M’sia’s electoral system: Govt of the people? (3)

By Tey Tsun Hang

(Parts 2 & 3 of this article appeared on July 2-3. Summary: The major issues constraining the Malaysian electoral system include mal-apportionment where disproportionately-sized constituencies foils the one-vote-one-value principle, gerrymandering as well as manipulation of the electoral rolls. Much has to be done to restore public confidence in the Election Commission.)

VI. The election petitions – Quagmire for the losers

Elections may be challenged on two bases. The first is a challenge by the public against the accuracy of the electoral roll by way of a public inquiry; the second being an election petition by way of judicial review. The option of the preferred recourse primarily depends on two factors: the nature of the alleged wrongdoing or error in the election process, and the time at which the aggrieved party seeks to act.

A supplementary electoral roll may be challenged by way of a public inquiry under section 17 of the Election (Registration of Electors) Regulations 2002. The Registrar shall, as soon as practicable after receiving a claim for, or an objection to, the inclusion of any name in the electoral roll, hold a public inquiry into the claim or objection which has been duly made, giving not less than seven days’ notice in a prescribed form to the claimant or the objector or the person in regard to whom the objection has been raised, and any person who appears to the Registrar to be interested in or affected by the inquiry may appear in person at the inquiry.¹³⁶

However, following an amendment to the Elections Act 1958 in June 2002, the electoral roll is now deemed to be final and binding after it has been certified or re-certified, and is not reviewable by any court.¹³⁷ Although this has yet to be tested in a proper case, existing case authorities seem to support the proposition that the appropriate mechanism for challenge would be to raise objections before the certification, since the roll would already be open for inspection before the actual certification.¹³⁸

In any event, a penalty may be imposed under section 18 of the Elections (Registration of Electors) Regulations 2002 for objections made without reasonable cause. The question of whether a public inquiry may be a good alternative to judicial review of the electoral rolls does not attract a comforting answer because the regulations¹³⁹ provide that the inquiry is to be conducted by the Registrar, who is after all an officer appointed by the Election Commission.¹⁴⁰

There is thus a danger of the inquiry being subject to cover-up practices by officers within the Election Commission. Thus, a plausible mechanism through which the independence and efficiency of the Election Commission can be put under thorough scrutiny is through an Independent Commission of Enquiry that is external to the Election Commission.¹⁴¹ This will provide an alternative means of ensuring that the Election Commission is effective and impartial in its operation and review of grievances from the public.

The other related issue that follows is, notwithstanding section 9A of the Elections Act 1958, whether a certified electoral roll can be challenged, if upon objection before certification, the Election Commission nevertheless proceeds with certification. The difficulty with this issue is that the judicial pronouncements on this point were made before 2002, and did not have the benefit of considering section 9A. While it was previously held in the Wong Phin Chun case (unreported, 1994) that it would not be appropriate to raise such disputes to an Election Court, the better view is that the electoral roll can be challenged because the very failure to hold a public inquiry after objections were raised is a contravention of the law.¹⁴²

Apart from challenges to the electoral roll, an election of a successful candidate to the House of Representatives or to the legislative assembly of a state can be called in question by an election petition.¹⁴³ Election petitions are presented to the High Court having jurisdiction over the electoral constituency affected by the petition (also known as the Election Court). Every petition is tried by the Chief Justice or by a judge of any High Court¹⁴⁴ nominated by the Chief Justice for the purpose.¹⁴⁵ An election petition must be presented to the High Court within 21 days after the election results are gazetted. At the conclusion of the trial, the election judge shall determine whether the candidate whose return or election is complained of, or any other person, was duly returned or elected.¹⁴⁶ The election judge is also empowered to declare an election null and void, in which event a fresh election must be held by the Election Commission.¹⁴⁷

Except for the period after the first parliamentary election in 1955 when not a single election petition was filed, election petitions “seem to be the order of the day after every parliamentary election”.¹⁴⁸ The conduct of election petitions is especially problematic because of the ambiguity of the language of the various statutory provisions,¹⁴⁹ coupled with conflicting judicial interpretations of the technical complexities entailed in such provisions.¹⁵⁰

