Election petition: problem is not
law, but judges
By Kim Quek
15.06.2013
Ever
since Pakatan Rakyat declared its intention to challenge the results of the 13th
General Election (GE 13)– by far the dirtiest in
history – there has been a deluge of pessimism by lawyers over the chances of
success of such legal challenges. The
reasons for such pessimism range from the historical low rate of success of
election petitions (vast majority being struck off before reaching hearing
stage) to the high standard of proof demanded by our election laws.
While
the former reason is true, the latter reason is not.
Contrary
to popular legal opinion, it is easy to annul a dubious election under our
election laws. This is because our
Election Offences Act 1954 (The Act) casts a wide dragnet over election offenders, and the provisions for
punishment are easy to apply. In other
words, an election offender is unlikely to escape the arms of the law in the
normal course of court proceeding where the letter and spirit of law is upheld. There is no reason why an election petition
armed with adequate evidence should be rejected.
The
provision for annulling an election on election petition is spelled out in
Section 32 of the Act, which states:
“The election of a
candidate at any election shall be declared to be void on an election petition
on any of the followings only which may be proved to the satisfaction of the
Election Judge:
(a)
That general bribery, general treating or general intimidation have so
extensively prevailed that they may be reasonably supposed to have affected the
result of the election.
(b)
non-compliance with any written law relating to the conduct of any election if
it appears that the election is not conducted in accordance with the principles
laid down in such written law and that such non-compliance affected the result
of the election.
(c)
That a corrupt practice or illegal practice was committed in connection with
the election by the candidate or with his knowledge or consent, or by any agent
of the candidate.
(d) ……….”
(There
are 5 sub-sections under Section 32).
GROUNDS OF ANNULMENT
Hence, in an election petition, an election can be
annulled under three broad categories of grounds, namely, a) general malpractices not
necessarily committed by the candidate, such as prevalent vote-buying
practiced by the candidate's party, b) non-compliance with election laws or regulations, and c) a corrupt or
illegal practice committed by the candidate himself or his agents. While the former two grounds require
malpractices to be prevalent, there is no such requirement for the last ground.
The first
category (para a): general
malpractices:
The
malpractices of general bribery, general treating and general intimidation are comprehensively spelled out under Sections 10, Section8 & Section 9 respectively. These are so liberally and elaborately defined
that hardly any of the rampant vote-buying and other malpractices indulged by Barisan Nasional in
GE 13 could escape legal accountability.
For example, bribery is defined as any material benefit given or
promised to be given to any voter before, during or after an election for the
purpose of inducing votes.
Similarly, the free flows of
foods, entertainment and gifts showered on the electorate by the BN-linked
"1Malaysia" group could also be cited as illegal general treating
under this category, if evidence of vote-inducement can be produced.
There is, however, one proviso: these
malpractices must be so prevalent
that they may reasonably be considered to have affected the result of the
election. The operative words are “reasonably” and “affected”.
Take note that the petitioner needs not have to:
1) name recipients of bribe
since this is general bribery, and
2) prove that the outcome of
the election would have been overturned if
there is no such bribery, as he needs only to show that such bribery could
reasonably be expected to have influenced the voters’ decisions. The word “affected” cannot be
interpreted as “overturned”.
It is also important to note,
in this connection, that the act of
corruption is deemed consumed at the act of making the illegal offer; and it is not
necessary to prove that such offer has
actually caused the voters to reverse their decisions.
Under the second category (para b),
non-compliance with election regulations could be malpractices of the Election
Commission (EC), such as the electoral roll
being contaminated with dubious voters, despite evidence of such dubiosity and
request for its rectifications being presented to EC earlier; or the glaring
lack of security in EC’s custody of early and
postal ballots, despite protests by candidates, with the subsequent result that these
votes are so lop-sided in favour of Barisan Nasional candidates (such as 10 to
1) that the results are beyond the realm of
credibility.
Under the third category (para c), the corrupt practice referred to are bribery, treating, threats, and other offence
including making a false declaration on election expenses (Section 11 f)
committed by the candidate, his agents or others with the knowledge or consent
of the candidate. And the illegal practice mentioned in this category include, among
others, election expenses incurred beyond the limits stipulated in Section 19,
namely, RM200,000 for a
parliamentary seat, and RM100,000 for a state seat.
