Justice Ian HC Chin, sitting as election judge in the Bukit Begunan election petition case, viewed bribery and vote-buying during elections as no wheel of fortune, but a wheel that crushed virtues, espoused vices and spawned untold problems. The election was declared void.

The learned judge made special mention of the voters who had come forward to testify in the case. "It is fortunate that the voters in this case... had broken themselves free from this chain (wheel of fate chaining voters) and came to court to testify for they have realised that this is no wheel of fortune."

The petitioner in the case was Donald Lawan, an independent candidate who sought to declare the election void. The said election had returned the respondent in the case, Mong ak Dagang, a Barisan Nasional (BN) candidate for the Bukit Begunan (N22) state assembly seat in the 1996 Sarawak state election.

Under the Election Offences Act, 1954, an Election Court may declare an election void upon a finding that general bribery or other misconduct has "so extensively prevailed that they may reasonably be supposed to have affected the result of the election". If we remember the Likas phantom voter case, this is not a requirement in relation to the conduct or management of an election.

The petition cited two distinct places where bribery had taken place. One was in Lachau on Sept 5 and the other at a longhouse called Rumah Engkramut on Sept 6. The court held that proof in one incident of bribery is sufficient to dispose of the case.

Bribery is proved if money was distributed to the voters; that the distribution of money was in connection with the election; that the money was given to the voters with the intention of getting their votes and these acts have extensively prevailed as to affect the result of the elections.

Like in the Likas case, the judge in the Bukit Begunan case also recorded in his judgment the nature of the evidence from voter witnesses. This provides a useful reference for future court challenges.

Evidence of bribery

One witness at Lachau, who saw money being distributed to attendees at the Sept 5 function, went home to fetch his camera and he took 24 snaps, with 18 printable, of the events at around noon. The pictures were of persons distributing money, of persons marking palms of recipients (to indicate they had already gotten money) and of persons receiving money.

This witness stated that there were 2,000 people at the function including Leo Moggie. There is testimony that the respondent, Mong ak Dagang distributed money and asked the recipients to vote for him. There was no photograph of this, noted the court. However, the witness did maintain that he was stopped from taking photographs of Leo Moggie with the respondent.

Pictures were taken of streamers showing the BN dacing (a pair of scales) symbol at the function.

The witness subsequently went to the Anti-Corruption Agency (ACA) to also lodge a complaint, but was told that it was not necessary to lodge a report. Unhappy with this response he lodged a report first at Sekama police station in Kuching. The police then directed him to lodge his report at another police station, in Sri Aman, which he did.

This witness upon cross examination admitted to taking RM20 twice from distributors at the Sept 5 function, the second time after he washed away the mark on his palms. He said he knew it was wrong but he testified that since everyone else was taking the money distributed, he might as well take the money. His police report was tendered in court.

Evidence was also given of the use of helicopters to ferry politicians in and out of N22. Helicopters were hired at RM1,800 per hour according to one of the pilots who gave evidence in court. Two helicopters were pictured at Lachau.

Witness disappeared

In the second bribery incident, the headman of the longhouse, Rumah Engkramut, testified that agents of the respondent gave him RM5,580 in RM10 notes for distribution to about 30 longhouse residents who are registered voters in N22. He said that they asked to vote for BN and each person was allotted RM30, half to be given immediately and the balance to be given after BN's victory.

The balance of the money kept for this purpose was with one witness called Douglas who made a police report on the matter. Douglas could not be traced to give evidence in court, but his police report was nevertheless received in evidence. According to the police report, the respondent's agent gave Douglas RM2,790 for "fishing" for the votes of the said longhouse and that the money was to be distributed if the BN wins. This evidence was supported by two other witnesses, other than the headman. All three had gone with Douglas to make the police report. They tendered the money in court.

In his submission, counsel for the respondent, Mohd Salleh Abas, among others cautioned the court in placing reliance on "evidence of partisan witnesses". The court did not dispute these statements on the principles of law as they make good common sense.

However, the court cannot agree among others to several suggestions by counsel of the evidence tendered. The court found that the Sept 5 meeting was a planned meeting even if there was no evidence regarding who organised the event. The judge said, "I agree that who particularly organised the event was not established but it cannot be disputed, by the fact of streamers bearing the symbols of BN that were strung all over that area, that it was organised at least by the party of which the respondent's party is a component member."

Money was to buy votes

The court accepted counsel's point that the respondent and Leo Moggie among others were not photographed distributing money. However, their absence in the photographs distributing money as alleged in testimonies may be explained by the fact that they have other places to visit and the distribution of money could have been made in their absence. The photographs and testimonies "leaves no doubt in my mind that every person who may be voters were the target of the distribution of money."

