"What if 20 citizens turned up on that nomination day? Are we to say that only
those who are able to submit their nomination papers before 10am are entitled to
exercise their constitutional rights to contest in the election?
"If that is the law, it will lead to abuse and chaos, abuse in that one party
can get a group of people to submit their nomination papers early to ensure that
his or her opponent will not get to the returning officers before 10am," he
said.
The judge also said he found it unbelievable that Bubudan did not know, as he
had claimed, that coupons bearing numbers were given to the condidates on that
day.
"If what he says is true, this only reflects his own shortcoming as the returing
officer who had full charge of the nomination centre," he added.
Andipai's leading counsel, Ansari Abdullah, who is also Sabah PKR chief, said he
was happy "that justice is done".
"It was not a moral way of conducting election. Our candidate came at 9.35am and
his paper was rejected despite the advice of the Election Commission.
Asked whether Andipai would be given priority to contest the seat should there
be a by-election, Ansari said the party leadership would make the final decision
on the matter.
Kurup, who is Deputy Rural and Regional Development Minister and Parti Bersatu
Rakyat Sabah president, could not be reached for comment.
However, his leading counsel, Alex Decena, said Kurup could appeal the judgment.
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