Ladang election petition: Judgment reserved

The Federal Court today reserved judgment on whether it should allow the election petition by Mahari Endut to call for a by-election in the Ladang state seat in Terengganu, order a recount of postal votes or dismiss the application.

Chief Judge of Sabah and Sarawak, Richard Malanjum, who sat with Augustine Paul and Zulkefli Ahmad Makinuddin, made the decision after hearing submissions. The court did not set a date to deliver its ruling.

Senior lawyer Muhammad Shafee Abdullah (right) represented Mahari, a voter in the Ladang constituency in Kuala Terengganu and Terengganu Umno's Lorong Kemunting division head.

He named returning officer Mat Razali Kasim, the Election Commission (EC) and state assemblyperson Tengku Hassan Tengku Omar of PAS as respondents.

Shafee pointed out that the main issue centres on 127 postal votes rejected by Mat Razali, given that Tengku Hassan had won the seat by a mere 31 votes.

He said the EC clerks could have been negligent during the marking or issuance of postal votes by failing to write down the serial numbers on Envelope A and Form 2, resulting in the rejection of the 127 votes during the sorting stage.

Shafee also claimed there had been non-compliance by the assistant returning officer in rejecting the postal votes at the sorting stage, with his decision being final and not open to challenge.

Counsel said the apex court could take one of two actions if it agrees with his submission that there was irregularity in the EC’s actions.

"(The court could) call for a by-election or, should the court grant relief to my client, (it) can allow greater scrutiny of the 127 postal votes which were rejected by the commission," said Shafee.

On Sept 22, the Election Court had dismissed Mahari's petition with costs, finding that he had failed to prove his case on balance of probability.

The court had heard testimony from eight witnesses for the petitioner and seven witnesses for the respondents.

Ladang is one of the four state seats in the Kuala Terengganu parliamentary constituency.

In the March 8 general election last year, Tengku Hassan won the seat with 6,723 votes against Wan Hisham Wan Salleh of Barisan Nasional, who obtained 6,692 votes.

(Wan Hisham is the elder brother of Wan Ahmad Farid who is facing a three-way contest in the Jan 17 by-election in Kuala Terengganu.)

‘No negligence by EC’

Senior federal counsel Kamaluddin Said, appearing for Mat Razali and the EC, submitted that Mahari had failed to include Feb 28 as the date of issuance of postal votes, as is required by law.

"Since the Election Court is created under statutory law, this special jurisdiction must be strictly observed," he said.

Kamaluddin submitted that the election judge had heard all the documentary evidence and there had been no objection from either Wan Hisham or his agents.

"These findings of facts were based on evidence by an election officer and supported by Tengku Hassan's agent.

“The judge had correctly decided on the rejection of the 127 votes because, during the trial, it was proven that the serial number was written on Form 2 and Envelope A. The allegation of negligence by the EC officers is baseless and is not corroborated by evidence."

Counsel Wan Mutalib Embong, representing Tengku Hassan, told the court that the burden should be on the appellant to prove any irregularity.

"It is submitted that Mahari has failed to prove anything for the apex court to allow the appeal," he said.

Wan Mutalib (left), who is also Terengganu PAS deputy commissioner, said Mahari’s application was made after the stipulated time of 21-day objection period and should not have been entertained.

"Furthermore, there is evidence from agents of both candidates in commending the EC officers for doing their job well and under strict compliance. This is not politics, but justice and transparency demanded by all political parties including the opposition.”

Wan Mutalib said the returning officer has the power to reject any votes and that this discretion must be exercised carefully.

“Since, there were no serial numbers and the numbers did not tally, the returning officer was correct in rejecting the postal votes," he added.