Challenging an election (Part 1)

Members of the Election Commission (EC) are appointed by the King "having regard to the importance of securing an Election Commission which enjoys public confidence" (Art 114(2)). That confidence appears to be called in question post the 11^th general election concluded on March 21.

There are many ways whereby an EC secures public confidence, although these are not elaborated under the Federal Constitution. Among others, the EC must be and be seen to be independent.

The law's treatment of 'independence' of the EC is predictable. While the term 'independence' is absent in these provisions, the law as set out in the constitution, lays out a framework to allow the EC to discharge its functions honorably. Independence is equated with 'security of tenure'.

For instance, members of the EC cannot be sacked at will, like former deputy prime minister Anwar Ibrahim in 1998; although they may be disqualified. The law on removal from office is similar to that of a judge. That may be reassuring. However, in recent memory, Tun Salleh Abas, former Lord President and two of his brothers on the bench were unceremoniously sacked in an incident popularly referred to as the "1989 assault on the judiciary".

What this suggests is, political events or responses may somehow override these legal niceties.

An impeachment of EC chief Abdul Rashid Abdul Rahman is suggested by 'comeback kid', Lim Kit Siang of the DAP. That is unprecedented in our young political history.

Former Opposition leader Abdul Hadi Awang, also PAS president and former Terengganu Menteri Besar who on March 21 conceded defeat of his state to BN, announced on March 24 that his party would not recognise the poll results. He alleged irregularities, foul play and a conspiracy between the EC and BN.

The beleaguered EC, had two press conferences within the space of 24 hours. Abdul Rashid first stated that an internal inquiry had been done and that the report would be ready in 10 days. On March 24, he announced that he would welcome a royal commission answerable to Parliament to conduct an independent probe.

The calling of a royal commission was mooted by Keadilan and PAS. PAS had also lodged a formal complaint with the Human Rights Commission of Malaysia (Suhakam) on March 23. There is now a wave of calls for the resignation of the EC chief.

The EC chief's concern with the internal probe or the royal commission is not about the election results. It is to investigate complaints of the EC's alleged failure to discharge the functions of its office, the strengths and weaknesses of the EC "so that the integrity of future EC chairpersons and members is not affected".

The election results are still in Abdul Rashid's hands. It is likely that the results will be gazetted without reference to the internal inquiry. He has confirmed that the results are official and can only be challenged in an election court.

An election is challenged through an election petition. This must be filed within 21 days after the official results are gazetted. While the Election Offences Act allows any voter to file a petition, almost all petitions have been filed by candidates.

In 2003 the law was amended by a BN-majority Parliament to increase the amount to be paid as security for costs from RM2,000 to RM10,000 per petition. No petition can be filed until this amount is first paid in court. The rationale of this particular increase was not offered at all in Parliament by then de facto Law Minister Rais Yatim. Perhaps like the increased deposits for candidates, it was to ensure 'seriousness' in these endeavours.

An election petition challenges the election results, not the independence of the EC. Thus whether or not the EC is independent is technically irrelevant to the case.

There are three broad categories of grounds of challenge; ineligibility of candidates, election offences and conduct of elections.

The EC comes under scrutiny when a petition challenges the conduct of the elections. This is limited to the "non-compliance with any written law relating to conduct of any election". What the petitioner must prove in order to succeed on this ground is that the election "appears" not to have been conducted according to the law and that this affected the result.

Whether that written law in the first place is fair or otherwise is not a question an election court can resolve. That may require a constitutional-human rights challenge.

In some pre-1999 cases, the unlawful conduct of EC personnel "that affected the result of an election" included the failure to order a recount, making unauthorised stopovers from the polling station to the counting centre, opening of postal ballots elsewhere than in the counting centre and allowing the wife of a voter to vote on his behalf.

In one 1988 case, PRM candidate-lawyer Abdul Razak Ahmad, argued that although there was no law (in 1988) that postal ballots must be mixed with those at the polling station, the failure to mix the ballot papers offended the principle of secrecy of votes in the election. The failure to mix the ballots "tends to show.the police and army personnel have voted for a particular candidate". His argument was accepted. Sometimes, intelligent drafting of court papers may offer a respite from what the law says or does not say.

The instances where the conduct of an EC officer might have affected the conduct of the election are not closed and examples as reflected by the realities of polling day abound.

Can a tainted electoral roll affect the conduct of an election? The EC is constitutionally mandated to "prepare and revise the electoral rolls".

Once upon a time, not so very long ago, in 2001, the election court in Likas, Sabah held that the election which returned Yong Teck Lee (BN), was void among others (there were several grounds) on a tainted electoral roll which had "phantom voters" registered ([2001] 3 MLJ 433). The 1998 roll for Likas contained the names of non-citizens, names of several persons on one temporary identity card number and people with fake identity cards.

