KOTA KINABALU: The Election Court here yesterday dismissed a preliminary objection raised by BN-PBS Kota Marudu winner Datuk Maximus Ongkili against defeated Parti Keadilan Rakyat (PKR) candidate Datuk Maijol Mahap on the issue of non-compliance with court order.
Justice Yew Jen Kie made the order after hearing submissions from Ongkili’s solicitor, Raymond Szetu and counsel Fulton Mark Sitiwin for Mahap.
Yesterday was supposed to be the first day of the petition trial.
In her verdict, she held among others that the petitioner (Mahap) did not have a history of non-compliance with the court’s directions.
Yew also ruled that the purpose of witness statements as what she understands is to facilitate trial to precede expeditiously and this is not for the purpose of letting the opponent (Ongkili) to know in advance the evidence to be given or to make further investigation.
She also held that the respondent (Ongkili) should know the case they would be facing and to prepare their defence. In the case, there are sufficient facts and particulars being pleaded to alert the respondents of the case that they are to meet.
Apart from that, she also ruled that the purpose of a bundle of documents is to enable the parties to go through the documents in advance so that they can determine as to the status of each document whether they are to be agreed or disputed.
“Election petition is a public interest case which in my view should not be struck out on the issue of non-compliance or so long as its documents will not result in miscarriage of justice. It has not been shown that non-compliance with the court’s directions has resulted in the miscarriage of justice,” she pointed out in dismissing the application.
On August 13 this year, the same court had allowed a preliminary objection by Ongkili to strike out the petition by Mahap, who is seeking to nullify the result of the Kota Marudu parliamentary seat.
In allowing Ongkili’s preliminary objection, Yew had struck out Ongkili from the petition.
She ruled that the petitioner did not plead enough facts on the allegation of corrupt practice against Ongkili in his petition.
Yew then ordered Mahap to pay cost of RM5,000 to Ongkili.
However, on that day, Sitiwin contested the application made by Ongkili’s co-counsel Chin Teck Ming for Ongkili’s name to be omitted from the election petition.
Sitiwin pointed out that any outcome from the trial as if the election result was declared invalid, it will go back to the first respondent (Ongkili).
Yew, who is a High Court judge based in Kuching, ruled that even though Ongkili was struck out from the petition his name will remain as it depends on the evidence adduced in the trial.
Mahap had filed the petition on June 12 this year, naming Ongkili as the first respondent, Returning Officer (RO) for Kota Marudu parliamentary seat and the Election Commission (EC) as the second and third respondents respectively.
In the May 5 general election, Mahap was involved in a four-cornered fight with Ongkili, Majamis Timbong of STAR Sabah and Yuntau Kolod @ Kuntau Kolod of SAPP.
Ongkili won the seat by 842 votes majority. He garnered 15,168 to Mahap’s 14,326 while Majamis and Yuntau received 2,228 and 444 respectively.
Senior Federal Counsel Zawawi Ghazali and Rahazlan Affendi Abdul Rahim represented the second respondent.
The trial will proceed today.