ARTiculations

Posted: 11 Jun 2013 08:34 PM PDT

I refer to the report on Free Malaysia Today dated 5^th June 2013 titled "Impossible To Win Election Petition".

I have written before on the standard of proof in election petitions. Thus I will not comment on YB Rafizi's statement on the same subject.

I wish to however address two issues.

Firstly, allow me to state the reason for the high standard of proof which is required to win an election petition. To understand the reason for the standard of proof, we need to know – and understand – the basic premise of an election petition.

The premise of an election petition is an electoral result which is being challenged.

To put it simply, there has been an election. And there is a result of that election. That result is born out of a democratic process which takes the form of an election. That result therefore represents the WILL OF THE MAJORITY as expressed through the election process. The candidate which is preferred by the majority is therefore declared the winner in the election.

Now, what is being challenged in an election petition is actually the will of the majority expressed in the election. Being so, in order to sustain that challenge, sufficient reasons must be shown to unseat the will of the majority. Those reasons proffered by the challenger must thus satisfy a high legal burden. Otherwise, the will of the majority could easily be defeated in the Election Court. That would make a mockery of democracy.

Take this scenario as an example.

Candidate A won an election by 3000 votes. Candidate B files an election petition showing that 300 voters had managed to wash off their so-called indelible ink immediately after voting. Videos of a bus full of people who looked like Bangladeshis parking itself at the voting centre were also produced.

Here, it is not sufficient for candidate B to just show those evidences. He must demonstrate how those things affect the result of the election. In respect of the 300 voters who washed off the ink, it must be shown that they had, in addition to washing off the ink, managed to vote twice. In relation to the bus, it must be shown that those people were indeed foreigners who were not entitle to vote and they did vote.

If the laws were to permit the result to be vitiated just by showing 300 people had washed off the ink and a bus full of Bangladeshis was parked at the voting centre with nothing more, what that would mean is that the will of the majority could be over-ridden and set aside by the minority. That would be undemocratic. I am sure in such event – of that happens to a Pakatan Rakyat's candidate – the PR would be complaining of how undemocratic the laws are!

In the above scenario, any complain in respect of the procedural non-compliance must therefore be supported with evidence that at least 1500 votes were affected by the non-compliance. If that is done, then candidate A could not and should not have been the winner. Therefore, the result would be vitiated and another election must be called.

That is how it works.

The second issue which I would like to deal with is this.

The aforesaid report in Free Malaysia Today goes on to say:

"On that note, the Pandan MP said that the electoral laws in Malaysia are skewed to allow and tolerate discrepancies, unless it hits a criticial level that can alter the election results."

I do not know as a fact whether YB Rafizi did say that. On the assumption that he did say that, I would like to respond to that statement.

It is NOT CORRECT and NOT TRUE that electoral laws in Malaysia are "skewed" to allow and tolerate discrepancies.

Our election rules are mainly contained in an Act called the Election Offences Act 1954. This Act is mainly based on the Common Law principles and the provisions of the United Kingdom's Representation of the People Act 1948 (which later became the Representation of the People Act 1983). The provisions of our laws are not only similar to the UK provisions but also to the Indian provisions.

So, our electoral laws are not peculiar to us. In hearing election petitions, our Election Courts are normally referred to authorities and judicial precedents from the UK and Indian Courts. Sometimes we refer even to the Canadian and Australian cases. If our laws are said to be skewed to tolerate discrepancies, then the UK and Indian laws are also skewed as such!

In a report dated 11^th December 2012 by a Law Commission in the UK, consisting of eminent jurists, namely, The Rt Hon Lord Justice Lloyd Jones (Chairman), Professor Elizabeth Cooke, Mr David Hertzell, Professor David Ormerod and Frances Patterson QC, the Commission among others, states:

"In our consultation paper we summarised the jurisdiction of the parliamentary election court as:

i. reviewing the votes in a scrutiny, potentially declaring another candidate elected as the person having the most lawful votes; or

ii. examining the validity of the election, potentially resulting in an MP being unseated and a new election being called. Here, we distinguished between:

(a) invalidity for breaches of the rules by electoral administrators;

(b) a successful candidate's corrupt or illegal practice; and

(c) a successful candidate's disqualification from office."

