by Joe Fernandez
COMMENT The Election Commission says that
those dissatisfied with the 13th General Election results can wait until after
they are gazetted and take up the matter in Election Court and not resort to
rallies and demonstrations.
PR has a right to explain to the people and
get their support. Meanwhile some longtime suspected Umno moles in PKR, with no
support whatsoever among the people, are trying to sabotage the rallies by
swearing to wash dirty linen in public. Some moneybags linked to Umno are
reportedly behind them. Some of these people need a bullet in their
head.
We know what will happen in the Election Court or at least in the
process at the Federal Court level.
The following case provides the best
illustration of how election petitions could go.
In the Sat 8 Mar, 2008
General Election Joseph Kurup was declared returned unopposed in Pensiangan,
Sabah, after his only serious challenger, Danny Anthony Andipai, had the
submission of his nomination papers rejected on the grounds that he was five
minutes late. Two other unknown candidates managed to file their nomination
papers which were conveniently rejected.
Apparently, Andipai's nomination
was held up by Kurup and the two other would-be challengers who were allegedly
processed so slowly by the Returning Officer (RO) on duty that he (Andipai) fell
victim to the “late five minutes” ruling.
Irate bystanders punched Kurup
who managed to make a quick getaway with blue-black eyes.
The Election
Court held for Andipai on 8 Sept, 2008.
Judge David Wong ruled: “The
election of the 1st Respondent (Kurup) must be declared void which I now do
declare and I also declare that the 1st Respondent is not duly returned as the
winning candidate for the Parliamentary seat of Pensiangan – P 182.”
Judge Wong cited the Federal Court in Dato’ Ismail Kamus v Pegawai
Pengurus Pilihanraya (Zainal Abidin Azim) & Ors [2005] 2 CLJ 237 at p
245:-
(a) there is non-compliance with the provisions of the written law
relating to the conduct of elections; and
(b) that the non-compliance
has affected the result of the election. (section 32 (b) of the Election
Offences Act 1954).
One argument by Kurup which the Judge rejected as
absurd was that “Andipai cannot prove that he would have won had he been allowed
to contest”.
The "see no evil, hear no evil, speak no evil" Federal
Court held on 13 Mar, 2009 in CIVIL APPEAL NO. 01(F)-19-2008 that Kurup had been
duly elected.
The FC ruled, in not wanting to know too much, that “while
it is true that there were twelve citizens of the land who wanted to be
candidates in the 12th general election and only one counter was opened at the
nomination centre, nevertheless, the responsibility for submitting the
nomination papers to the RO within the time frame lies with the
candidates.
“No statutory duty is imposed on the RO to ensure that all
nomination papers of all candidates present at the nomination centre must be
accepted but only to ensure that no nomination papers are to be accepted after
the time frame : regulation 6(2A)(a) of the Regulations. So, in this case, the
fault lies with the respondent for failing to deliver his nomination papers
within the stipulated time to the RO.”
Heads I win, tails you
lose!
Why no nomination papers to be accepted even a few minutes after
the stipulated time? What about exercising prerogative and discretionary powers
in keeping within the ambit of Part VIII of the Federal Constitution and section
4 and section 5 of the Election Act?
The Federal Court ruling on appeal
was a travesty of justice.
That’s the kind of "ostrich with its head
buried in the sand" Federal Court that we have in Malaysia, bogged down in
absurd technicalities, and always on the lookout for anything that can knock out
a petition and spare them too much work. Where's the Principle in Law which
justifies the "late five minutes" ruling?
Rule by Law is the kind of
thinking promoted by Umno Baru's 6Cs -- corruption, chaos, cheating, cronyism,
cowardice and concubine to rival neighbouring Singapore's 5Cs -- cash, credit
card, car, condominium and country club.
So, don’t be too hopeful in
going to the Election Court. Even if it considers the merits of an application
and gives a hearing to the aggrieved party, the Federal Court will, on appeal,
come to the "rescue" with some absurdities in technicalities.
Something needs to be done about the EC which continues to
bermaharajalela on the election process in Malaysia with no consideration
whatsoever for the need to have a free and fair election that manifests the will
of the people. The Royal Commission of Inquiry (RCI) in Sabah is a case in
point.
The EC is guilty as hell along with the National Registration
Department (NRD), the Prime Minister’s Department, a misnomer for a hyper
ministry, and various other "guilty" parties.
Even before we can
consider the subject of election petitions, the issue of the vote count figure
should be explored.
Pakatan Rakyat (PR) component parties reportedly
obtained collectively 102 parliamentary seats at one point in time -- as per
information relayed by text messages from the various counting centres to PR
Headquarters -- before it was announced by the EC at 1 am on Wed 8 May that the
Barisan Nasional (BN) had reached the threshold 112 parliamentary seats to
enable it to form a simple majority government in Putrajaya.
The TV
stations promptly shut down instead of relaying the rest of the election
results.
Later we learn that BN had obtained 133 seats in Parliament in
the final reckoning.
BN could not have obtained 133 seats.
BN
could have only collected 120 seats at the most if we consider, again, that PR
Headquarters had reportedly noted an unofficial vote count of 102 parliamentary
seats for itself. This was the moment when it was declared that PR just needed
another 10 seats to reach the threshold 112 seats to win the 13th GE and form
the Federal Government. Ini Kali Lah!