One of the disputes raised in Devan Nair v. Yong Kuan Teik ¹⁵¹ was whether a failure to comply with the time limits for the service of the petition by the aggrieved party under Rule 15 of the Election Petition Rules 1954 ¹⁵² would result in the petition being struck off and rendered invalid. The Privy Council upheld the trial judge’s decision that strict compliance with Rule 15 is mandatory rather than directory, and consequently a failure to comply with Rule 15 must render the petition a nullity. The decision of the Privy Council is salutary because of the need to ensure a speedy resolution to any disputes, as well as fairness in terms of allowing the other party to know the case against him timeously, and to prepare his evidence as soon as possible for the purpose of responding to the petition.

The issue of whether Rule 15 permits personal service on the returned candidate where an advocate has not been nominated by him under Rule 10, however, still remains uncertain. While there have been several post-Devan Nair cases¹⁵³ holding that personal service of a petition under Rule 15 is permitted, the court took a complete turn in Dr Lee Chong Meng v. Abdul Rahman (No. 2),¹⁵⁴ where the it was held that personal service was not a recognised mode of service under Rule 15 in the absence of an advocate nominated by the returning candidate under Rule 10. However, the case of Dr Lee Chong Meng did not fit well with past decisions.¹⁵⁵

Yet another controversy that remains unresolved is the conflicting judicial decisions in Rhina Bhar v. Karpal Singh¹⁵⁶ and Salbin bin Muksin v. Sabah State Election Officer¹⁵⁷ on the issue of whether a failure to state clearly that a copy of the petition may be obtained from the Registrar of the court was fatal to the party presenting the petition. However, the decision in Ramely bin Mansur v. Suruhanjaya Pilihan Raya¹⁵⁸ seemed to adhere to a stricter view as seen in Rhina Bhar which cast an extremely heavy burden on the party presenting the petition to attend to technical issues of specific distribution of copies of the petition, and to ensure that the relevant copies must reach the respondent even after sufficient copies have been passed over to the Registrar.

The Election Petition Rules 1954 must be reviewed and worded with more clarity so as to remove any ambiguity, rather than to leave such ambiguity to the inadequacy and futility of judicial interpretation.

Election petitions may also deal with the non-compliance of the respondent with the election laws. Some examples of non-compliance include a wrongful rejection of a nomination or failure to reject a nomination paper by returning officers,¹⁵⁹ non-observance of regulations pertaining to the conduct of elections at the polling centre,¹⁶⁰ as well as errors in the counting of votes and the failure to grant a request of recount. ¹⁶¹

One question here is whether the duty incumbent on the petitioner to satisfy the election judge that the election was not conducted in accordance with the principles laid down in such written law and that such non-compliance affected the result of the election, must be construed conjunctively or disjunctively.¹⁶²

There are conflicting views. In Mohamed Jaafar v. Sulaiman & Anor,¹⁶³ the election judge adopted the conjunctive view. This may seem to be logical since the provision under section 32(b) of the Election Offences Act 1954 expressly uses the word “and” which suggests a conjunctive approach. In Ishak Hamid v. Mustapha,¹⁶⁴ the court held that a transgression of the law in the defective administration of a nomination paper of a successful candidate did not render the election results null and void. The reason as set out by the judge was that while there was indeed a procedural breach of the law by the returning officer in the admission of the nomination papers, the elections had been substantially conducted in accordance with the general principles of the law. The judge also observed that as the non-compliance of the law by the returning officer had not affected the result of the election, the respondent must be held to have been duly elected.¹⁶⁵

However, it is submitted that the better view should be the disjunctive view adopted in the later case of Re Tanjong Puteri Johore State Election Petition.¹⁶⁶ The law should regard both procedural fairness and substantive fairness equally. The importance of procedural fairness in the conduct of elections would be undermined if the results of the elections (substantive fairness) are invariably made the controlling factor to trigger the operation of section 32(b) in every case. Moreover, it is speculative to attempt to determine if a noncompliance of any written rule did in fact affect the result of the election. There simply is no litmus test that can be applied consistently in every case.

