Petition challenging victory of Sipitang MP struck out
KOTA KINABALU: Parti Warisan Sabah candidate for Sipitang parliamentary seat had her election petition challenging the victory of former Sabah Chief Minister’s son, struck out for the second time by the Election Court here but this time it was due to her application to postpone the trial proper being disallowed.
Justice Azhahari Kamal Ramli, who heard the adjournment application by the petitioner Noor Hayaty Mustapha in an open court proceedings, had disallowed it and later struck out the petition with no order as to costs, when the petition came up for first day of trial, yesterday.
The court proceedings stood down for 20 minutes and when the court resumed, the judge delivered his decision and held that he could not help but to say that the petitioner was not ready for the trial and in the circumstances, he disallowed the application for adjournment and ordered that the petition be struck out.
The judge explained that an election petition must be concluded within six months.
“Hence, all directions must be strictly complied with. I am mindful of the fact that the order for discovery (in this petition) was only ordered on April 2. However, when the application was filed, the petitioner should be prepared to comply with the court’s directions and to proceed with the trial as the trial dates have been fixed much earlier,” the judge held.
“I had inquired whether the petitioner had any witnesses, but was told that if the court were to proceed today, the trial would be conducted by piecemeal.
“In my opinion, this is not a good
Hence, all directions must be strictly complied with. I am mindful of the fact that the order for discovery (in this petition) was only ordered on April 2.
ground for adjournment, bearing in mind that the parties will be at liberty to recall any witnesses and to file Supplementary Bundle of Documents in the course of the trial,” said the judge.
The judge further said as of yesterday, he observed that there was no Bundle of Documents filed by the petitioner as well as the witness statements notwithstanding the directions that have been given earlier.
“I can’t help, but to say that the petitioner is not ready for the trial,” ruled the judge.
In her impromptu postponement application, Noor Hayaty requested for this whole week trial dates from April 8 to 12 be vacated and to be replaced with May 7 - 10.
Lead counsel for Noor Hayaty’s petition, counsel Chung Jiun Dau, submitted that during the course of arguments on the discovery applications, the judge had initially stated that fresh directions would be given on ruling of the discovery applications.
The counsel explained that it was not the case that they deliberately did not comply with previous directions, but in light of the pending discovery applications, they could not complete the necessary documents as well as the witness statements.
He further argued that as they had stated earlier, those discovery documents were only obtained Friday evening (April 5) at about 6 to 7pm, so they required time to go through and get this evidence into the witness statements.
“So, the purpose of requesting this rescheduling or rather replacement of dates this week, is to essentially ensure that the trial can commence and continue smoothly because, as I said, certain witnesses will be giving evidence on different aspects and we cannot be giving evidence piecemeal,” the counsel further explained.
In reply, lead counsel for Yamani Hafez Musa, counsel Jeyan Marimuttu, recalled that the court’s directions when this petition was scheduled for trial were that the witness statements of the petitioner were to be filed and served seven days prior to the commencement of trial.
“Until this morning (yesterday), we have not received any witness statement. We did indicate to the petitioner’s advocate that we have witness statements ready for exchange on April 1, however, we did not receive any response.
“Our instructions are to object to the application to vacate the trial date for this week, we submit that the discovery and inspection of documents though conducted last Friday, will not by itself have any bearing on the continuation of trial,” Jeyan said.
Meanwhile, lead counsel for Sipitang returning officer ( RO) and Election Commission ( EC), counsel Japar Esteban said they were ready to proceed with the trial, however, in view of the petitioner’s request, their position was that they will leave it to the court to decide.
In her petition, which was filed on June 18, 2018, Noor Hayaty had named Tan Sri Musa Aman’s son Yamani Hafez, Sipitang RO and EC as the first, second and third respondents, respectively.
Noor Hayaty filed her petition questioning the results, claiming that the agents or appointees who were allegedly appointed by Yamani Hafez, whether through candidate representative or otherwise, and/or BN to allegedly carry the tasks set out, including distributing and giving money to the registered voters on behalf of Yamani Hafez or BN during the said polling day in order to induce the said voters to vote for BN.
She also claimed that threatening, intimidation, undue influence and bribery had so extensively prevailed that said alleged acts may be reasonably supposed to have a affected the results of the said election in that Hafez Yamani had won by a majority of 852 votes against her.
Apart from that, Noor Hayaty also claimed that the alleged noncompliance and misconducts by the RO and EC and/or its agent/ appointee causing Noor Hayaty and her election agent or counting agent to rely on informal figures to draw up a comparison with the official results especially since Form 13 ( Ballot Paper Statement) was not furnished at all the polling channels.
On April 2, the same court granted an order in respect of Noor Hayaty’s discovery application that the EC shall cause the envelope affixed with security tapes containing ballot papers in Form 13 and statement of the poll in Form 14, ballot paper statement in Form 13 as well as statement of the poll in Form 14 to her to be produced in the trial proper and that was done on April 5 at the EC’s office.
On February 18, Noor Hayaty’s election petition was ordered for a trial after the Federal Court in Putrajaya set aside the Court of Appeal’s decision of affirming the Election Court in Kota Kinabalu’s decision. The Election Court here had on October 15, 2018, struck out the same petition with costs.
Noor Hayaty was also represented by counsels Mohammed Fareez Mohammed Salleh and Melanie Tann Mei Yan, Yamani Hafez was also represented by counsels Rizwandean Bukhari M. Borhan, Mohd Reduan Datuk Aklee and Azhier Farhan Arisin while counsels Mohd Syahrulnizam Mohd Salleh and Shahlan Jufri also represented RO and EC.
Justice Azhahari Kamal Ramli