The Election Commission's (EC) decision to amend the Elections Act (EA) 1958 to include a new provision — section 9A — is not seen by many as a laudable exercise in transparency and accountability at this time, whatever the EC's pious intentions may be.

The amendments to the EA which came into force on June 15 this year provides in section 9A as follows: "After an electoral roll has been certified or re-certified, as the case may be, and notice of the 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."

This new law coming close to the 2000 decision of Justice Muhammad Kamil Awang in the case popularly referred to as the Likas case is seen as a blow to judicial independence and diminishes the role of the Election Court in levelling the playing field for a free and fair election. The EA had provided an avenue to challenge an election by way of an election petition.

In the Likas case, petition K11/99, one of the several petitions heard by the said learned judge requested that the 1999 election to the Likas state seat be declared void. Justice Muhammad Kamil found that the failure of the EC to maintain an "electoral roll in accordance with the law" (read: a clean roll), makes the roll illegal and the Likas election null and void.

EC's duty in elections

In the case, there were testimonies related to the Jabatan Pendaftaran Negara (JPN) or National Registration Department's role in the issuance of identity cards (ICs) to phantom voters. However the court found that it is the EC which is duty-bound to ensure a roll clean of "fraudulent practices such as massive registration of phantom voters" if "we wish to defend and preserve the meaningful practice of democracy in Malaysia".

The EC was taken to task for certifying a clean roll for 1999 despite objections raised in respect to the roll. The EC among others, failed to conduct an inquiry into these objections. The petitioner gave evidence at the trial of 4,197 persons with dubious ICs. One former district officer who was a witness at the trial claimed that some 40,000 foreigners became Sabahans in 1985.

The court found it unacceptable that the EC had failed to hold an inquiry "as prescribed by the elections laws" and instead certified the roll when it is "common knowledge" that Sabah has been plagued by illegal immigrants. These reports appear in the local dailies too frequently and the EC ought to be aware of it.

The court found that the allegations of a "Mahathir project" where blue ICs were allegedly sold to non-citizens or disqualified persons for RM300 was not proved. Elsewhere it said that "it is true that too many politicians and public officials have exercised power and responsibility not as a trust for public good but as an opportunity for private gains".

Phantoms alive

Phantom voters come in all shapes and sizes. They are illegal voters who use the ICs of dead voters whose names still remain on the roll. They are also registered voters who got on the roll for a particular constituency on fake or irregular ICs, including illegal immigrants and foreigners and out-of-town Malaysian 'shoppers' bussed into polling stations on polling day.

These are just some of the recorded instances by election workers of how a phantom gets onto the roll. With due respect, the de facto Law Minister, Rais Yatim's urging in the last sitting of Parliament in April that MPs use the term, "voters who registered wrongly" to refer to phantom voters can be said to be, uninformed.

If these instances are so proved by testimonies of witnesses and documents in an election petition, as in the Likas case, they amount to irregularities in the electoral roll, which affect the management of an election. It can then be construed by an Election Court that the election was not conducted substantially in accordance with election law and the election would be declared void.

Justice Muhammad Kamil in the Likas case was of the view, that if the evidence leads towards such a finding, whether the irregularities had affected the election result or not is not a factor to be additionally considered in declaring the election void.

Recently Sik member of parliament Shahnon Ahmad alleged that efforts were being made by certain parties to bring residents of Patani in South Thailand into Sik in Kedah as phantoms. He was reported to have said that the regularity of visits to Patani by Umno leaders led him to believe this possibility. He is said to be monitoring the situation.

Bussing in phantoms

Evidence of registration of phantom voters for three consecutive election years (1989/1990, 1993/1994 and 1998) and the bussing-in of phantoms were also carefully noted and recorded by election workers in the Sungai Siput petition formerly entitled, Michael Jeyakumar Devaraj v Samy Vellu a/l Sangalimuthu [2000]. This is an unreported case.

The petition alleges for example that in one area called Ladang Plang, a ground survey showed that only less than 10 percent of voters were actual residents. The petition gave a detailed account of the modus operandi of the alleged transfer of non-resident voters onto the roll in another area, Taman Tun Sambanthan, where more than 50 percent of the voters registered are not residents.

Police reports were made carefully on polling day, where the petitioner suspected that phantoms were bussed into polling stations to vote with these episodes photographed and videotaped. Some of these were destroyed by people whom the petitioner alleges to be agents of the respondents and again police reports of these incidents were made.

It will be noted that the Likas and Sungai Siput cases show that election workers are trained to collect evidence that would stand in an Election Court. It is worth every effort that election workers and human rights defenders learn from these cases or better still with the petitioners and their supporters as to how to document election irregularities and abuses should the need arises to raise challenges in court.

It was most unfortunate that the Sungei Siput case was not able to go on its substantive arguments as the petitioner lost on preliminary objections. The election judge, Justice Wan Adnan, did not deliver a written judgment for the record.

The grey in section 9A

The politics of the inclusion of section 9A to the EA aside, it is doubtful if in an election petition case the 'unjusticiability' argument of the roll upon certification by the EC and its gazette would stand in a court of law where the EC has been proved by the petitioner to be less than vigilant in cleaning up the roll especially when objections and evidence of irregularities are brought to the EC's attention.

The grey area would be upon certification and gazette where no objections were raised prior to that or after an inquiry (whether or not to the satisfaction of the objectors) was conducted subsequent to the objections. The role of the Election Court in overseeing a free and fair process in such a case waits to be tested.

The other issue not yet tested fully in our courts is whether the acts and decisions of the EC can be held to scrutiny in a court of law other than by way of an election petition. Constitutional and 'election' lawyers have long mulled over the matter. Section 9A purports to pre-empt such a possibility by providing that judicial review (that review by a court of law over the decisions of the EC which has affected a right in this context), is not available with regard to the electoral roll.

Integrity of the courts

Recent and renewed interest in upholding the integrity and independence of the judiciary and reclaiming its constitutional role to check and balance the executive and the legislature specifically and building a jurisprudence of democratic accountability, have persuaded the idea of bringing a case on any relevant matter on elections as a constitutional case. This is a capital idea to be explored in the interest of justice as the avenue of an election petition is limited in its application.

Constitutional democracy requires some form of judicial supervision to secure civil and political rights. In many countries today it is found necessary that the courts take on the task of facilitating free and fair elections.

Judges in reinforcing its role in the democratic process are said to 'act as umpires' of the democratic system if and when the other organs of government use their authority and power to try and avoid accountability.

Judges in an election petition case or in judicial review of administrative action or in a constitutional election case exercise their constitutional authority to preserve the competitive processes that make it possible for the elected representatives to claim their authority to govern in the name of the people.

Judges should take responsibility for detecting the malfunctioning of the system of representation which occurs when sections of people are excluded from the ballot, when electoral districts are drawn unequally so that competition is unfair, when communications are monopolised if some speakers enjoy an overwhelming advantage in conveying their speeches.

Otherwise, what is the point of holding an election if its fairness and freedom are undermined without accountability?