Another By-Election, Another Victory for Pakatan Rakyat

Court declares Kurup's victory in Pensiangan null and void - Sun

KOTA KINABALU (Sept 8, 2008):

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 one.

"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 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 yesterday.

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. 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 at 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 returning officers like Bubudan are 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."

He said in this particular 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 nomination papers.
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He said in the event that a large number of people wanted to nominate themselves, "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."

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."

Andipai's leading counsel, Ansari Abdullah, who is also Sabah PKR chief, said he was happy "that justice is done".

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. -- Bernama