LUMPUR: Former Sabah Chief Minister Datuk Yong Teck Lee yesterday
failed to obtain leave from the Federal Court to appeal against the
Court of Appeal’s decision to uphold the Election Court’s
decision that he committed corrupt practice in the 1999 state
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
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
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
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
“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
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