Loyal Followers

Monday, January 12, 2009

P.036 by-election - has the BN committed "corrupt practices"?

There is no better time for any government of the day to announce the launching of development projects in any particular constituency than the time immediately preceding a by-election in that constituency and during the ensuing campaigning period. The people of Kuala Terengganu can't help but to feel that the Gods of developments and gifts have suddenly descended from the high heavens in the last week or so. If only by-elections could come every week than all of us could probably drown in handouts and heavenly promises.

The Barisan Nasional has suddenly bounced into actions in Kuala Terengganu. Suddenly, it found that it has the required funds and resources to develop KT and to make the lives of the KT folks better than ever. Among others, the followings are the various actions taken or promised by the Barisan Nasional to the Kuala Terengganu folks lately:

  • the Star reported that the Terengganu state government will be giving 25000 laptops for free to all year 5 students by April next year. After that, a factory will be set up to manufacture 10000 units of laptops per month which are to be distributed to students in year 1, 2, 3 and 4. The first batch of 25000 laptops will cost the state government RM30 million.
  • a sum of RM2.7 million was distributed to 9000 needy Chinese folks on January 5th, a day before nomination day. This apparently is an annual event but in any other year, this handout would be made a week before or after the Chinese New Year.*
  • RM3.3 million was pledged by the Menteri Besar for the construction of a hall for the Chinese community in Bukit Kecil, with the ground breaking ceremony slated for Jan 13.*
  • the state government further approved RM2.8 million for the refurbishing of the sole Chinese school in Kuala Terengganu, SJK (C) Chung Hwa Wei Sin. The school's brass band will receive another RM200,000.*
  • RM110,000 was allocated to 40 Chinese religious organisations.*
  • the state MCA has obtained federal allocation worth RM205,000 for two temples while Education Minister Hishamuddin Hussien on Jan 5 announced a RM2,926,000 allocation for 10 Chinese schools in the state.*

* source: Malaysiakini report

  • Dr Azly Rahman in his blog has in the meanwhile cited a report in the New Straits Times that the state government had also promised to replace the zinc roofs houses of poor families and grant 4ha of land to anyone who wants to plant padi.
  • On 10th January, Malaysiakini reported that the Federal Government had awarded RM15.8 million worth of small infrastructural projects to 583 Terengganu based class-F contractors through a computerised ‘bidding’ system.

I am not going to judge the merit or demerit of all these actions. The government, after all, should know best. But allow me to firstly say something about the free laptop project. The express intention of this project is apparently to reduce the burden of heavy school bags which the students have to endure day in and day out. But excuse me. The first question which came to mind is whether the contents of all the text books have been digitalised and ready to be uploaded into the computer? If not, then the whole thing is a waste of money as students would still have to carry books. Instead of heavy school bags containing the books, now the students also have to carry the laptop!

Several other questions arise. How many of these students know how to operate a laptop? What if they lost the laptops? How is the teacher going to teach in the class? Will there be a big monitor together with a computer projector in every classroom in every government schools in order for these laptops to be used during lessons? Are the teachers trained to teach using laptops instead of books? How are homework going to be given and done? One laptop could only operate for about 3 hours (the longest) if operated on a battery and as such electrical power supply is needed. And the most obvious question here is how many power mains are there available in every classroom in every government schools? How about the soft wares? Can the students type? I am getting real worried here because I think all these questions have not been explored and attended to before this very well meaning project was announced. I would love to be proven wrong though. Please do tell all of us Mister Minister.

The purpose of this post however is not to criticise the various projects or handouts or to make conclusion as to the propriety of such acts. Ethically I personally believe it is wrong for any government of the day to announce handouts, developments projects and give free gifts, whether in cash or in kinds to the voters or the people of any constituency at which a by-election is taking place. The same applies in a general election.

Under a Westminster system of democracy, where the Common Law applies, the government, and every member of the Executive, is in a fiduciary position in relation to their powers and duties to the people whom they govern. This means they have fiduciary duties to all of us. What this simply means is that they hold the powers in trust for the people and they cannot therefore abuse such powers. They therefore can only exercise such powers for the benefit of the people and the nation. They cannot exercise such powers for their own benefit.

In exercising such powers too, they must avoid a situation of conflict of interest. What if they are in a position of conflict? Simple. If they are faced with a situation of conflict of interest - which means their personal interest conflicts with the interest of the people or the nation - they must not exercise the power. They must give the power to somebody else. Or if they can't do that, they have to wait until that conflict of interest does not exist anymore.

