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Wednesday, June 12, 2013

Election Petition - a note to YB Rafizi

I refer to the report on Free Malaysia Today dated 5th 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 11th 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?”

34 comments:

KoSong Cafe said...

Thanks for reminding our PR MPs of the law relating to election petitions. It is almost necessary for every opposition politician to be a lawyer or at least know the law, because he or she will be tested all the time. It is so much easier to be BN politician and be a yes-man or yes-woman.

I believe there are many laymen like myself who are peeved with judgements which unduly favoured BN, especially when we know judges were appointed by them, and even the previous CJ was known to be an ex-Umno lawyer and so on.

Most of us are not really dissatisfied with existing laws, but the application and enforcement, and where applicable, the judgments. I am sure the complaint against the heavy burden of proof should rightly be about the resignation and even despair at having to deal with unfair referees (eg. EC) and judges.
Besides the ex-CJ, we now know of an ex-CoA judge who shows his partiality, and made us wonder about his previous judgments.

We are faced with an incredible lack of credibility: a govt elected on minority votes; a PM linked to a murder which involved his special aide and his police aides; a DPM linked to a dubious land case when he was MB; a Home Minister with a pending assault case; and a FT Minister linked to a judge-fixing case!

Can we be blamed for feeling pessimistic about the election petitions? We have to accept the election results under protest; boycott swearing-in of MPs at the risk of losing hard-won MP status; and much more. It is a situation which we often see in movies where the baddies could get away with most things while the goodies need to follow strictly to rules and regulations.

Anonymous said...

just wondering if opposition come to power: will the judge elected by a foreign government?

Moreover in all countries that have been put as example their current govt. is not made up of party which won the popular vote. Therefore those country lack credibility?

The idea of vilification of leaders is not new, and it has made the current crop leaders image as they are now. And without proof then its just a slander.

Shimano said...

Kosong Cafe is talking nonsense.

Why is it the burden of proof falls onto the shoulders of the accused?

Anwar got his act on secret recording. None of his camp make a big fuss out of it. In western countries, people like these would have resigned and apologize to the public for betraying public trust.

Well, the same is not true for opposition members. Is this the kind of leaders we want for our country? I would rather this country go under military rule rather than BN pass the baton to Anwar and gang through democratic process.

Anonymous said...

Hopeful this is just growing pains.

sebelum ni asyik menang dua pertiga je.

Cina DAP nak mimpi memerintah pun tak pernah dapat except now bila Anwar Ibrahim muncul.

Now, Government ... crush them ... using lawful channels of course :)

Anonymous said...

KosongCafe...here we are talking about burden of proof and you are blabbering away repeating lies and rumours ..
Show us the proofs please.
If not you are just like them lying politicians..

wak

fazillah said...

thank you for your indepth explanation of the laws. kosongcafe is a cybertrooper who is afraid of the truth.

Anonymous said...

Kosong Cafe. That's what you are. A café (French for coffee) that's kosong (Malay for empty). About as tasteful as drinking water. Get a better life, man !

Adam Bachek said...

Our country practises "Rule of Law ". This means "Laws rule our lives from cradle to the grave ".

The courts interpret and apply the laws. In a democracy like ours, the independence of our courts is a must.The courts are guardian of our rights as enshrined in the Federal Constitution.

The above is to appreciate the legal context in which this matter is being discussed.

The Election Court is a special legal creature , with a specified life span, designed to handle election offences. The Judges are normally hand-picked. They possess special skills or apptitude in handling the election petitions.

Precedents have shown that the Election Courts have delivered fair and impartial judgements.The grounds are well argued based on the evidence as preferred by counsels for litigants.

Let's have an open mind about the integrity of the judges presiding in the Election Courts. If they are skewed in their judicial behavior, not only the rakyat of Malaysia, but the whole world of fair minded people will condemn them.

We await the legal proceedings with keen interest.

Apek Malacca








KoSong Cafe said...

I am at least better than those who hide behind anonymity.

If we are prepared to accept corruption in high places with impunity; elegant silence by leaders in the face of accusations; deaths in custody without anyone held responsible; and the list is endless and well documented; then we are a long way from having credible politicians leading our country.

As it is, incumbent PM and other BN leaders could buy their way into winning the GE (only 20% votes necessary to win 112 seats); President of Umno need only to 'kautim' 191 division leaders to remain in his position and by virtue of that, as PM of Malaysia; if we are happy with this formula, then by all means support the status quo. By criticising the present arrangement, I am not assuming Pakatan leaders will be the perfect answer, but more important, to have a freer two-party system where one party can take over seamlessly when out of favour, like in UK and US. Of course, nationalists will find anything from the west as distasteful and wish to stick to what they are used to, regardless of fairness.

KoSong Cafe said...

Sorry, should have been: '...to have a freer two-party system where one party can take over seamlessly when in favour, like in UK and US.'

bru said...

bRO,

THANK you for sharing. Ordinary Malaysians are going to be increasingly dependent on brave and honest views like yours to find their way as we try to move on. So please keep them coming.