Opposition Leader Anwar Ibrahim is
disputing the vote count in nearly 40 seats.
However, at a conservative
estimate, Umno stole 13 seats from the Parti Keadilan Rakyat since both Dap and
Pas appear to be somewhat muted in their response i.e. 102 seats – 89 won by PR
= 13 seats stolen. These 13 seats must be returned to PKR.
It appears
that Umno may have been gunning for PKR, if not the other PR components, in
cahoots with the EC. Umno wanted to remain overwhelmingly the biggest party in
Parliament by hook or crook.
The Perak and Terengganu vote count for the
state seats may also be at the heart of the dispute.
Why must we accept
EC figures as the Gospel Truth when they differ so much from the actual count
relayed by text messages to party headquarters? How could these figures not
tally?
Who's checking on the figures from the EC’s vote count process if
not the party agents themselves? Can the EC self-appoint itself as Judge, Jury
and Hangman on the vote count process and figure?
The Federal Court,
sitting as the Constitutional Court, should give a point of law ruling on this.
Part VIII of the Federal Constitution and section 4 and section 5 of the
Election Act refer.
It should be stressed that Opposition Leader Anwar
Ibrahim was not shown on TV phoning BN chairman Najib Abdul Razak, conceding
defeat, congratulating him and pledging support for the Government and in
working together for the good of the people of Malaysia. The legitimacy of the
Najib Government is in question, a point which should not only be noted by the
Federal Court but the foreign governments as well rushing to congratulate Najib
for no rhyme or reason.
On a separate but related matter, what is the
stand of the Federal Court on Najib attempting to bribe his way back into power
with the people's own money. The EC sees nothing wrong with such blatant acts of
bribery but can it rule on such constitutional issues? Again, Part VIII of the
Federal Constitution and section 4 and section 5 of the Election Act refer.
The Federal Court should also give a point of law ruling on the
discrepancy between the unofficial vote count figure as noted by PR and the vote
count as announced by the EC.
The strong circumstantial evidence should
be considered.
Why did the Election Commission wait until 1 am to
announce that BN had obtained 112 seats to form a Government with a simple
majority? The EC chairman was smiling like a Cheshire cat on TV as he looked at
his watch and proceeded to announce the partial results.
Why didn't the
EC announce the various seats won by BN and PR as they raced towards the 112
mark?
Did PR really obtain 102 parliamentary seats at one point in time
-- as per info relayed by sms from the counting centres -- before it was
announced that BN had reached 112 seats?
Why did all TV stations stop
their live telecasts on the incoming results after it was announced that BN
would form the Government?
The proverbial smoking gun is the difference
between the vote count which was sent in real time by the party agents from the
polling stations to the PR headquarters and the figures announced by the EC. Why
the difference?
That's where the focus of investigations by the Court
should be along with the issue of postal votes being conveniently brought in at
odd times, long after vote counting has begun, to benefit BN.
The Court
should order all votes in the disputed seats to be recounted.
The Perak
and Terengganu vote count for the state seats may also be at the heart of the
dispute.
The Court should also scrutinize the list of those who voted in
the disputed seats and conduct random checks on whether they really voted and if
so whether they were qualified to do so. One criterion for qualification is that
they must be citizens of Malaysia in compliance with the Federal Constitution
only.
Separate from the Federal Court route, there's a case for a Royal
Commission of Inquiry (RCI) on the EC and the EC's conduct of the 13th General
Election.
It’s no point PR waiting until the election results are
gazetted before launching futile and long drawn out election petitions. Again,
the Andipai petition is a case in point.
If in Election Court, PR should
not challenge the gazetting of the tainted electoral rolls used for the 13th
General Election. That would place the entire 13th General Election results in
jeopardy especially when PR won three states – Selangor, Penang, and Kelantan –
with two-thirds majority. It may not be possible to challenge the gazetting by
confining it to the disputed seats.
The Opposition should wait until the
electoral rolls are put up for public display again before taking action against
the EC.
The Opposition should also challenge any gazetting of these new
electoral rolls.
For starters, the Federal Cabinet has no business
approving the electoral rolls before it can be gazetted. Such a procedure calls
into question the very legitimacy of the rolls.
The EC must be kasi kena
one way or another. Taroh the treacherous buggers! I am sure they are guilty as
hell about something. Otherwise, how could BN win election after election for 55
years? Lawan, Tetap Lawan!
Footnote: The question of the Attorney General
rushing to bring Sedition charges against 28 PR leaders for their statements at
a Rally in Kelana Jaya on Wed 8 May, 2013 should not arise since the legitimacy
of the Najib Government is in question. Why not charge as well the 120, 000
people who attended the Rally?
One cannot be accused of Sedition in
trying to install a legitimate Government. There should be a point of law ruling
on this. The will of the people cannot be allowed to be subverted.
The
Court should not push the people towards a Revolution where heads would not only
have to merely roll but even be incarcerated for Treason.
Further
Reading:
http://www.malaysia-today.net/mtcolumns/from-around-the-blogs/56594-how-did-unofficial-results-differ-so-much-from-the-final-tally-a-counting-agents-story
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