Besides annulling an election
through an election petition, an election could also be annulled through the
conviction of the candidate (Section 31) for having committed any of the myriad
of offences described in the Act, particularly, Sections 9, 10 and 11. But for that to take place, the EC, police,
MACC and judiciary must act in concert to enforce the law.
INSTITUTIONAL
FAILURE TO UPHOLD ELECTION LAWS
With such a comprehensive set
of laws to safeguard clean elections and prosecute offenders, one would have
expected scores of convictions and annulment would have taken place,
considering the complete disregard for the principles and letter of election
laws and the wanton election malpractices indulged by BN in the past.
But alas, election annulment
and election related prosecution have always been a rarity, not to mention
conviction. Why?
The answer lies in the truth
that almost all our institutions have long been corrupted to forsake their
political neutrality and integrity. In
fact, they have been converted as instruments to perpetuate Umno’s political
hegemony, resulting in rampant double standard in law enforcement so frequently
detested and condemned by the public.
Many an election petition have
been thrown out without its case being even heard – not due to lack of evidence of offence, but due
to prevalent pro-BN stance of judges.
A classic example is Judge Azahar Mohamed’s judgment
to strike off Zaid Ibrahim’s (then in PKR) election petition to annul the
by-election for the Hulu Selangor parliamentary constituency in 2010.
In that by-election, Prime
Minister Najib Razak publicly offered on polling eve to pay RM3 million cash to
the Chinese electorate in Rasa the very next day after polling (for building a
Chinese primary school), on condition that BN’s candidate Kamalanathan won the
election. The video clip of this sensational
bribery offer, uploaded in YouTube, went immediately viral, and was watched by
vast audiences in Malaysia and around the world.
As it turned out, BN’s
candidate won, and the RM3 million cash was paid the next day.
Such daring attempt to buy an
election would have been deemed a clear-cut and foregone case of election
bribery under any jurisdiction, as the ingredients of bribery are present, and
the evidence irrefutable, being watched instantly by the whole wide world. Not only that, for such brazen corrupt act, Najib
should also have been charged and convicted for corruption.
But, in the law books of Judge
Azahar, there was no case, and Zaid’s application was struck off.
Reasons? Zaid didn’t identify the recipients of the
alleged bribe, didn’t prove Najib’s act had altered the election result, and
didn’t provide a full text or transcript of Najib’s speech.
But, wasn’t Azahar asking for
the moon, when he demanded concrete evidence of voters changing their voting
preference, following Najib’s offer? What kind of evidence did he have in mind? Did he expect voter A to come to the court and
swear that he wanted to vote for Zaid, but due to Najib’s offer, he changed his
mind and voted for Kamalanathan ? If
voter A really did that, would Azahar have accepted the evidence as truthful? If
not, what other evidence did Azahar have in mind before he would agree that
pervasive offer of inducement had in fact swayed the decisions of voters? The
absurdity of Azahar’s demand is self-evident.
POLITICAL BIAS
OF JUDICIARY
Azahar is only one of many
such judges who have struck off legitimate election petitions at the preliminary
stage, and this is borne out by former Judge Muhammad Kamil Awang, who in his
famous judgment annulling the Likas election in 2001, disclosed that then Chief
Justice Eusoff Chin called him by phone to dismiss the election petition
without hearing it, to which, Muhammad refused to comply. Muhammad further revealed that other judges
had also called him for advice regarding similar requests from Eusoff
Chin. Presumably, these judges had
yielded to the pressure, thus explaining the phenomena of rampant striking out
of election petitions.
The courageous and honourable
Justice Muhammad Kamil Awang was, of course, an exception to the rule. But that does not mean that we have no judge
of integrity among the fraternity, as from time to time, we continue to see
judges risk courting the displeasure of the ruling power to deliver judgment
strictly according to law.
In this connection, we take
heart from Chief Justice Arifin Zakaria who, in anticipation of a rush of
election petitions following the controversial GE 13, has recently urged judges
to “hear the cases with an open mind and not bow to pressure from any
quarters”.
The Chief Justice has won
praise for having markedly improved the efficiency of the Malaysian court in
his reign over the past two years. It is hoped that under his leadership, the
Malaysian judiciary will rise up to the occasion to observe political
neutrality and deliver judgments over the spate of imminent election petitions
strictly according to law – judgments that will make all Malaysians proud.
Kim Quek
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