hearing. This would be especially so if one adopted a “wait-and-see” approach such as that
advocated by Mr Ravi, where one would actually utilise ex post facto rationalisation after ascertaining
what the date of the substantive hearing would be in order to argue that there has been no delay.
Even more pertinently, as Mr Chan (very persuasively, in my view) put it, if time could be extended,
where would one draw the line? What if further excuses were given by the plaintiff? This is precisely
why a speedy determination in the manner stated by the Privy Council in the Devan Nair case ([25]
supra) centred on a strict adherence to the timelines which will, ex hypothesi, result in the certainty
that is crucial in the context of elections.
94
I turn now to the precedents proffered on behalf of the plaintiff. In contrast, and as I have
already noted earlier in this judgment, Mr Ravi could muster but one solitary precedent which was in
the plaintiff’s favour. This is of course the decision of the Malaysian High Court in the Sulaiman case
([50] supra). This decision was in fact considered by Lee J in the Chong Thain Vun case ([25] supra),
and this is what the learned judge had to say about the case (at 74):
I think I should mention the case of Sulaiman v. Choong Yoon Chong. There the petitioner paid
sufficient deposit within the time specified but the deposit was paid to the registrar of the
Supreme Court instead of the proper officer, that is, the Supervisor of the Town Council
Elections. Respondent applied for the election petition to be dismissed on the ground that no
deposit by way of security for costs had been made as prescribed by the Election Petition Rules,
1954. Smith, J. thought that the action which the judge should take was entirely discretionary.
He considered that as sufficient security had been paid and that there had been sufficient
compliance with the spirit of the regulations it would be inequitable to refuse the petitioner a
hearing of his petition. He therefore dismissed the application. That case can be distinguished
from the two petitions under consideration. The Registrar of the Supreme Court is an officer of
the court and he made the mistake of accepting the deposit when he should have directed the
petitioner to make the payment to the proper officer. Although Smith J. did not say so in so many
words his approach seems to suggest that where the mistake was that of the court, the blame
should not fall on the petitioner. The question of insufficiency of security did not arise. Also the
question of time did not arise. Further that case was decided before the decision of the Privy
Council in Devan Nair v. Yong Kuan Teik. [emphasis added]
95
As alluded to above, Mr Chan argued that Lee J had effectively overruled the Sulaiman case,
although the learned judge had sought to distinguish this decision on the two grounds set out in the
above quotation. Indeed, Lee J also referred to the subsequent Privy Council decision in the Devan
Nair case, thus buttressing Mr Chan’s point that Lee J was not really sympathetic to the decision in
the Sulaiman case.
96
Following from my analysis of the language and context of r 13 above (in particular, of
paras (1) and (4) thereof), I do not, with respect, think that the Sulaiman case ought to be followed.
Quite apart from Mr Chan’s point that it stands alone in the entire jurisprudence of elections law in
Malaysia, I would myself have arrived at the opposite conclusion from my own analysis of r 13 without
more, which analysis I have set out in some detail above. Whilst I acknowledge that the Sulaiman
case dealt (as Lee J alluded to in the Chong Thain Vun case (see [94] above)) with a different issue,
a central thrust adopted by Smith J in the Sulaiman case (and which was an integral part of his
overall decision) was that the equivalent of r 13 of the PER was directory rather than mandatory (see
at [50] above). To that extent, and for the reasons I have already set out above, the Sulaiman case
is wrong and ought not to be followed.
General principle
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