KOTA KINABALU, April 8 — A lawyer for the petitioner in the Sipitang election petition has described the Election Court’s decision today to strike out the case as “unusual.”
Lawyer Chung Jiun Dau said he and his colleagues were actually ready for the trial but had suggested a postponement to Judge Azhahari Kamal Ramli in order to update documents and witness statements.
He said they had wanted to ensure that the witness statements prepared also referred to new documents that were only made available to them on Friday evening.
“He (Azhahari) assumed we could not proceed but we had only asked for rescheduling so that the trial can proceed smoothly, not that we could not proceed, let me emphasise that.
“A bundle of documents were made available to us Friday evening. Normally in a trial, you want to make sure all the documents are before the court because your witnesses have to refer to the documents.
“So we wanted some time to ensure that the witness statements prepared also refer to those new documents,” he said when speaking to reporters today.
Last Wednesday, the court had approved a request to check certain documents and ballot boxes used in the constituency but not the ballot papers.
The petition was filed by Parti Warisan Sabah’s Noor Hayaty Mustapha, who is seeking to nullify the results of the election last May which saw Yamani Hafez Musa, the son of former chief minister Tan Sri Musa Aman, winning by a 852 margin.
Chung also pointed out today that they had witnesses ready and they were present in court but they were not asked if they could go ahead.
“He (Azhahari) didn’t ask whether we were ready to proceed. He just said: ‘I disallow adjournment.’ He struck it out without even hearing whether we could proceed today.
“I think that is quite unusual,” said Chung, considered to be an experienced and well-known lawyer in the Sabah law fraternity.
Chung also said that he had suggested May 7 to 10 to hear the petition because the opposing lawyers would also be available on those days.
“We are not asking for a long delay. We suggested those dates because that’s when all the different counsels are available or else we could have started end of this week or even today very, very, strange,” he said.
Noor Hayaty in a statement later also said that her lawyers were allowed to inspect and obtained copies of certain documents from the Election Commission just before 7pm last Friday.
In view of the recent discovery of those documents, she said it would be better to move the trial this week closer to the next trial date so that the trial can proceed smoothly.
The court had in February this year set the trial for April 8-12, June 17-28, July 1-12 and July 23-31.
“The next trial dates after this week in April were from 17 June 2019 onwards — a period of more than two months later,” she said.
Azhahari decided to strike out the petition after deliberating on the postponement request citing failure to comply with court orders.
He said the grounds for adjournment was not good enough and there were no bundle of documents filed by the petitioner despite there being directions earlier.
“I can’t help but to say the petitioner is not ready for trial and in the circumstances I disallow the application for adjournment and order that the petition be struck out with no order to costs.”
Before this, the petition was struck out in October last year, but in February this year, the federal Court of Appeal remitted the petition to the Election Court for trial.
Noor Hayaty, who was present in court today, later said that she found the decision unfair and said that the opposing lawyers had not even requested for the case to be struck out.
“If the Election Judge had enquired, my solicitors would have informed that at least 15 witnesses had been arranged to give evidence this week. I believe that the way this election petition was struck was unfair and unjust,” she said.
She said she and her lawyers had not decided on whether to appeal the case yet.