That is precisely what our Election Courts are empowered to do too. Section 32 of our Act says:

"32. The election of a candidate at any election shall be declared to be void on an election petition on any of the following grounds only which may be proved to the satisfaction of the Election Judge:

(a) that general bribery, general treating or general intimidation have so extensively prevailed that they may be reasonably supposed to have affected the result of the election;

(b) non-compliance with the provisions of any written law relating to the conduct of any election if it appears that the election was not conducted in accordance with the principles laid down in such written law and that such non-compliance affected the result of the election;

(c) that a corrupt practice or illegal practice was committed in connection with the election by the candidate or with his knowledge or consent, or by any agent of the candidate;

(d) that the candidate personally engaged a person as his election agent, or as a canvasser or agent, knowing that such person had within seven years previous to such engagement been convicted or found guilty of a corrupt practice by a Sessions Court, or by the report of an Election Judge; or

(e) that the candidate was at the time of his election a person disqualified for election."

As we can see, the provisions are identical. (The power of "scrutiny", ie, to recount votes is contained in section 50 of our Act.)

The Law Commission further states:

"Administrative breaches

How a breach of a rule pertaining to administration of the poll should affect its validity involves a balancing act between giving teeth to the rules and achieving a certainty in electoral outcomes. The law has therefore placed some restraints on the consequences of breach. As our consultation paper explained, a challenge based on ground 2(a) above is essentially founded on the breach causally affecting the outcome of the election. In contrast, a candidate's corrupt or illegal practice or disqualification vitiates the validity of the election irrespective of the effect on the result.

The law's restraint is judicial in origin. Section 23(3) of the 1983 Act states that no UK Parliamentary election shall be declared invalid if it appears that: (a) the election was so conducted as to be substantially in accordance with the law as to elections; and (b) the act or omission did not affect the result.

Considering identical provision in the Representation of the People Act 1949, Lord Denning MR in Morgan v Simpson re-stated its wording in positive form; a breach of the rules must affect the outcome of the election in order to result in its nullity. An election will be held not to have been conducted substantially in accordance with the law as to elections if there was a "substantial departure" such as to make "the ordinary man condemn the election as a sham or a travesty of an election by ballot". The bar was thus set very high for an administrative breach to invalidate an election irrespective of its impact on the result."

Again, that is PRECISELY the position in Malaysia. In respect of procedural non-compliance, we need to prove that such non-compliance must affect the result or outcome of the election. Please see section 32 (b) as reproduced above.

In so far as corrupt or illegal practices are concerned, these are divided into two categories:

a) where the corrupt and illegal practices were committed by the candidate himself or his agent, or with his knowledge or consent, the result is automatically vitiated regardless of whether such acts affect the result or not. (section 32 (c)).

b) where the corrupt and illegal practices have so extensively prevailed, the result would only be vitiated if they may be reasonably supposed to have affected the result of the election. Here, we do not have to show that the acts were done by the candidate, his agent or with his knowledge or consent.

What is being emphasized under sub-paragraph (b) above however is "reasonableness." The question is, after looking at the totality of the evidence, is it reasonable for the Court to suppose that the result has been affected by the acts.

In respect of non-compliance of the rules or procedures, the question, as Lord Denning puts it in Morgan v Simpson:

Was there "substantial departure" such as to make "the ordinary man condemn the election as a sham or a travesty of an election by ballot". The bar was thus set very high for an administrative breach to invalidate an election irrespective of its impact on the result."

That IS the position in England and that IS the position here.

Our election laws are not skewed to tolerate discrepancies. Our laws are based on the English laws as well as other respected jurisdiction within the Commonwealth.

In fact I dare say that our election laws are even better than the English laws. That is because here, we have an automatic right to appeal against any decision of the Election Court to the Federal Court (where at least 3 Judges will sit). In England, the decision of the Election Court is not appealable. A judicial review may however be asked for. But that is not automatic as judicial review may only be invoked if the High Court grants leave to do so.

When our laws place a high burden on us and do not always work in our favour or do not support our cases, it does not speak well for us to say that our laws are skewed.

Now, numerous election petitions are filed. Pakatan Rakyat is challenging many election results where the Barisan candidates had won. Conversely, Barisan Nasional is also challenging many results where the PR candidates had won.

I will bet my last dime that the Pakatan Rakyat lawyers will argue the same thing as the Barisan Nasional lawyers' would in defending the results of the election which favour the PR candidate. In other words, all the above arguments which I have set out, will also be used by PR to defend the result of the election where the PR candidate had won.

Now, doesn't that give new meaning to "fair is foul and foul is fair?"

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