Abu Hasan Sharif, whose position as Kota Siputeh assemblyperson in Kedah is being disputed in the state assembly, can attend the state assembly budget sitting tomorrow.

This follows the Federal Court setting aside today a stay order issued to Kedah speaker Abd Isa Ismail by the Court of Appeal less than two weeks ago to continue to bar Abu Hasan from attending assembly sittings.

The order by the Court of Appeal on Nov 2, which was unanimous, was given under special circumstances following fears that the Federal Court may overturn the Court of Appeal's position
that declared Abu Hasan is still an assemblyperson.

Today's decision was unanimous, with the three-member Federal Court panel led by Chief Judge of Malaya Zulkefli Ahmad Makinuddin ruling that the court cannot stay a declaratory order and there was no special circumstance for the appellate court to grant the order.

"Following this, the stay order by the Court of Appeal is set aside," Justice Zulkefli said.

The other judges on the panel are Hashim Yusof and Ahmad Ma'arop.

Barred from legislature for 21 months

Abu Hasan, who is a BN representative (from Umno) in the Pakatan Rakyat-controlled Kedah state assembly, was present at today's proceeding and said he would attend tomorrow's sitting as Kota Siputeh assemblyperson.

NONE"I have not been allowed to attend the assembly for 21 months, following the decision by the High Court in Kuala Lumpur in 2009 that declared the seat vacant," he said.

"I will return and represent the constituents of Kota Siputeh in the assembly," Abu Hasan added.

His lawyers, Firoz Hussein Ahmad Jamaluddin and Mohd Hafarizam Harun, hoped the Kedah assembly speaker would allow Abu Hasan in without causing any problem.

"Please respect today’s court decision," Hafarizam said

Hafarizam told the court his client had been democratically elected by the people and barring him from attending the sitting would be a violation of democratic principles.

Earlier, Firoz Hussein argued in his submission that it has been court practice that a declaratory order cannot be stayed.

"The declaratory order is that he is still the Kota Siputeh assemblyperson and that is why he should be allowed to attend," he said.

There were no special circumstances, Firoz Hussein pointed out, because according to Article 74, whatever takes place in the Kedah assembly cannot be questioned by the court.

In August this year, the Court of Appeal overturned the November 2009 decision of the High Court in Kuala Lumpur that Abu Hasan had been absent for two consecutive state assembly sittings without permission from the speaker and declared the Kota Siputeh seat vacant.

The Court of Appeal subsequently declared Abu Hasan to be the rightful assemblyperson for Kota Siputeh.

Special circumstances

Kedah assembly speaker Abd Isa had sought and obtained a stay order over fears that Abu Hasan's presence would raise questions on the validity of the assembly’s decisions, since the state budget for next year would be tabled tomorrow.

NONELawyer Edmund Bon said the Court of Appeal had recognised the special circumstances in the application when granting the stay.

"He has not been to the assembly for 21 months and the case management for the speaker's appeal is fixed for this Thursday. Why not wait for a few more months?" Bon asked.

He further submitted that if Abu Hasan was present in the assembly, it would bring the sitting and decisions made there to disrepute - if the Federal Court ruled otherwise and allowed the speaker's appeal.

The case has not been legally exhausted yet, Bon submitted.

Commenting on the decision later, Bon said they were disappointed.

"The appeal process has not been exhausted yet, and Abu Hasan's status as assemblyperson is still open to challenge.

"We will abide by the court’s decision and pursue the speaker’s appeal expeditiously," he added.

'Unprecedented step'

Bon said the apex court had taken an unprecedented step to hear this appeal against the stay via a review and not the normal route of having leave (permission).

In the Federal Court, an appeal is not directly heard as leave or permission has to be gained by the panel.

Bon said Abu Hasan’s lawyers made the application under Rule 137 of the Rules of the Federal Court to review its decision and not via Rule 96, which is the normal way.

“We have made a preliminary objection for this court to hear this appeal as this was made under the provision to review. Technically, the Federal Court can review another apex court panel’s decision, but not an appeal from the Court of Appeal,” he said.

“The ruling made in granting a review provides litigants another avenue to come to the apex court rather then obtaining leave. A new precedent has been made,” he commented.

Following this, Bon, before the end of today’s proceeding, had applied the judges to write the grounds for them to hear today’s case via a review.

The court today made no order as to costs.