Ensuring free and fair elections necessarily requires that both procedural fairness and substantive fairness be satisfied, and it is a disjunctive and not a conjunctive reading of section 32(b) that could bring about such an effect in the law. This does not, however, necessarily mean that every claim has to be given the full measure of judicial inquiry the moment a suit has been filed.

As much as justice must be seen to be done, the courts must be astute in dismiss unmeritorious cases. Before a full-blown inquiry is to be attracted, claimants must first prove to the satisfaction of the courts a prima facie case of non-compliance of election rules or a real possibility of an affected election result therefrom as a matter of preliminary inquiry. This will help the courts weed out frivolous and vexatious claims from losers of elections.

VII. Judicial immunity – Time for a serious rethink

The judiciary has been commended elsewhere for some of its decisions such as

Stephen Kalong Ningkan v. Tun Abang Haji Openg and Tawi Sli167 and Koh Yin Chye v. Leong Kee Nyean168 where the Election Court rightly found the governing party to have been wrong. However, these achievements should not be overstated. ¹⁶⁹

The question of whether the Election Commission or the returning officer of any constituency should enjoy immunity against judicial scrutiny – in the face of the increasing allegations made against the Election Commission for failing to discharge its duties satisfactorily – is critical here.

The traditional justification for immunity is to avoid defensive practices by the Election Commission that might lead to disruption in its ordinary functioning. Unfortunately, with the neutrality and competence of the Election Commission being subject to severe criticisms, it is time to rethink whether the Election Commission ought to enjoy continued judicial immunity. The relevant cases do not provide clear authority on whether the Election Commission or any returning officer can be brought to court. In Re Pengkalan Kota by-election,¹⁷⁰ it was suggested that a returning officer may be joined as a respondent in an election petition only if it would be necessary to do so.

In Dewan Undangan Negeri Kelantan v. Nordin Bin Salleh,¹⁷¹ it was held that the Election Commission can be made a respondent to an election petition, but on the circumstances of the case it was held that the failure to join the Election Commission as a party in the case was not fatal to the case. However, the more recent case of Dr Lee Chong Meng v. Abdul Rahman bin Haji Abdullah (No. 1)¹⁷² held that neither the Election Commission nor a returning officer could be made a respondent to an election petition.

The better view to adopt is that the proposition found in Dr Lee Chong Meng v. Abdul Rahman bin Haji Abdullah (No. 1) does not confer judicial immunity and, accordingly, does not mean that the Election Commission cannot be held accountable for their acts. After all, the underlying purpose of an election petition is to submit an electoral dispute to the court to assess the validity of an election result, not to seek punitive remedies against the administrator of the election. The Election Commission could still be held accountable in law for any corrupt or illegal practice in the course of their administration under the criminal law. Allegations of wrongful conduct on the part of the Election Commission merely serve a tactical litigation function in election petitions to secure annulment of the election outcome. It remains open for appropriate prosecution against any corrupt practice to be carried out in a separate criminal trial.

While making the Election Commission liable as a respondent to an election petition may undermine its administration of elections, what should be borne in mind is that since the Election Commission is charged with the responsibility of ensuring free and fair elections, it should be held accountable in law for its acts in the course of its administration.

Rather, subjecting the Election Commission to judicial scrutiny carries a strong signal that reinforces the raison d’être of the Election Commission – to administer and conduct elections in such a manner as to ensure free and fair elections. No free and fair elections can be assured if the Election Commission could act, whether properly or improperly, under the absolute guarantee of impunity.

