"The only guide to a man is his conscience."*

A couple of years ago, I was tasked to check on the point if independence of the Election Commission (EC) meant that it cannot be taken to court on an election petition to challenge the results of an election.

If one works on a first principle basis (gut feeling to some) "independence"does not mean non- accountability.

The concern I believe, arose from a conversation with EC chairperson, Abdul Rashid Abdul Rahman at one of the several dialogue sessions Ikmas, UKM had with the EC during Phase1 of its Electoral System Research Project. I was not privy to that, Putrajaya being too far away on any morning.

The source of this assurance on the EC's part found support in an election petition case, cited as Dr Lee Chong Meng v Abdul Rahman bin Haji Embong, Returning Officer & Others [2000] 6 MLJ 96. Lee lost to Fong Kui Lun in the 1999 general election. He petitioned Fong, the returning officer and the EC.

In this case a question arose if the EC and its officers should be named as parties to an election petition in view of section 6 of the Election Commission Act which protects them in the "execution of (their) office."

Augustine Paul, election judge, ruled that the commissioners and officers of the EC should not be named parties to an election petition, although they may be called as witnesses to give evidence. They may be named parties if they have been involved in any misconduct such as a corrupt or illegal practice.

"(T)he Commission is an independent body and is the protector and guardian of the electoral process which is the foundation of the democratic system of government. To make such a body respondent would mean that it would have to defend itself in respect of actions it has taken. This will undermine its independent status. That does not mean that the Commission is not accountable for its actions. It can be summoned by either party as a witness to account for its actions."

The EC in any case, is not immune to judicial review by the High Court. The EC was taken to court before nomination day for a judicial review of its purported disqualification of three of Keadilan's candidates for 2004 general election, namely Mohd Ezam Mohd Noor, Tian Chua and Irene Fernandez.

Procedural flaws

The fact that the EC or any of its officers are named in Lee's case is not a procedural flaw as to cause the entire case to be struck out without a hearing. Augustine Paul J referred to Indian decisions and several in the Commonwealth for this proposition.

Case law may change faster than legislation. A quick Internet search confirms the status quo (see 2001 SOL Case No 617. ) In that case the returning officer and a commissioner were named as parties. They objected to their inclusion. The court allowed their application. The court said that a petition cannot be dismissed merely because some person who was not necessary party has been made a party. It cannot however allow the addition of a necessary party who has not named in the original petition. If a necessary party was not named, the petition has to be rejected.

Very few of our own election petitions have survived preliminary objections on procedural flaws. For instance, Parti Socialist Malaysia (PSM) candidate, Jeyakumar Devaraj filed a petition against Samy Vellu (Barisan Nasional) in GE1999 raising very important issues on phantom voters on the roll and 'bussed-in-voters,' but his petition failed on preliminary objections.

Devaraj had a potential landmark case. Unfortunately, no grounds of judgment was written by election judge Wan Adnan J, and consequently the case did not merit a report in the law journals (unreported Election Petition No 26-1 of 2000. Taiping). The provision for an appeal to the Federal Court (an inclusion in 2003) may provide respite for GE2004 petitions.

Devaraj ran on a DAP ticket in 1999 and under Keadilan in GE2004. The Registrar of Societies had refused registration of PSM. On appeal, the home minister, Abdullah Ahmad Badawi disallowed registration on "national security" grounds, which said the grounds were not disclosed. PSM has taken the home minister for judicial review. The matter is still pending.

An election petition is heard by the chief justice of the High Court of Malaya. There are two of them, one in East Malaysia and one in West Malaysia. That chief justice may and he usually does, nominate any judge of "his" High Court to be the election judge. Thus who gets to be election judge pretty much depends upon the two chief justices.

This was a matter of much concern in GE1999 as the judiciary had came under heavy criticism from civil society groups and human rights defenders. The phone-call incident to election judge Justice Muhammad Kamil Awang in the Likas case, added to the growing public distrust of the judiciary and the legal system in "political" cases. GE2004 which ushers a mandate for Abdullah Ahmad Badawi as the fifth prime minister, comes in the wake of this uncertainty.

Walk the talk, PAS

When recounting for Kelantan was done on the morning of March 22, it was as if a PAS win in Kelantan hung on a prayer. PAS lost Terengganu on March 21 and had been the state government in Kelantan from 1990. At least two residences in my lorong (short street) left their PAS flags on bamboo poles flying high from their mango tress after putting away opposition buntings in their yard that day.

PAS won Kelantan by a paper-thin majority of 3 seats when the counting ended at 2pm. Tuan Guru Nik Aziz was reported to have sequestered PAS candidates at party headquarters to avoid a crossing over through a buy-out. Malaysiakini reported a source claiming that RM12 million was offered per legislator with offers coming from KL as well.

The preceding day, Nik Aziz appealed to the conscience and warned his people of God's punishment if they switched support to Barisan Nasional (BN).

