The reality of election petitions in Malaysia

Kim Quek

Ever since Pakatan Rakyat declared its intention to challenge the results of the 13th General Election – 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.