From a constitutional perspective, it makes perfect sense to enforce judicial scrutiny over the Election Commission under the separation of powers model which aims to impose meaningful checks and balances over governmental behaviour. After all, as has been discussed earlier, there is a strong indication of legislative and executive interference with and manipulation of the Election Commission.¹⁷³

As for alleged practices falling short of criminal behaviour (i.e. negligence), the Election Commission may still be invited to testify as a witness to assist the election judge in coming to a decision on whether to quash a particular election result. Dr Lee Chong Meng v. Abdul Rahman bin Haji Abdullah (No. 1) does not seem to pose any difficulty on this point, for it merely held that the Election Commission could not be made a respondent to an election petition.

Next, the proposition that the Election Commission may be compelled to testify and provide evidence under section 37(2) of the Election Offences Act 1954 does not seem to fit well with the Election Commission Act 1957. Under the Election Commission Act 1957, although penalties are imposed on persons attempting to influence the Election Commission,¹⁷⁴ and also for any unauthorised disclosure of information by members of the Election Commission,¹⁷⁵ no person shall in any legal proceeding be compelled to disclose any information on any form of communication which has taken place between any member of the Election Commission and any official in the government.¹⁷⁶ The latter is inconsistent with section 37(2) of the Election Offences Act 1954.

The blame for such confusion in the law should be placed on the poor drafting of statutes with little or no cross references between related Acts to ensure consistency in the law. Section 37(2) of the Election Offences Act 1954 should prevail as the Election Commission is after all the custodian of free and fair elections, and it ought to be held accountable to the public for its acts and not hide behind a veil of immunity. This is also consistent with the preferred view towards stripping the Election Commission of all immunity against judicial scrutiny, so as to allay the growing and increasing sentiments of scepticism towards its neutrality, integrity, competence and independence.

VIII. Other aspects of the election laws – Of serious concerns and confusion

Some residual aspects of the election laws that remain in confusion, or are in need of further reform, include the standard of proof in election dispute cases, the right to appeal from an Election Court’s decision, and certain aspects of election offences.

The prevailing view towards the standard of proof in disputes regarding the elections can be found in Wong Sing Nang v. Tiong Thai King,¹⁷⁷ where it was held that since allegations are generally in substance criminal in nature (such as allegations of bribery and misrepresentation by successful candidates), the appropriate standard of proof should be that under a criminal case i.e. proof beyond reasonable doubt. However, the contrary view, as enunciated in Hamad bin Mat Noor v. Tengku Sri Paduka Raja¹⁷⁸ is that since the Election Court is essentially a civil court, and that Section 32 of the Election Offences Act 1954 expressly states that the petitioner need only to prove “to the satisfaction of the Election Judge” the commission of election offences, the standard of proof should be that of a civil case i.e. on a balance of probabilities.

While there have been suggestions urging that the Election Offences Act 1954 be amended to state specifically what standard of proof is to be expected from the petitioner, the requisite standard of proof should be made to be dependent on the nature of the allegations. If the allegation is one of criminal nature such as a bribery case, the standard to be followed must be that of beyond a reasonable doubt. On the other hand, if the allegation is directed at a criminally non-culpable practice, the recommended standard of proof may well be based on a balance of probabilities. In any case, the Election Offences Act 1954 should be reformed to categorically accommodate these two possibilities that may arise in a dispute.

Another area of confusion is the right to appeal against the decision of an election judge. Generally there is no automatic right of appeal in every Election Court decision due to the need of achieving a speedy resolution to disputes and the regard to be had for the public interest in ensuring that there is no indefinite delay in waiting for the outcome of the final decision as to whether a re-election is to be conducted. Although an intermediate stand seems to be adopted by the Privy Council in the Devan Nair¹⁷⁹ case where it held that there can be a right to appeal provided that the election judge expressly allows for such a right in his judgment and that the case was of exceptional public importance, stronger views have been expressed for an automatic right to appeal. Thus in Zulkaraini v. Syed Omar¹⁸⁰ the election judge said:

“I do not think election judges do not make mistakes whereas other judges do. We are all not infallible. What then happens if an election judge commits an error? ... It appears to me the aggrieved party has no remedies under the law. Perhaps this matter can be also considered so as to safeguard against errors made. Perhaps a quick reference after judgment to the Federal Court within a short period of time to be provided in the law is the answer.”

