Chief Justice Tun Mohamed Dzaiddin Abdullah, who sat with Chief Judge of Malaya Datuk Ahmad Fairuz Sheikh Abdul Halim and Federal Court judge Datuk Abdul Malek Ahmad, unanimously dismissed Yong’s application with costs.

“We are of the unanimous view that granting leave under Section 96 (b) of the Courts of Judicature Act 1964 does not arise. In any case, even if leave is given, we find there is no prima facie case of success in the appeal,” Justice Mohamed Dzaiddin said.

He said that the court was of the view that there were clear authorities which held that any decision of the Election Court was not appealable to the Court of Appeal.

On June 6, the Court of Appeal dismissed with costs Yong’s appeal to set aside the decision of the Election Court that he has committed corrupt practice, an offence under the Election Offences Act 1954, in the 1999 state election in the Likas constituency.

In a majority decision, Court of Appeal judge Datuk Abdul Hamid Mohamad ruled that the decision of an Election judge was not appealable to the Court of Appeal.

On June 8, last year, the Election Court ruled that Yong had committed corrupt practice, an offence under Section 11 © and (d) and Section 32 of the Election Offences Act in the state election in the Likas constituency.

The Election Court made the ruling following the application by former Parti Bersekutu president Datuk Harris Salleh for a court order to nullify the election result.

In his petition, Harris alleged that during the 1999 election, Yong resorted to unfair practice by putting up four billboards in the vicinity of the Likas polling station, constituting an offence under the Election Offences Act 1954.

The Election Court then ruled that the result of the 1999 state election for the Likas constituency was null and void, paving the way for a by-election.

The effect of the landmark judgment, among others, disqualified Yong from contesting in the subsequent by-election on July 21, last year as provided for under Section 31 of the Election Offences Act.

However, on July 4, High Court judge Datuk Richard Malanjum (now promoted to Court of Appeal judge) allowed Yong’s application to stay the execution of the Election Court decision, thus enabling Yong to contest in the Likas by-election.

Yong retained the seat on a Barisan Nasional (BN) ticket with an increased majority of 7,541 votes, defeating Parti Bersatu Sabah (PBS) candidate Dr Chong Eng Leong, Keadilan candidate Christina Liew and independent Joshua Kong.

In his judgment yesterday, Justice Dzaiddin also said that after considering the majority and dissenting judgment of the Court of Appeal in Yong’s appeal, the court (Federal Court) was inclined to agree with the majority judgment.

When met by reporters after the pronouncement of the decision, Yong said that his Likas seat and the Gaya seat were not yet affected by the Federal Court’s decision as there was another petition, brought by Dr Chong Eng Leong to nullify the result of the July 2001 Likas by-election, still pending.

On whether the decision would affect his political career, Yong said that “in the worst case, I would not be able to contest for parliament or state seat for five years”.

“In football language, I got a red card and will be banned for contests but my political career will not end there,” he said.

Earlier, Australian Queen Counsel Gavan Griffith who represented Yong submitted that there were five questions of law to be determined by the Federal Court.

Among the questions was whether the decision of an Election judge exercising jurisdiction under the Constitution, Article 118, and the Election Offences Act 1954, Part VII, a decision of the High Court or a judge thereof within Article 121 (1B) (a) of the Federal Constitution.

Another alternative question was whether the Federal Court should exercise its inherent jurisdiction under Rule 137 of the Rules of the Federal Court 1995 and/or the common law to prevent and/or correct injustice in the event the (Federal Court) rules that the Court of Appeal has no jurisdiction to hear an appeal against the decision of an Election judge.

Griffith said that the Court of Appeal judgments have raised constitutional questions and it was appropriate for those questions to be resolved by the Federal Court.

Counsel Ansari Abdullah who appeared for the defendants, Harris Salleh and Chong Eng Leong, submitted that before Yong could be allowed to argue on the issue that Article 121 (1B) of the Federal Constitution confers jurisdiction on the Court of Appeal to disturb the final order of an Election judge which has been established by a long line of judicial decisions as not appealable, he has to show that he has the right to appeal.

He said that the right to appeal was not a fundamental right that was conferred by the Federal Constitution but it was a right to be expressly conferred by statute. – Bernama