Now, we shall apply the above principle to the by-election in P.036. The present government - federal and state - is the Barisan Nasional. The by-election in P.036 is contested by a candidate from the BN, PAS and an independent. I think the BN government, whether the Federal government or the state one, is in an obvious conflict of interest when it comes to development projects, handouts and gifts during the period of the by-election. The BN government should not therefore embark on this sudden burst of economics activities in view of the by-election because it will give an impression, rightly or wrongly, to observers that such activities are done to influence the voters to vote in a particular manner.

What is the conflict? There will be an obvious inference that all these economics and social programmes are embarked upon by the government for the purpose of inducing the P.036 voters to vote for the BN candidate during the by-election. A question than arises. Are all these economics and social programmes undertaken by the government because the government thinks that they are indeed good for the people or because of some other extrinsic element, such as to induce the voters to vote for its candidate or a combination of both? That is, to my mind, the conflict.

As a self proclaimed good government who has by far thought only of the best interest of the "rakyat" and who has, according to Najib Razak, acted like a "welfare government" all these while, I am sure the BN government would not want to breach its fiduciary duties to the "rakyat". As a reminder, in Islam, a breach of trust, is one of the unpardonable sin, as far as I know.

So, in this respect, I really hope that the BN leaders are doing all the above acts with a clear conscience. Perhaps clearer than the crystal mosque, if I may add.

The above are my moral and ethical issues. The next is a legal issue.

Sorry. But at this juncture I have to bore all of you with some pertinent provisions of the law. 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). Because the Malaysians Act and the UK Act are similar, guidance could be had from the UK Courts on the application of the Malaysian Act.

What are not allowed under the Act? Among others, a cluster of improprieties, which are termed as "corrupt practices" are not allowed. For the purpose of this post, I will deal with the relevant corrupt practices one by one.

Firstly, "treating" is not allowed and is an offence. In short, the law prohibits any person from giving any treat to any voter with the intention to influence such voter to vote in any particular manner. The "treat" may take the form of food, drink, refreshment, provision, money or ticket. It is obvious that not every treat is prohibited. If PAS provides drinks to their worker, that is not treating. If an UMNO member sees a beggar and he or she gives food or money to the beggar, it is not treating. The giving of food, drinks or money must be for the purpose of influencing the voter to vote in a certain manner. That is treating and it is prohibited.

In a case known as re East Peterborough Election (1875) HEC 245 (CAN), voters were treated to drinks at a tavern by an agent of the candidate. That was held to be a treating. In Youghal (Borough) case (1869), the candidate announced himself to be a candidate on 29th July. The Parliament was only dissolved in August. He however began treating the voters earlier on. The Court held that that was a prohibited treating (although it took place even before the nomination). The Wallingford case (1869) 19 LT 766, coincisely explains treating. It says "where meat and drink are given away for the purpose of gaining popularity, and thereby to affect the election, that is evidence of corrupt practice."

Secondly, bribery is prohibited and is an offence. Basically, under the Act, an act of giving or promise to give money or any valuable consideration to any voter for the purpose of influencing the said voter to vote in any particular manner is bribery. This is an interesting subject.

In a case called Kingston-upon-Hull Central Division (1911) 6 O'M&H 372, a person distributed coal to persons who were entitled to relief. He also gave some treat to school children when an election took place. He argued that he did all those thing without any corrupt motive. The Judge, Justice Ridley, held that even though he gave it without corrupt motive at the time the acts were planned or designed, "if an election becomes imminent later, he will go on with that design at his risk and if he does so he will be liable to be found guilty of corrupt practices, that is to say that he has done a thing which must produce an effect on the election".

As far as charitable acts or gifts are concerned, the case of Strafford (Borough), Chawner v Miller (1869) 21 LT 210, bears some interesting illustration. Here goes.

A candidate was in the habit of giving 250 pound to his agent for distribution as Christmas gifts every Christmas. The money was distributed by his agent during an election of the borough. The candidate never checked how the gifts were distributed nor did he ever tell his agent how to distribute the same. Justice Blackburn said as follows:

"When I find charities are distributed in a borough by...candidates, and are distributed without check by the election agent of the borough, I am not charitable enough to draw any other conclusion than that they do it with the intention of giving the voters money, in the hope and expectation that it will influence the future election".