Anonymous said...

Kosong cafe

In UK and US they have 2 or 3 major parties and a few manorities. Please research and search for data before you use this 2 countries as an example of two parties system

Anonymous said...

You punya page bergoyang2 sakit mata nak baca.. kenapa?

Darahtuah said...

KoSongCafe,

PM cd win by having 20% popular votes n kautim with 191 UMNO Divisions..

U're either practising double std or having selective memory!

Remember how did Pas win Kelantan in 2004? It was under the same "The First Past The Post System"!

DSN has to kautim at least the 191 Divisions. Do u know how many LGE, LKS & KS have to kautim? ONLY 20! Anwar n Nik Aziz were not even elected as powerful Ketua Umum n Mursydul Am respectively!

Fyi, this year, under a new polling system, all MT candidates have to face 170,000 delegates..blh kautim ka?

U... Hipocracy of the highest order!

Anonymous said...

Totally agreed...Sir.

Anonymous said...

kosongcafe...another member of RBA? Just wonder...

Hj Zul
Kelantan

IT.Sheiss said...

A lawyer friend of mine said the same thing about the burden of proof that voters who managed to rub off the indellible ink voted again and that the presence of foreigners indeed cause the result to go the other way.

This lawyer also said that it is not enough to prove that there indeed were phantom voters present but that their votes altered the result against the plaintiff/complainant.

Ellese A said...

What I don't understand is how ignorant pr supporters are of the law. They always want the law to be interpreted according to their manner despite the law being the same in other liberal democracies. They don't know what rule of law means. Don't know what fairness and justice means. They even propounded that election issues be divided by a tribunal set up by pr and tried by judges from PR friendly people. Really otak tak betul,

Ellese A said...

divided should be decided....


Further there's too many non sensical allegations. For example, how does lights out if any affect the voting if the pr representatives are aware of it and did not object to the surrounding. Only relevant people can be in the classroom and if there's any outsider the pr reps can object. Further it needs signature of pr reps for the votes tally.

We cannot spread non sensical lies and falsehood,

Anonymous said...

I am stupid.

KosongCafe

Mustapha Ong said...

A good analysis and political gesture on the continuing dispute of our 13th general election. However, as a blogger for more than 20 years now, I wish to quote the following:

"Politics is the art by which politicians obtain campaign contributions from the RICH and votes from the POOR on the pretext of protecting each from the other" - Thomas Jefferson.

This is absolutely political protection money like our gangster heads in the street, asking for their monthly protection money from our traders in the city! Politicians are no better but at least the rakyat will benefit if it's the BN government..BRIM 1,2,3,4,...?

KoSong Cafe said...

For the first time, someone wonders whether I am a member of RBA! I have never heard of it before and I think the claims of DAP paying 200-2000 bloggers Rm3,000 a month must be a big joke, just because someone somewhere claimed he is a member and Utusan and others took it from there.

FYI, I am a senior citizen and I am using the basic Maxis home wifi at Rm59 pm which is providing me only 2 weeks of decent use before the quota is up and throttled down. Would I be using such if I am paid Rm3000 a month?

I had volunteered twice (ie. not paid) as an election agent for DAP (2004 and 2008)for morning and afternoon (other than being relieved for me to vote) while MCA was served by 2 persons (before and after lunch) who were paid Rm50 each. I am not complaining (would not have done it second time if I did) but just to show the difference between opposition parties who relied much on volunteers unlike BN who had to pay for everything to secure support. The best comparison is when BN leaders had their ceramahs (provided transport, paid allowances, free t-shirts and so on) while those who attended PR's went on their own and even contributed to help in their campaign expenses.

We can go on and on, arguing over everything, but you are entitled to your opinion and I mine. The reason I am leaving comments in various websites is to voice out so that others know there are differences in opinion, especially when the msm is owned and controlled by BN.

I am encouraged by the increasing support shown at the GE, and I am sure it is due to collective efforts by PR leaders, leaders of NGOs like Bersih, and disparate groups or individuals like myself (each with different objectives but united by a common disdain for what's going wrong) in countering the daily propaganda fed by msm.

As to the comparison between Umno elections and that of DAP or PKR, if those who cannot see the difference between those in power (fighting for spoils) and those outside power (being through jail or detention), again they are entitled to their opinions. I believe if and when Pakatan gets to rule, there will be power struggles too and I think we should cross the bridge when we come to it. Meanwhile, as far as I am concerned, it is about dislodging an entrenched ruling party who has all the advantages of incumbency in ensuring their continued rule.

Anonymous said...

The way I see it post GE13 results.. PR campaign was the most fraudulent, prior to voting day PR produced videos of blackouts at a polling station, Bangla as voters, busloads of foreign looking Malaysian, thousands of FB spewing lies, racial slanders,deceits etc & made these go viral during polling day..!! BN play the normal game thru MSM while PR has all the alternative media. PR won the urban voters while BN won the rural + Sabah/Sarawak. Yet PR cried foul..chisss!!

