PUTRAJAYA: The Court of Appeal yesterday granted the Election Commission’s (EC) application for a stay of the Kuala Lumpur High Court’s order that a by-election be held for the Kota Siputeh state seat, pending the EC’s appeal proper at a date to be fixed.

Court of Appeal Judge Datuk Sulong Mat Jeraie, who sat with Judges Datuk Kang Hwee Gee and Datuk Abdul Aziz Abdul Rahim, announced the panel’s unanimous decision after almost two hours of deliberation.

Sulong said the court was empowered to grant any interim order to “preserve the status quo”, adding that granting the stay could “prevent an unnecessary by-election” and save public funds.

“No parties will suffer any prejudice if the stay was granted pending the appeal,” Sulong said.

The Court of Appeal judge also said it was imperative to avoid a situation where an elected representative would be deprived of his office if the Court of Appeal were to reverse the High Court’s decision.

On Nov 16, Kuala Lumpur High Court Judge Datuk Alizatul Khair Osman Khairuddin declared the Kota Siputeh seat vacant after ruling that its incumbent Datuk Abu Hassan Sarif no longer held the seat for failing to attend two consecutive sittings of the Kedah state legislative assembly without leave.

The EC had taken the stay application to the Court of Appeal after Alizatul, who sat at the High Court’s Appellate and Special Powers division, on Monday declined to grant the EC a stay of its order that a by-election be called.

Kedah Speaker Datuk Dr Abdul Isa Ismail filed the suit against Abu Hassan and the EC, challenging the EC’s decision not to call for polls after it accepted Abu Hassan’s medical certificate purportedly justifying his absence from the sittings.

The EC and Abu Hassan were racing against time in seeking the stay as the High Court had given the EC until today to issue the writ of election for the by-election.

Senior federal counsel Datuk Kamaludin Md Said, acting on behalf of the EC, had earlier submitted that there would be injustice against the EC and the public if the Court of Appeal were to refuse the stay.

Kamaludin also said that if the Court of Appeal were to refuse a stay, the “tedious” and expensive process of election would commence which could potentially lead to competing claims for the state seat should the Court of Appeal later rule in favour of Abu Hassan.

In reply to Kamaludin, Abdul Isa’s lead counsel Sulaiman Abdullah argued that the EC would not be prejudiced if it had to hold a by-election because it was the EC’s job.

“If you stay the (High Court’s) order, you purport to stay the operation of the constitution,” Sulaiman said, submitting that the state and federal constitutions required elections be held once a seat was declared vacant.

Addressing Sulaiman’s argument in the decision, Sulong noted that the stay granted was not in respect of any particular provision of constitution but on a court order.

At Sulaiman’s request, Sulong also ordered that the appeal proper be heard expeditiously.

Speaking to reporters later, counsel for Abu Hassan Datuk Mohd Hafarizam Harun said the next step would be to obtain Alizatul’s grounds of judgment and file it with several other documents before the Court of Appeal can fix a date to hear the appeal.

Kota Siputeh will stage the 10th by-election since the 12th general election last year if Abu Hassan fails in his appeal.

Abu Hassan won the Kota Siputeh seat after he defeated PAS candidate Ismail Wan Teh with a 495-vote majority during the general elections last March.