The court further said that the distribution of money was to procure votes for the BN candidate as testified and "could not have been (as suggested) because of the Gawai festivalbecause that festival had long since passed and neither could it be for Christmas as it was still some months away, even less with Chinese New Year and Hari RayaEven if they are in connection with a festival, because they were given at a function for (the) respondent and so close to polling day, the irresistible inference is that...the money was to buy votes."

To the suggestion by counsel that "it is not normal to expect a bribe to be carried out in a crowded place", the court opined that "with all due respect, there are people who can be bold and brazen and who think that they can get away with anything, which in my view, is just the case herethe fact that it was done openly does not mean that it cannot be true."

While it is found that bribery was carried out at the Sept 5 event on a very large scale which was sufficient to constitute extensive prevalence which affected the result of the election, the addition of events at the Sept 6 incident left no room for any doubt of the extensive prevalence of bribery.

Commendable

Justice Chin did not stop there and interestingly enough ruled that the respondent's agents who were found by the court to be involved in corrupt practice during the election be asked to show cause before him (as they were not parties in the immediate case), as to why the judge should not report to the state authority concerning their corrupt practice.

It must be said that it is not only the voters and petitioner in this case who deserve to be commended. It takes a rare election judge to take such a refreshing view of evidence of bribery and corrupt practices as to rule the election void. There has been one too many cases where similar evidence appear to just slip through the scrutiny of the Bench. It may be that potential petitioners have also to develop the nature (or variety) of evidence to be tendered.

In an earlier case in the Peninsula, Gurdial Singh Nijar v KS Balakrishnan [1993], the petitioner alleged corrupt practices on the part of the returned candidate. It was alleged that the respondent's agent promised voter-settlers that he would deliver land titles to them. This was said on the eve of polling day.

The election judge, Justice Mohd Noor, however found that nothing was mentioned about the election in the meeting of settlers. As the agent who is head of the respondent's election machinery, is also a member of the state legislative council which had in fact decided to deliver titles to settlers, the agent's deed fell within the legitimate scope of the government to pursue promises.

The court further said that even assuming that the agent was in the course of promoting the respondent's elections at the meeting, what he did, it did not amount to corrupt practice because he merely expedited the process of settlers getting their land titles.

Election judges

Although the Chief Justice (of each of the High Courts in East and West Malaysia) may sit as an election judge, he may appoint any judge of the High Court for the purpose as well. This is contained in the Election Offences Act. This is one very important function of the two Chief Justices in the electoral process.

The integrity and independence of the courts in dispensing with justice in election petitions depend in many instances on these appointments as well. Election courts should as a matter of practice deliver written judgements of their decisions even on preliminary objections. This adds to the transparency of court processes. It was unfortunate that the Sungai Siput phantom voter case which lost on preliminary objections, had no written judgement. It was a case of much public interest, involving a serving minister.

Another matter which has not seen much public scrutiny and debate is the transfer of election judges. It was said that Justice George Seah in the 1980s had thrown out one too many preliminary objections raised by respondents and allowed election petitions to be heard on substantive points that he found himself transferred to the peninsula, almost immediately after disposing of one such case. On Oct 8, 1988, the learned judge found himself dismissed in the infamous affair known as the ' Assault on the Judiciary

'.*

We might at this point note the statement

made by Justice Muhammad Kamil Awang in the Likas case of directions. "In my view, it is an insult to one's intelligence to be given a directive over the phone that these (election) petitions be struck off without a hearing." The learned judge has since retired.

Documentation of abuses

There have been instances where election petitions relied on one or two major witnesses and cases floundered in court, when such witnesses cannot be traced for hearing or they retracted their evidence after being found. Protecting witnesses in safe houses may be a necessity in securing their attendance in court.

These assertions by election workers and sometimes counsel require proper documentation. These 'out-of-court' matters require attention and need to be firstly recorded in a wider human rights documentation of electoral processes and abuses. These may be used by human rights workers, parliamentarians and even human rights commissioners to further the course of democratisation of our institutions and processes.

Groups like the Merdeka Centre which grew out of the by-elections post the 1999 general election may wish to consider extending their concerns to cover monitoring of election petitions and the events surrounding these including the professional conduct of lawyers themselves in these politically charged cases. Although the Bar has a disciplinary board for lawyers in breach of its professional etiquette, most lawyers are loath to lodge complaints, especially when counsel are very senior lawyers at the Bar, according to election workers.

The preservation of democracy requires an honest and responsible government. Increasingly an honest and responsible government requires policing by the people as well.

* See the report

by the Lawyers Committee for Human Rights, Malaysia: Assault on the Judiciary. 1989.

SALBIAH AHMAD is a lawyer and an independent researcher. MALAYA! as the name for this column was inspired by the meaning of "Malaya" in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. MALAYA! takes on the process of reclaiming the many facets of independence.