 

This view is preferable. It gives effect to the recognition of the reality that election judges do make errors in their judgment at times, and that consequently a right to appeal – albeit expeditiously – can provide legal recourse to correct such errors.

In addition, the controversies surrounding various ambiguities of Rule 10 and Rule 15 of the Election Petition Rules 1954 (as discussed earlier) would not have been so problematic had the Malaysian law allowed for appeals to be made against judgments of the Election Court. The right to appeal to an appellate court would demand that rules of stare decisis be observed, and this will aid the public in identifying with relative confidence the authoritative propositions of the law for various electoral legal issues.

Lastly, having an automatic right to appeal does not necessarily lead to undue delay and confusion, for strict limitation periods can be laid down for the various types of disputes that may arise from election petitions.

Another area for possible reform is to improve the Election Offences Act 1954 to include special provisions pertaining to divisive practices by election candidates that may create disharmony and hatred among the various ethnic communities in Malaysia.¹⁸¹ For example, an equivalent of the Indian Act (the Representation of People Act, 1951) can be incorporated into the Election Offences Act 1954 to prohibit divisive practices by candidates to swing votes in their favour based on religious threats or remarks.¹⁸² The enactment of such provisions would also reflect the respect that candidates must show to the electors’ ethnic and religious diversity, which in turn requires that voters are free from any undue influence in exercising their right to vote.¹⁸³

Some provisions in the Election Offences Act 1954 may also be abused by the governing party in securing the conviction of opposition party members. For instance, section 4A of the Election Offences Act 1954, whilst dealing with offences of promoting feelings of ill-will or hostility, is widely worded, and can potentially apply to any conduct made in the course of a political campaign launched by the opposition.¹⁸⁴ It has been correctly pointed out that such a loosely worded provision in the Election Offences Act 1954 is not desirable.¹⁸⁵

IX. Conduct of elections – An unfair game

The focus of this section is on how a lack of level playing field has resulted from the consistent exploitative utilisation by the ruling coalition of the state machinery during elections to garner votes for itself.¹⁸⁶

For example, it has been noted that the 1990 nationwide rallies undertaken by the then Prime Minister were arranged months before the election, abusing state resources such as government jets, facilities and funds.¹⁸⁷ Mass media access to the contesting parties in the pre-election period was also inequitably shared among all parties, with the BN standing to gain the most coverage and airtime.¹⁸⁸

The government’s press regulatory regime also indicates strong government control as exemplified by the hostile treatment of Election Watch.¹⁸⁹

The Election Commission has been lacklustre in enforcing spending limits on campaign expenditure.¹⁹⁰ Also, the ruling coalition appears to have conflated itself with the state in tapping state resources to advance its own political campaigning during the pre-election periods. In doing so, it has ignored the fundamental notion that the government becomes a caretaker government during the election period, whose function is to administer the daily affairs of the country until the swearing-in of the newly elected government.

As regards the actual conduct of election, there are three key concerns.¹⁹¹ The first is the dissatisfaction over insufficient supervision of absentee or postal votes involving mainly the civil service sector, the police and the military.

Secondly, there is no secrecy of ballots, the justification for which is to enable the tracing of voters in election petition hearings. Thirdly, the 1990 reduction of the catering size of every polling station to no more than 700 voters has inevitably raised eyebrows for fear of “government reprisal” for voting against the BN.

Arguably, this development also encourages gerrymandering by allowing the government to better derive more precise electoral result estimates in the elections by referring to past voting results in these bite-sized polling localities.