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KoSong Cafe said...

I wish to thank Art Harun, for publishing my comments, even though I appear to be alone in a lion's den, which in a way shows I am not a member of RBA! But I am leaving it to readers to judge for themselves whether I make any sense or am more credible than those critics.
I am surprised at Anonymous 09.39's 'BN play the normal game thru MSM while PR has all the alternative media...' He or she can treat BN's control of msm (as normal, without a tinge of unfairness) and PR's more aggressive use of the internet (which happens to be just an alternative because of the exclusive control of msm by BN) as fair! He or she cannot even see the difference between the former (which should have been shared fairly; remember Rais's ridiculous offer of 10 minutes for each party?) and the latter which is open to all (including BN). It is like saying because PR is making good use of the internet, they are not entitled to msm!
I wish to point out the difference between system weakness in our election system and a one-off error in adding up the votes, for example. The former is more serious even if it involved one case because it was proof the system in place had not been followed in practice. For example, my address had been changed by EC (without my knowledge, let alone consent). It meant there is no proper control over indiscriminate changes to voters' addresses (for the purpose of reducing opposition supporters in one constituency where the majority is slim and increasing another where the majority is unaffected by the transfer). This is serious because one case could be the tip of the iceberg of more such deliberate unlawful changes. In case anyone out there think I am making this up, it happened to me and I am willing to testify in court. For those who experienced irregularities in their voter registration; someone had voted earlier; letters from EC (or even PM!) addressed to strangers using their addresses; and so on, then they will believe what PR, Bersih and other NGO officials complained about.
Sometimes, with the benefit of hindsight, it seems futile for the small number of irregularities mentioned (why they as in EC or BN bothered comes to mind) to affect the result, but it should not be regarded as unimportant. Of course, it may not be good enough to overturn an election result, but it would certainly help the reputation and integrity of EC if such cases are continuously reduced or prevented altogether. From what had been reported, it seems EC had only corrected mistakes pointed out by others, instead of making necessary changes to prevent such irregularities. For eg. if it is true that there were unusual number of voters over 100 years old, surely EC should have in place a routine procedure to double-check such cases, a result of deaths not properly reported to them.

Anonymous said...

Well first of all Pakatan Rakyat fans need not perasan that they are the popular ones coz lets face it their leaders cant even work together. One does hate the other and vice versa. The only thing in common between them is the desire to bring UMNO and BN down.Thus all kinds of lies are spread to the rakyat.Till now we are waiting for the 40k banglas they claim to be called in as bn voters...what a laugh...n so sorry dumb people like kosong cafe or tin kosong watever believe these lies.Why not u ask DAP and PKR how was their own internal election went? Anwar the so called democracy fighter did not even put himself up for his party election...haha.

Anonymous said...

"300 voters had managed to wash off their so-called indelible ink immediately after voting"

If 300 voters (assumption) were able to do this, would this point to:

May be, and may be, if one person claims the wash-off, it may be acceptable but with such a large sample size, the very reason why the indelible ink was introduced (to prevent cheating/double voting) is defeated. I believe as long as it can be proved that the indelible ink is a farce, then it points to an intention to cheat. The EC Head has been shifting his goal posts a number of times in explaining away or in pleading ignorance over the quality of the indelible ink. Surely Art, no one with the right mind would expect to tail every voting citizen to determine whether he/she would or have voted twice. That would mean essentially groping in the dark. Law is essentially a matter of interpretation. My conviction still holds to the reason why it was introduced/implemented and when it fails to do what it was meant to, then proving mala fide would be the right course of action.

KoSong Cafe said...

To Darahtuah (12 June 22:57), I feel vindicated with this:
“What we want to follow is the ‘guided democracy’. As such, there won’t be any contest for the post of president and deputy president. After all, we just had our general elections,” Tengku Adnan told reporters at his office in the Dewan Bandaraya Kuala Lumpur building today.

In keeping with the council's decision, the 191 divisions will hold an informal meeting to choose the top leaders. Almost 2,500 representatives will attend the annual general meeting.'

Anonymous said...

kosong cafe,

u r, like your name aptly implies, kosong..

and u believe all those lies concocted by the oppo?

i bet u also believed the lynas hypocritical green movement eh?

haha..

kosong vessel screams the loudest!

Anonymous said...

kosong cafe,

you want to know why art harun published your comment?

so, u can see how kosong your brain is.

Anonymous said...

When I was a little child, I liked to made fun of my friends' names. So did many of us when we were very young. But now that we are grown up, my friends and I don't do that anymore.

So I would like to say this to those who make fun of the name of kosong cafe: grow up! Argue your case like an adult and do not behave like a budak! But of course, if you are really only a small kid, you are entitled to act like one, too.

Amanda said...

This is cool!

Anonymous said...

Appreciate Art Harun's professing the Law...where's the law practiced in the Altantuy's case?..okay...what to do..Judge n prosecutors made technical mistake ie human error ma..sorry but the bottom line of all Laws however it is interpreted is to dispense Justice.Period.

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