Published on: Tuesday, August 20, 2013
Judge Datuk Yew Jen Kee made the ruling to hear the petition, filed by PKR candidate Datuk Maijol Mahap, after striking out a preliminary objection by the respondent on grounds that it should be filed at least seven days before the hearing date.
Mahap had named Energy, Green Technology and Water Minister Datuk Seri Dr Maximus Ongkili, the victor of the Kota Marudu seat, as the first respondent, and Lovita Koisun and the Election Commission (EC), as the second and third respondent, respectively.
Kuching-based Yew said an election petition is a public interest case which should not be struck out on mere procedural non-compliance or even non-compliance with the court's directions so long as it does not result in miscarriage of justice.
He said Maximus' counsel Chin Tek Ming had failed to prove that Maijol's counsel Fulton Mark Sitiwin's non-compliance with the court's directions had resulted in miscarriage of justice.
"I am mindful that election petition is a time sensitive matter.
Having said that, non-compliance of court's directions in this case will not delay the trial to such an extent as to render it is incapable of being concluded within the prescribed six months period," she said.
In the preliminary objections raised by Maximus' counsel, Chin said the petitioners have failed to, among others, submit the witness statements and other related documents prior to the trial.
"The purpose of witness statements, as I understand it, is to facilitate trial to proceed expeditiously. It is not for the purpose of letting the opponent party to know in advance the evidence to be given to make further investigation.
"The respondents should know the case they will be facing from the pleadings and to prepare their defence," said Yew.
Meanwhile, Sitiwin, in his opening address at the trial, said they will adduce evidence to support their contention that Regulation 25(12)(b)(ii) of the Elections (Conduct of Elections) Regulations 1981 was deliberately not observed by the Presiding Officer in 20 polling stations during the Kota Marudu election.
"The Presiding Officer in question did not comply with the law because they refused to provide the Petitioner's Polling Agent with a certified copy of the requisite Form 14 - the document which records the veto tally at the polling station.
"We will further adduce evidence that this repeated non-compliance was both instigated and directed by the Returning Officer for the Kota Marudu election," said Sitiwin.
He added that the evidence will show that the gross and repeated non-compliance affected, or could be supposed to have affected, the election results because the refusal to provide the certified copy of Form 14 to the petitioner denied the petitioner's election agent to properly verify and confirm the final vote count.
"It will be our submission that an election petition is not merely a matter concerning numbers.
It is a proceeding that is designed to set aside the results of an election where that election was conducted in a manner in which the election rules and procedures were continuously and repeatedly ignored.
"In such a case, the court must act in order to vindicate and restore the public's confidence in the transparency and accountability of our electoral system, without which our very notions of democracy are placed in peril," he said.
On Aug 13, Yew struck out Maximus from the petition. However, the court maintained his name as the first respondent since he is the interested party and the result against the second and third respondent will affect him.
Also present was Angkatan Perubahan Sabah (APS) president Datuk Wilfred Bumburing.