Yamani keeps seat as case is thrown out
Published on: Tuesday, April 09, 2019
By: David Thien
KOTA KINABALU: The amended 14th General Election petition against former Sabah Umno youth chief Yamani Hafez Musa (pic), was struck out with no order as to costs by Election Court Judge Azhahari Kamal Bin Ramli, Monday, on grounds that the plaintiff had breached the court’s order on submission of documents relevant to her claims.
The amended petition was filed by Parti Warisan Sabah’s Sipitang Parliamentary Constituency candidate Noor Hayaty binti Mustapha (plaintiff), who alleged among other things, that the Election Commission’s Ballot Paper Statement (Form 13) and Statement of Polling (Form 14) were not furnished properly to her party for their perusal.
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Noor Hayaty also wanted to nullify the election of the 1st Respondent Yamani Hafez Musa as Sipitang MP for corrupt practice by alleging that he handed out cash to voters in the constituency, besides intimidating voters and inducing or compelling them to vote for him.
The other respondents included Matlin Bin Dullah the Returning Officer of the Election for the constituency and the Election Commission of Malaysia. Yamani was not present in court.
His counsels comprised Jeyan Marimuttu, Azhier Farhan Arisin, Rizwandean Bukhary and Mohd Reduan Datuk Aklee.
Lead counsel Japar B. Esteban and his lawyers representing the Elections Commission said they were prepared to defend the integrity of his client vigorously.
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Noor Hayaty’s lead counsel Chung Jiun Dau had asked the judge to consider an adjournment of the trial dates from April 8-12 to May 7-10.
Chung said his client did not have sufficient time to compile documents requested in the discovery i.e. Form 13 and Form 14 for the purpose of today’s trial.
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“Although the court’s direction is to proceed with the trial in respect of corrupt allegation first, it would not be practical to split the evidence by these witnesses. Therefore we are requesting that these trial dates be vacated, so that it gives sufficient time to prepare the Bundle of Documents, Witnesses Statements accordingly.”
However, Yamani’s lead counsel Jeyan objected, saying he did not receive any witness list or documents from the petitioner yet, suggesting that the petitioner was not even prepared to start the trial.
“The 1st Respondent (Yamani) is ready and prepared to proceed with the trial and did indicate that we have written statements ready to be exchanged on April 1, 2019.
“However, the petitioner did not offer any response, neither did they file any witnesses statements and bundle of documents in respect of other allegations, and hence did not comply with the directions by the court to file and exchange on April 1, 2019.
“The trial could still continue and the petitioner, therefore, ought to start with the first witness today.”
Sarawak-based Judge Azhahari Kamal then called for a recess at 10.20am to consider the development and told the court that he would make a ruling after 10.40am.
When court resumed, Justice Azhahari ruled that the application for adjournment was disallowed and ordered the petition struck out with no order as to cost.
The reasons were that the law states the election petition must be heard and concluded within six months from the date of presentation of the election petition. Hence, any adjournment application must be viewed strictly to the directions given by the court.
Azhahari said he took into consideration that the Order for Discovery was only granted last April 2 afternoon to the petitioner’s counsel for their work, but he stressed that the case should be settled within the allowable six months period after the last appeal.
“After carefully perusing the Court Management System, the court found the petitioner did not give any good reasons for the postponement. In particular, the petitioner failed to file any documents for trial and witnesses statements despite the court’s direction on March 8, 2019 to file Bundle of Documents and Witnesses Statement seven days before the trial date.
“Hence, the court found the petitioner breaching the court’s order and not ready to proceed with the trial.”
Chung told reporters later he was actually prepared to start the trial but the judge did not ask if he was willing to start the trial if his adjournment request was not allowed before dismissing the case. He said this point would be a ground for appeal by his client.
On May 9, 2018, Yamani won the Sipitang parliamentary seat after garnering 12,038 votes, beating Noor Hayaty from Parti Warisan Sabah who obtained 11,186 votes, by an 852-vote majority in a three-cornered contest. Dayang Aezzy Liman of USA-Parti Harapan Rakyat Sabah only managed 1,547 votes.
Yamani was sworn in as Sipitang MP in Parliament on Jan. 7. A graduate of the University of Canterbury, Yamani managed to fight off the election petition challenge until the Federal Court which directed the Election Court to hear the case of the election petitioner’s claim that Form 13 and 14 were not signed by their polling agents and not furnished to the Petitioner’s party.
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