PUTRAJAYA (Jan 3): The Kimanis nomination day tomorrow and by-election on Jan 18 will proceed as scheduled, as the Federal Court today dismissed Datuk Seri Anifah Aman's review of the Dec 2 decision made by another panel.
This is the first review heard by the apex court on an election petition case, as no previous case had ever gone to review.
Federal Court judge Datuk Mohd Zawawi Mohd Salleh, who led the panel, said that while the bench recognised the purported biasness of judges was normally an appealable matter, the bench cannot agree that this case had passed the threshold required under Rule 137 of the Rules of Federal Court to grant a review.
"The power to grant a review is very limited and is given under exceptional circumstances. Biasness is certainly one of the grounds for review. However, after hearing the submissions we find it failed to meet the threshold of Rule 137.
"We are not persuaded that bias had been established on the four judges (who heard the appeal on Dec 2). When they were part of the bench in the hearing of the appeal, they were hearing on the issue of non-compliance of election law (to order the Kimanis case to go on trial).
"There [was] no specific finding of facts in the first instance. On the second hearing (on Dec 2), the appeal was heard in its substantive (the whole case). Bias has not been established in the present appeal. We are mindful to dismiss the case with costs," said Justice Mohd Zawawi.
Zawawi's bench also comprises Federal Court judges Datuk Abang Iskandar Abang Hashim, Datuk Vernon Ong, Datuk Abdul Rahman Sebli and Datuk Zabariah Mohd Yusof.
After deliberation on costs, the panel ordered the former foreign minister to pay costs of RM100,000 each to the Election Commission (EC) and Parti Warisan candidate Datuk Karim Bujang.
Karim is slated to contest in the by-election tomorrow for Warisan, while Barisan Nasional is represented by Datuk Mohamad Alamin.
On Dec 2, it was reported that the apex court bench led by Chief Justice Tan Sri Tengku Maimun Tuan Mat had dismissed Anifah's appeal therefore triggering the by-election.
Besides Justice Tengku Maimun, the other members on that panel were Court of Appeal president Datuk Rohana Yusof, Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Datuk Seri David Wong Dak Wah and Federal Court judge Datuk P Nalini.
Anifah (pictured) was represented by Tengku Fuad Tengku Ahmad, who raised the issue of biasness on the presence of the four judges sitting on the Dec 2 bench as they had previously heard Karim's appeal when his petition had been struck out by the Election Court in Sabah.
Karim's lawyer Frederick Chang in his submission said the issue to have the judges removed on Dec 2 was also heard and dismissed by the panel.
"Hence, they (Anifah) [are] having a second bite at the cherry with this appeal," he said.
Lawyers Abdul Fikry Jaafar Jaafar Abdullah and Faizal Sarbi represent the EC and its returning officer.
In the general election on May 9, 2018, Anifah purportedly won the Kimanis seat via a razor-thin margin of 156 votes when he garnered 11,942 votes against Karim's 11,786. Pakatan Harapan's Jaafar Ismail garnered 1,300 votes.
Tengku Fuad on commenting on today's decision said this was the last avenue that his client had, and Anifah respected the apex court's decision.