Could we eliminate electoral fraud by improving election laws?

An election petition is a difficult thing. The law has ring-fenced it with several impenetrable technical rules. 

Combating electoral corruption under the current, antiquated laws is impossible.

After the results of the 13th General elections results were announced on 5 March 2013, I was asked, with a dozen others, to file election petitions for 22 constituencies in Perak.

The petitions alleged that the winners had succeeded by corrupt means; that they had ‘bought’ votes.  The petition laid out the evidence.  The evidence pointed only in one direction.  So it asked the court for a re-election. 

The petitions were set down for hearing in various Perak towns. The Sessions Courts in those towns had been converted to ‘election High Courts’.

If the petitioners won, the newly formed Perak State Government would fall. The situation was precarious.

At the hearing of the first of many such petitions, reporters and party supporters thronged the court.

Before the case started, the winning candidate’s lawyer informed us that he was raising various ‘preliminary objections’. 

“For a start,” said he, “you may not represent the petitioner in this case.  Because,” he added,  “you are in breach of rules 9 and 34 of the Rules” [Election Petition Rules 1954, made under section 42(1)] of Election Offences Act 1954].

You might wonder what rules 9 and 34 are.  Those rules state that once a person has filed a petition, he must name his solicitors: of course, our team had inserted the names of all the lawyers representing the Petitioner.  We had filed it in court in good time.  We had also sent these names to the opposing lawyers. 

Consider the objections: were these objections more serious than the far-reaching complaints before the court? Don’t you think the gravity of the allegations were grave enough for the Court investigate it?

We made our deductions.  We checked the evidence. We thought the judge would see through the haze.  So we were not worried.

Opposing counsel’s conduct belied the weakness of his objections.  There was something strangely odd in his self-assured tone. It said,

“You will not win. Go home.”

We didn’t think much of it.

When the judge was seated, the Respondent’s counsel rose. He said,

“This petitioner has no counsel, and cannot go on with this petition. Consequently the petition itself must be dismissed with costs”. 

Judges are usually phlegmatic. Even if they do not agree with you, they’d ensure everyone was heard. Relying on that, I asked the judge permission to argue the point. He said,

“Because the petitioner’s solicitors and counsel have not complied with the rules 9, and 34, no counsel can represent him”. 

There were dark mutterings in the gallery.  When the judge returned after a short recess, the gallery was simmering in anger.

As we were not allowed to address the judge, we worked out another strategy.  The Petitioner himself was to rise and seek permission to address the court.  We reckoned no judge in the land would deny any petitioner the right to be heard. The Constitution, after all, guaranteed equality and ‘equal protection of the law’ to the Petitioner: [Article 8].

The Petitioner rose.  He said in beautiful and lyrical Bahasa Malaysia,

“I will now speak on the merits of this petition. I ask permission to explain to My Lord how the respondent has been guilty of corrupt practices”.

The judge stopped him dead; and made a ruling.

The judge said to the Petitioner,

“Because you have no lawyers on record, you yourself cannot rise and speak.  For these reasons I now dismiss the petition.  I award costs to the respondent.  I will hear arguments on costs tomorrow”. 

This took all of five minutes.  We returned the next day.

The judge heard arguments from the Respondent on how much costs the Petitioner should pay him.

The judge then read his award.  He said,

“There are two respondents to this petition. One is the winning candidate.  The other is the Election Commission. And there is a third respondent. I now order that the petitioner pay RM40,000 each to the respondents”.

That meant the Petitioner had to pay RM 120,000 in total as costs for a petition that never got off the ground.

 To a man, every team member in all the different courts suffered the same fate.  Some were asked to pay as much as RM80,00 per respondent, hence paying as much as RM160,000 per petition. 

All this seemed draconian.  Almost orchestrated.

And so, appeals were filed at the Federal Court. 

I spoke for just over 80 minutes, taking the Federal Court through the nine objections.

Halfway through arguments the presiding judge asked a startling question.

“Isn’t it true that the main Act relating to this complaint is an Act of Parliament? 

If it’s an Act of Parliament, isn’t it true that the Act has to be construed strictly?”

The relevant laws had been enacted before Independence Day, before 31 August 1957. They were therefore ‘pre-Merdeka law (or ‘existing law’)‘.  As such it was not an Act of Parliament.  The Election Petition Rules 1954 were made under section 42(1) of Election Offences Act 1954.