I am sure the BN and the Pakatan Rakyat will find that case interesting enough. Finally, allow me to draw attention to another interesting case, namely, the Megantic Case (1884)9 SCR (Can). The facts are really interesting.

Here, the candidate gave $100 to Mr X to be used for the purpose of an election. While visiting an area which was part of the constituency, the candidate and Mr X met a local leader. The local leader professed that he was not happy with the candidate and that although he was going to vote for the candidate and his party, he was not going to work that hard to support him. In the absence of the candidate, Mr X asked the local leader whether he wanted money for his church. The local leader said he wanted to build a town hall and he needed money for that purpose. $20 was put on the table. When saying goodbye to the candidate and Mr X, the local leader said, "Gentlemen, remember that this money has no influence as far as I am concerned with regard to the election". The candidate did not ask for the money back.

Interestingly, the Judge held that the act of giving the money was not an act of liberality or charity. It was a gift with a view to influence a voter favourably to his candidature. Additionally, although the money was given in the candidate's absence and initially without his knowledge, he finally knew about the payment and did nothing to stop it. Therefore he was guilty of corrupt practice.

The above are but some examples of the decisions by the Common Law Courts in respect of allegations of bribery and treating during an election. These pronunciation of laws are applicable here as our election laws are similar to that of the UK's.

The purpose of this post it to create awareness of the law in relation to the various acts and to discuss the application of such laws in the UK. As such, I am refraining myself from making any conclusion.

In arriving to any decision, the Court would of course have to consider all explanations offered by the BN. It must be noted that the BN government has said that:

  • the laptop project was to ease the burden of school children from carrying heavy school bags.
  • the award to the Class F contractors were already planned under the economics stimulus announced much earlier (last year) and the finances are now available for the same to be done.
  • the cash gifts to the Chinese people are part of an annual event and was also planned during the lifetime of the previous MP.
  • the BN government is committed to helping the poor and the programmes are aimed at helping the poor.

It is then up to our Courts to decide whether such explanation would be acceptable if a case is brought before the Courts.

8 comments:

joolee said...

just a couple of observations:

first, i was intrigued by your citing of common law - i believe that's what the former bn-influenced chief justice was trying to eliminate.

second, are heavy school bags the burden only of kuala terengganu school children?

i love your blog. keep up the good work.

Kris said...

Informative and excellent piece. Keep them coming.

mei1 said...

Good piece Art especially the examples given. But I'm doubted if the political parties here would ever have such clear conscience when it comes to elections? The past records show that it'll always be "semuanya ok"...

sowhatthe said...

Really interesting piece Art. I'm as a lawyer and really admire your writings and the points you raised.

Hopefully Malaysian should understand what is the rule of law... and hope the judges read this too.

If all the laptop, project, money..etc is not corruption... then UMNo is not a racist party...

chong said...

well, there is always another excuse.
the newspaper misquoted them.


so who gonna report it and bring the case to court?

Anonymous said...

Art,

There are two sets of law in Malaysia. One for the people and one for the BN.

As far as BN is concern only the law of the jungle is needed especially if they want to win elections.

We just wait for the days when they will start distributing condoms for the voters to try it on the prostitutes. By then UMNO will rebranded the prostitutes as Condom Testers. They will be made available during by elections. Only for this reason, I hope many more MP kick the bucket while in office.

asiseesit said...

politics in malaysia have reached a new heights. more so because so much are lost by the BN in last year election. 28 years on, kuala terengganu is still what it is today since the first oil royalty.

BN can just issue a statement that these benefits are actually the money from those royalty and it's going back to the people of terengganu.

why now, and not before after more than 28 years? why just give to kuala terengganu and not other states?

BN, i must admit, did work hard for the country with little merit to their credentials. probably getting peanuts when they were growing. now that it's no longer peanuts for them, we still have monkeys around running the country.

Anonymous said...

Art

Aiyah ... remember the missing billions of oil royalty? BN government was holding them for 'safe keeping' or 'in custody'.

Now is the time to release the funds and repay the loyal citizens of Terengganu.

It is a small matter of sheer coincidence and inconvenience that a by-election is being held at the same time. S*its happen you know. Some of that are good s*its. So take it all in and shut-up the people of Terengganu.

Bob

ps .. love your blogs, hugely informative.