One witness, a former commissioned police officer and a member of Parliament said that are 2,975 names on dubious identity card numbers on the Likas roll. He had raised the matter of verification of identity cards of voters with the National Registration Department in Parliament. However, he was told that it was a secret matter which the government cannot disclose. The same witness had lodged police reports on at least 10 names with fake identity cards but no action was taken.

The judge ruled that the tainted roll affected the management of the election. The election was not conducted substantially in accordance with the law irrespective of whether the alleged irregularities had affected the election or not.

If you are still with me at this point, what the judge did was to depart from earlier cases which insisted that the conduct of the election must have affected the result of the election. I think he found the conduct of the EC quite reprehensible and this moved the judge to make his ruling.

The EC in that case, certified the roll for 1998 without holding an inquiry to objections of more than 4,585 phantoms on the roll. This made the roll "not bona fide". The EC as "custodians of free and fair elections" had failed to maintain an electoral roll as required under the law, namely the constitution. According to Muhammad Kamil J, the certification was "ultra vires the Constitution and is in fact illegal".

Earlier, when the election petition was sought to be struck out on preliminary objections on jurisdiction and procedural flaws, the judge echoed the late Tun Suffian LP's statement in a case decided in 1976, "Here we have a written constitution. The power of Parliament and of State legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please."

Before this case had a chance of being applied in the next general election, the Elections Act was amended in 2003 to prevent any questioning of the certified electoral roll in an election petition to challenge the results of an election. The offending law is section 9A. In other words, the "constitutional intent", as interpreted by the Likas court is now overruled by a mere Act of Parliament.

It remains to be seen whether section 9A will be challenged in this year's round of election petitions and/or constitutional challenges. Even if the roll is not raised directly, what is important from Likas is whether management of an election is affected. Then again if the EC had knowledge of an irregular roll but still went ahead to certify it, then surely the law must provide a remedy?

It might be noted at this election, that all EC officers on duty on polling day have denied the existence of phantoms on the roll. The EC chief might have shot himself in the foot when he told a private television station, "A total of 9.2 million voters registered under various laws in the past had been manipulated by certain parties and we could not do anything about it."

This year, it gets a little more interesting as the EC purportedly used more than one roll in some places. EC officers can be compelled to testify on any matter within their knowledge including registration of voters. In Likas, an EC officer gave evidence that he registered a voter on the strength of an identity card and did not seek verification from the National Registration Department.

However Likas is not the only case involving an electoral roll although it is the more "infamous".

In an unreported election petition case, Wong Phin Chun v The Election Commission & Others (Election Petition No. K1 of 1994. Kota Kinabalu), the petitioner did not allege an illegal roll. What was alleged was that some voters were not qualified to vote as their identity cards were fakes and this was against the law and it affected the result of an election.

Steve Shim J, ruled that the petitioner's case is a case of "qualification of voters concerning residence" and this cannot be raised in an election petition. The Attorney-General supported the argument raised by the respondent. The election judge said that these issues are matters to be raised at an inquiry of voter registration under the 1971 Elections (Registration of Electors) Regulations.

Steve Shim J went further to say that if the court were to deal with qualifications of voters, it would usurp the function of the EC and "thus contravene the intention of Parliament in providing stability of election results".

The Likas court was earlier asked to consider the Wong Phin Chun case (see [2000] 3 MLJ 434). That had to deal with a striking out action among others, that the challenge to an electoral roll by an election petition is not valid and the election court has no jurisdiction to hear the case.

The Likas court ruled that it has jurisdiction to hear a challenge in respect of a tainted roll which is vitiated by an illegality. It considered the fact that there is no law (then) to disallow the election court to assume jurisdiction and more importantly the court said, "there is no provision in any law that..a challenge..may be brought before another forum which forum has not been established by the law".

Muhammad Kamil J in Likas chose to differ from Steve Shim J in Wong's case that the election court has no power to hear complaints of illegality over issues like entry of names of non-citizens or disqualified citizens who are not entitled to vote in any election to Parliament or State Assembly.

Besides the introduction of section 9A in the Elections Act, section 32 of the Election Offences Act (as amended), now says that a petition is limited to only the grounds stated in the section. I think these amendments show the attempt by Parliament to in fact, thwart the Likas decision.

As election courts are courts of similar standing (concurrent jurisdiction), the court in Likas and the Wong Phin Chun case stand on their own and each case is merely persuasive to the other. There was no provision of appeal then.

This was remedied in 2003 which instituted a procedure of appeal from an election judge to the Federal Court. This procedure allows an appeal court to consider which one of two different cases on a similar point is the more authoritative precedent. The Federal Court is then the final authority in interpreting the electoral laws.

While polling on Sunday has to bear with the redelineation exercise and other rules on candidacy and campaigning, petitioners to an election petition would now have to deal with changes in the law and procedure of court action. General Election 2004 is perhaps not quite over.