Finally, the progressive shortening of the campaign period from slightly over a month (prior to 1970) to less than two weeks (in 1986 and thenceforth) has also been derided for giving the ruling party an undue advantage, since it can catch the opposition parties unaware in embarking on a full scale campaign without prior notice for preparation.¹⁹² Coupled with the inequitable access to the media and public facilities given to the contesting parties, this greatly reduces the ability of the opposition to mount a more meaningful challenge against the incumbent in the elections.

X. A skewed electoral regime – The continuous legitimisation of a plebiscitary pseudo-democracy

This brief analysis of the nature, implementation and enforcement of the election laws of Malaysia seeks to highlight the areas where urgent electoral reform is needed.

A regime obsessed with colossal victories by its very nature breeds a strong resistance towards changes that may reduce its political advantage. To fuel such a political culture within the Malaysian society, the governing coalition has resorted to continuous, conscious and calculated legitimisation of its actions to secure electoral victory. Such an end can only be met through serious top-down distortion of electoral democracy.¹⁹³

Barring an independent Election Commission and appropriate judicial remedies, electoral democracy risks being irretrievably jettisoned in Malaysia.¹⁹⁴

Instead of the continuous legitimisation of an uninterrupted plebiscitary pseudo-democracy, urgent electoral reforms – in many areas – are needed in Malaysia to restore public confidence in its electoral system, as well as to ensure the legitimacy of its political system.

 

(Assoc. Prof. Tey is director, Centre for Commercial Studies at the National University of Singapore.)

__________________________________

Part 1: Inherited election laws and how the EC is manipulated, constrained and inept

Part 2: The rural weightage principle, Sabah-S’wak Muslim advantage and ‘missing’/‘phantom’ voters

 

FOOTNOTE: 

Tey, Tsun Hang (2010) "Malaysia's Electoral System: Government of the People?," Asian

Journal of Comparative Law: Vol. 5: Iss. 1, Article 11.

DOI: 10.2202/1932-0205.1279

Available at: http://www.bepress.com/asjcl/vol5/iss1/art11

136 Section 17(1) of the Elections (Registration of Electors) Regulations 2002.

137 Sections 9 and 9A of the Elections Act 1958. Section 9A states: “After an electoral roll has been certified or re-certified, as the case may be, and notice of the certification or re-certification has been published in the Gazette as prescribed by regulations made under this Act, the electoral roll shall be deemed to be final and binding and shall not be questioned or appealed against in, or reviewed, quashed or set aside by, any court”.

138 See Tg Nawawi bin Tengku Ab Kadir @ T Putra lwn Lokman bin Muda & 2 Lagi [1996] 1CLJ 551 (Unknown Court, Malaysia), per Abdul Hamid Mohamed H; Salbin bin Muksin v. The Sabah State Election Officer & 2 Ors (and Anor Election Petition) [1999] 4 AMR 4951 (High Court, Sabah and Sarawak (Kota Kinabalu)), per Hasan b. Lah J.

139 Section 17 of the Elections (Registration of Electors) Regulations 2002.

140 See definition of “Registrar” under Section 2 of the Elections (Registration of Electors) Regulations 2002 which alludes to Section 8 of the Elections Act 1958 (on “Appointment of officers”).

141 This has been supported by the Bar Council as well: “Bar Supports an Independent Commission of Enquiry” (2004) 24(3) Aliran Monthly 33. Even the Election Commission chairman has once suggested the need for an independent commission to investigate certain electoral “fiascos” that happened during the 2004 elections. However, such a suggestion was rescinded shortly after: “Current Concerns” (2004) 24(3) Aliran Monthly 35.

142 Harris Mohd Salleh v. Ismail bin Majin Returning Officer & Ors [2001] 3 MLJ 433 (High Court, Kota Kinabalu), per Muhammad Kamil J.

143 Article 118 of the Federal Constitution provides: “No election to the House of Representatives or to the Legislative Assembly of a State shall be called into question except by an election petition presented to the High Court having jurisdiction where the election was held”. See also Section 34 of the Election Offences Act 1954.