Different rules applied.  Any ‘pre-Merdeka law’ had to be read to ‘accord with the Constitution’: [Article 162(6)]. It had to be read ‘with such modifications … and subject to any amendments made by Federal law.’ The Legal Profession Act had been passed in 1976. It granted any advocate and solicitor the automatic right to address any court. Thus the Pre-Merdeka Election Offences Act and Rules had to conform to the LPA.

The Federal Court allowed the appeals.

The Federal Court ruled that any advocate and solicitor had the right of audience before thecourts in the Peninsula. 

Any advocate and solicitor could represent any petitioners in the 22 cases. 

The Federal Court ordered the election petition was to be heard ‘on its merits’.    That order means ‘hear the  whole thing’.  The case was sent back to the various High Courts in Perak.

On the appointed day, I could not go. I had another case at Putrajaya. The team left without me. 

They called me back afterwards. 

They spoke of a fascinating story.

The team had reappeared before the High Court judge.  The judge had apparently asked a series of simple questions:-

 “Can you show me the written grounds of the Federal Court?

 Show me where I had gone wrong in the decision I had made?

 Show me why the Federal Court thought that I was wrong?” 

Counsel pointed out that the Federal Court had expressly said that it would not render any grounds. 

The judge had smiled.  He asked,

‘How then can you say that my decision was wrong?’ 

It could be proven that the appeal had been allowed. The judge was shown a draft order of the Federal Court. 

He was quick to reply,

“True it is that there is this order. I accept this reverses my decision.  But various preliminary objections were raised before me. Which were overturned, and which were not?” 

It was at this point that the Respondent’s lawyer rose, and reiterated the same  objectionsincluding our right of audience before the High Court .

The Judge then said,

“Although the main order has been reversed, the Federal Court has not expressly said that you as petitioner’s counsel have a right to address the court.  So I hold that the petitioner’s counsel have no right to address the court. I therefore dismiss the petition and order costs against the petitioner”.

I called Chan. I told him that we must go back up to the Federal Court. 

Chan is an old hand.  He said,

“No matter what you do, you will not win this in a court.

But we should not stop fighting. 

One day, we will overcome this oppression”.

Five years later, on May 9, 2018, Chan Kok Keong was proven right.

The courts have construed election petitions laws more strictly than criminal law. They threw out election petitions. They said elections petitions should be treated very strictly. Otherwise every Tom Dick and Harry would file a petition, complaining they had lost their elections on the most silly grounds. There would be no end to it. An elected Government could not go on.  It would be stultified by these objections.

All logical.

But what if skullduggery and bribery had pervaded the elections?  Would the same rules apply?

In the last few decades, the previous has regime splurged money on the electorate.  It bought votes.  You know why? Shortly after the election, the police said they had discovered a lot of cash and expensive items at the ex-PM’s house. A further RM3.7 million was reported to have been taken away by the 17 security guards at the Prime Minister’s Office.  On June 27, 2018, Al Jazeera reported,

“It took three days, six cash counting machines and 22 officials from the central bank to count the cash found at the premises. … the cash totalled $28.9m in 26 different currencies, including the Malaysian ringgit”.

That is equivalent to about RM120 million, give or take a couple of millions. 

After the raids, at least two members of the previous regime said these ‘were not monies which belonged to the ex-PM’ but were ‘monies the party had set aside for elections,’ and for the party’s ‘management.’  Why would anyone need RM120 million in cash for elections? Or for ‘party management’? For making flags? Perhaps party posters? 

Where did these monies come from?  The answer? ‘From donations.’ ‘Donations’ from whom?

How many hospitals could have been built with this money? How many schools? How many scholarships could have been given for poor students?

This has to be stopped. 

If an election has been won by means foul, there must be a fair hearing on the merits. 

If the charges are proven true, the victor must be stripped of his victory, and sent to prison. Re-electionsmust be ordered.

Any election petition that challenged corruption or malpractice that had tainted an election process, must be looked at by the courts with great care: with a microscope if necessary.

New election legislation has to replace of the current one: it is old, decrepit, and full of holes.

The current law is old and decrepit. 

It favours oppressors who abuse – and have defied – the Rule of Law.

It has to go – for good.

[July 02, 2018]