“Corrupt practices” as an election offence. What exactly are they? Art explains.
I propose to set out the decided cases in the UK as to what amounts to corrupt practices during an election.
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 the 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, concisely 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”.
For the Malaysian approach, the judgment of the Federal Court in Wong Hua Seh v Ding Kuong Hiing (2009) will be helpful.
NOTE: The above is an expanded version of points previously set out in the author’s P.036 By-Election – Has the BN committed “corrupt practices”?