A fresh election will be held for the Kota Siputeh state seat in Kedah after it was declared vacant by the Kuala Lumpur High Court today.

Justice Alizatul Khair Osman Khairuddin ruled that the seat was vacated after Umno's incumbent assemblyperson Abu Hassan Sarif absented from two state assembly meetings this year.

azlan Following the High Court decision, Abu Hassan will be barred from attending the state legislative assembly sitting tomorrow.

More significantly it also means the Election Commission (EC) will have to call for a by-election within the next 60 days, pending an appeal to the Court of Appeal.

In her decision, Justice Alizatul held that the EC had acted irrationally and its decision that Abu Hassan was still the assemblyperson for Kota Siputeh and the state seat was not vacant, ought to be quashed.

"While I agree that the EC has the power to determine the casual vacancy, I do not think the EC can override the power of the speaker under Article 51 of the Kedah Constitution," she said in her decision delivered at 5.30pm.

"In my view, Article 51 sets out the conditions which render the seat to be vacant and the first respondent (Abu Hassan) had satisfied the conditions," said Alizatul in allowing the judicial review filed by Kedah Speaker Abdul Isa Ismail.

Order sought against EC for by-election

Abdul Isa, represented by leading counsel Sulaiman Abdullah, filed the judicial review on Oct 1, after the EC decided that there was no vacancy of the Kota Siputeh seat and that Abu Hassan was still the assemblyperson.

NONE Abdul Isa wanted the court to declare that Abu Hassan ( left ) was no longer the assemblyperson following his failure to attend two consecutive sittings of the state assembly on April 19 and Aug 9 this year, and that the seat was vacant.

In his application, Abdul Isa also sought an order for the EC to call for a by-election.

Article 51 of the Kedah constitution provides that if any member of the state legislative assembly is absent from the assembly without leave of the speaker for two consecutive meetings, his seat shall become vacant.

In her decision today, Justice Alizatul said it was not disputed that Abu Hassan did not obtain leave from the speaker to absent from two consecutive meetings, and had only issued his medical certificate to the speaker on Aug 10, 2009.

"The speaker has the power under Article 51 of the Kedah constitution to grant leave and he did not act unreasonably in rejecting the medical certificate dated Aug 10, 2009 after knowing that the assemblyperson had also attended a function on the same day," she said.

azlan Justice Alizatul held that the EC had acted illegally in accepting the medical certificate issued by Abu Hassan as being the reason for his absence.

The EC had also made an irrational decision in deciding that Article 51 could only be invoked after the speaker referred the matter to the Rights and Privileges Committee, she added.

"There is no mandatory provision imposed on the speaker to do so because the decision to refer the matter to the committee or not is his discretion since leave matter is not a privilege conferred on an assemblyman," she reasoned.

EC's stay application on Friday

Alizatul also held that the EC had misconstrued the meaning of "two consecutive meetings" under Article 51 as two meetings of two separate sessions.

"I agree with the applicant counsel that the first respondent (Abu Hassan) was absent from two consecutive meetings in one uninterrupted session," she said.

The court today also fixed Friday to hear the EC's application for a stay of the by-election order.

Outside the court, Abu Hassan told reporters that he accepted the decision and would let his counsel, Hafarizam Harun, to pursue with an appeal to the Court of Appeal.

EC was represented by senior federal counsel Kamaluddin Md Said.

The Kedah state assembly will convene tomorrow to pass the PAS-led state government's budget for next year.

On Sept 1, EC chairperson Abdul Aziz Yusof, declared that Abu Hassan remains the Kota Siputeh assemblyperson, despite not showing up for two consecutive sessions of the Kedah state assembly sitting.

In another development, EC's deputy chairperson Wan Ahmad Wan Omar said that it will seek advice from the Attorney-General on its next steps.

"This is the first time such a decision has been made. We need to ask the Ag what to do next. We want to know if we have any grounds to appeal," he said.

Meanwhile in Alor Setar, the Kedah Umno deputy chief Ahmad Bashah Md Hanipah said Abu Hassan will not be attending the assembly session tomorrow.

- Bernama