"We will not legitimise the money they received, the water they drink or the rice they swallowed. They will earn the wrath of God for their entire life and we will receive God''s blessings."

It takes three PAS legislators to cross the floor now or anytime before the next general election. PAS is not out of the woods. It has been said, that only God knows the hearts of men and women, but PAS has good reasons to worry about law, if nothing else.

Trust, mandate of rakyat

In October1990, when PAS regained Kelantan after a hiatus, two assemblymen from Sungai Pinang and Limbongan, who won on an opposition ticket, left their parties after being sworn in, an act perceived as a betrayal of the mandate given to them by their constituencies.

The state government changed the state constitution on April 25, 1991 to add Art. XXX1A. The change provides that if any legislator were to resign or is expelled from his party, his seat in the state legislature shall be vacant.

This means that a resignation or expulsion would not have the effect of "crossing over" and instead a fresh mandate from the people would be made to fill the vacancy. This is sound on the principle that as the rakyat have voted them into office, the decision must remain vested in the "sovereign" rakyat on a vacancy. This amendment protects the trust and mandate of the people.

Pursuant to that amendment, the state legislature passed a resolution on July 3, 1991 that the two assemblymen had ceased to be members of the state legislature and it declared the seats for the two constituencies vacant.

The EC then declared a by-election with polling on August 26. Both ex-assemblymen ran under a BN ticket and lost to Haji Samat bin Mamat and Haji Mahmud bin Haji Yaacob.

Failed BN candidates

In a tactical move, the failed BN candidates filed a constitutional challenge instead of challenging the results of the by-election by way of an election petition. They took the state government to court claiming that Art XXX1A of the Kelantan state constitution infringed their right to freedom of association under Art. 10 of the Federal Constitution.

The case is Dewan Undangan Negeri Kelantan and Another v Nordin bin Salleh and Another [1992] 1 MLJ 697. There is nothing in the case report to show if counsel for the state of Kelantan raised arguments that the election to the state assembly was constitutionally premised on the confidence of electors and their individual fundamental right of association must be weighed against this premise.

On appeal, the Supreme Court in a majority of 3 to 2 judgement struck down Art XXX1A as being an infringement of Art 10 (1) (c ) on freedom of association. The majority judgement relied on a landmark Indian case, Maneka Gandhi v Union of India 1978 SC. The court did not appear to distinguish the facts in Maneka. It related to the 1970 "false" Emergency in India and the curtailment of fundamental liberties by the Indira Gandhi government.

What was more unsatisfactory in Malaysia was that the results of the by- election were by-passed and the court reinstated the assemblymen in question despite a no-return in the by-election. Unless so challenged, the no-return is empirical evidence that the electorate in Sungai Pinang and Limbongan had rejected the two assemblymen. The views of voters were inconsequential to the court.

The majority judgment was led by Lord President Abdul Hamid Omar and Supreme Court Justices Gunn Chit Tuan and Edgar Joseph Jr. The two dissenting judges were (the late) Harun Hashim and Mohamed Yusoff. There is no record of a dissenting judgment. All these judges are no longer on the bench.

Flighty legislators

There is some respite in that human rights defenders, may find the principle of non-derogation of fundamental liberties useful. However, the decision, I think failed to detect the malfunctioning of the system of representation.

Kelantan no longer has benefit of Art XXX1A in its state constitution which was declared void "to the extent" that it impinges upon Art. 10 of the Federal Constitution. **

In a wry note in a crossing-over case in Sabah, Justice Syed Ahmad Idid, has this to say, ""In politics as in war and business, the employment of tactics, the strategising of activities and misleading opponents are the usual order of the day ... Legislators must be both respectable and respected, and they, whether parliamentarians or state assemblymen, must not be flighty." ([1993] 3 CLJ).

Will conscience and the wrath of God prevail over PAS legislators despite rumours of a buy-out? It remains to be seen if Kelantan PAS leaders would walk the talk about being free from corruption; something which prime minister Abdullah Ahmad Badawi has found to be quite the plague he must either cure or endure in his administration.



Note:

* The full quote is: "The only guide to a man is his conscience, the only shield to his memory is the rectitude and the sincerity of his action. In the court's view, it is an insult to one's intelligence to be given a directive over the phone that these petitions should be struck off without a hearing, and above all, it is with prescience conscience that the court hears these petitions. God has given the trial judge the strength and fortitude, as a lesser mortal, to act without fear or favour, for a breach of oath of office and sacrifice justice, and above all to truly act as a judge and not a 'yes man'." Justice Muhammad Kamil Awang, election judge, in Harris Mohd Salleh v Ismail bin Majin, Returning Officer [2001] 3 MLJ 433.

** The Sarawak state constitution has a provision of similar intent in its Art. 17(7). In addition Art. 17(7) (b) sought to protect the provision from any challenge on freedom of association: "For the avoidance of any doubt, it is hereby declared that this (provision) shall not be taken as imposing restrictions on any person from becoming a member of any political party, permanently or otherwise."