144 Section 34 of the Election Offences Act 1954.

145 Section 33(1) of the Election Offences Act 1954.

146 Tunku Sofiah Jewa, Malaysian Election Laws vol. 1 (Kuala Lumpur: Pacifica Publications, 2003) xxii.

147 Section 36 of the Election Offences Act 1954; See also ibid.

148 Tunku Sofiah Jewa, supra note 146 at xxiii.

149 See Part VII of the Election Offences Act 1954, Second Schedule to the Election Offences Act 1954 and the Election Petition Rules 1954.

150 See also Ali Amberan v. Tunku Abdullah [1970] 2 MLJ 15 (Unknown Court, Malaysia), per Raja Azlan Shah J; Section 28 of the Election Offences Act 1954.

151 [1967] 2 AC 31 (Privy Council).

152 Second Schedule to the Election Offences Act 1954; Rule 15 is on “Notice of petition and copy of petition to be served on respondent”.

153 Chong Thain Vun v. Watson & Anor [1968] 1 MLJ 65; Muib bin Tabib v. Dato James Wong

[1971] MLJ 246 (Unknown Court, Malaysia), per Lee Hun Hoe J; Sabdin Ghani v. Mohamed Saidi Lampoh [1983] 2 MLJ 61 (Unknown Court, Malaysia), per Seah J; Rhina Bhar v. Karpal Singh [1995] 4 CLJ 642 (High Court Malaya, Penang), per Tan Sri Dato’ Anuar bin Dato’ Zainal Abidin CJ (Malaya).

154 [2000] 3 MLJ 218 (High Court, Kuala Lumpur), per Augustine Paul J.

155 Arguably, it also cannot be a binding authority on later decisions simply because there is no express right of appeal within the existing Malaysian election laws.

156 [1995] 4 CLJ 642 (High Court Malaya, Penang), per Tan Sri Dato’ Anuar bin Dato’ Zainal Abidin CJ (Malaya).

157 [1999] AMR 4951 (High Court, Sabah and Sarawak (Kota Kinabalu), per Hasan b Lah J.

158 [2000] 2 MLJ 550 (High Court, Kuala Lumpur), per Augustine Paul J.

159 Muip bin Tabib v. Dato James Wong; Wan Hamid bin Tuanku Surur v. Francis Loke [1971] 1

MLJ 246 (Unknown Court, Malaysia), per BTH Lee J; Yusoff bin Abdul Latib v. Haji Adnan bin Haji Ramli & Anor [1992] 1 MLJ 297 (High Court, Penang), per Mohamed Dzaiddin J.

160 Re Tanjong Puteri Johore State Election Petition; Abdul Razak bin Ahmad v. Datuk Md Yunos bin Sulaiman & Anor [1988] 2 MLJ 111 (Unknown Court, Malaysia), per Wan Yahya J.

161 Mohamed Jaafar v. Sulaiman & Anor [1970] 1 MLJ 181 (Unknown Court, Malaysia), per

Chang Min Tat J; Wan Daud bin Wan Jusoh v. Mohamed bin Haji Ali & Anor and Daud bin Jusoh v. Annuar bin Haji Musa & Anor and Mohd Nor bin Ismail [1988] 2 MLJ 384 (Unknown Court,

Malaysia), per Wan Yahya J; Yeoh Khoon Chooi v. Patto A/L Perumal & 2 Ors [1995] 4 CLJ 811

(High Court Malaya, Penang), per Tan Sri Dato’ Anuar bin Dato’ Zainal Abidin CJ (Malaya).

162 Section 32(b) of the Election Offences Act 1954 provides: “The election of a candidate at any election shall be declared to be void on an election petition on any of the following grounds only which may be proved to the satisfaction of the Election Judge… (b) non-compliance with the provisions of any written law relating to the conduct of any election if it appears that the election was not conducted in accordance with the principles laid down in such law and that such noncompliance affected the result of the election”.

163 [1970] 1 MLJ 181 (Unknown Court, Malaysia), per Chang Min Tat J.

164 [1965] 2 MLJ 18 (Unknown Court, Malaysia), per Ismail Khan J.

165 In any event, the root of the problem lies in statutory ambiguity, and uncomfortable decisions like Ishak Hamid v. Mustapha could have otherwise been avoided and be more convincing if the wording of the relevant election laws were clear enough.

166 [1988] 2 MLJ 111 (Unknown Court, Malaysia), per Wan Yahya J.

167 [1966] 2 MLJ 187 (Unknown Court, Malaysia), per Harley CJ.

168 [1961] MLJ 67 (Unknown Court, Malaysia), per Smith J.

169 The independence of the judiciary in Malaysia has also been criticised since the sacking of the former Lord President Tun Salleh Abbas in 1988.

170 [1981] 1 MLJ 265 (Unknown Court, Malaysia), per Abdoolcader J.

171 [1992] 1 MLJ 697 (Supreme Court, Kuala Lumpur), per Abdul Hamid Omar LP, Gunn Chit Tuan SCJ and Edgar Joseph Jr SCJ.

172 Election Petition No PP-1-2000, per Augustine Paul J. See also Ramely bin Mansur v. Suruhanjaya Pilihan Raya [2000] 2 MLJ 550 (High Court, Kuala Lumpur) where Augustine Paul J referred to his own judgment in Lee Chong Meng (No. 1) saying that the Election Commission is not an appropriate party to be made a respondent in an election petition.

173 See “Let’s talk, Election Commission tells parties”, New Straits Times (Malaysia), 23 April 2007.

174 Section 10 of the Election Commission Act 1957.

175 Section 9 of the Election Commission Act 1957.

176 Section 5 of the Election Commission Act 1957.

177 [1996] 4 MLJ 261 (High Court, Sibu), per Charles Ho J.

178 [1993] 3 MLJ 533 (High Court, Kuala Terengganu), per Lamin J.

179 [1967] 2 AC 31 (Privy Council). Lord Upjohn, however, underlined the point that the Privy Council would be reluctant as a general rule to entertain interlocutory appeals, especially in election petitions, unless the case raised was of exceptional public and general importance.

180 [1979] 2 MLJ 143 at 146 (Unknown Court, Malaysia), per Mohamed Zahir J.

181 See generally, Cyrus Das, “Elections laws and the compelling areas for reform in Elections and Democracy in Malaysia” in M. Puthucheary & N. Othman eds., Elections and Democracy in Malaysia (Bangi, Selangor: Penerbit Universiti Kebangsaan Malaysia, 2005) 380.

182 Ibid.

183 Abdul Rashid Moten & Tunku Mohar Mokhtar, “The 2004 General Elections in Malaysia: A

Mandate to Rule” (2006) 46(2) Asian Survey 319 at 328.

184 Section 4A reads: “Any person who … does any act or makes any statement with a view or with a tendency to promote feelings of ill-will, discontent or hostility between persons of the same race or different races or of the same class or different classes of the population of Malaysia … shall be liable, on conviction, to imprisonment for a term not exceeding five years or to a fine not exceeding ten thousand ringgit or to both such imprisonment and fine”.

185 See “Vote for Democracy” (2004) 24(2) Aliran Monthly 40 at 34; “New Rules and Constituencies for New Challenges?” (2003) 23(6) Aliran Monthly 7.

186 Khoo Boo Teik, supra note 21 at 40.

187 Election Watch, Report on the eighth Malaysian general elections held on 20th and 21st

October 1990 (Kuala Lumpur: Election Watch, 1990) 10.

188 Ibid at 12. See also Lim Hong Hai, supra note 23 at 275.

189 An informal group comprising a few members who aim to restore free and fair elections through communication and collaboration with the Election Commission: see supra note 187 at i.

190 Lim Hong Hai, supra note 23 at 275.

191 Ibid.

192 Ibid at 274.

193 Lim Hong Hai, supra note 7 at 136.

194 Ibid at 104.