Election Petitions – The Standard Of Proof

Art Harun sets out the law, and shows why we should wait for the Court process to take its course

The point which I have been trying to make over the last few days is this – if we want to challenge the GE results, we must present evidence/reasons which can satisfy the legal requirements set by the laws. If we could not do that, it means we do not have a VIABLE legal challenge to the results. That would in turn means the results are legally VALID AND BINDING.

In that case, no amount of shouting, screaming, rallies and demos can change that FACT!

If we are not happy with the laws, again, no amount of shouting, screaming, rallies, demos and phone calls to Obama, Kim Il Sung or Borat or jampi serapah could change anything. Motions will have to be made in the Parliament (and I don’t mean motion of the kind which we pass in the toilets) to amend the laws.

Now, that IS the point. So stop calling me names, labeling me a coward, apologist for the BN and what nots. It’s not going to help or change anything.

A. The Basic Premise

Now, I accept the proposition that the result of an election is subject to judicial scrutiny. Indeed, an Election Court has a constitutional responsibility to protect and safeguard the purity of elections.

– (Justice Azahar – not me – in Zaid Ibrahim’s case reported as Mohd Zaid Bin Ibrahim v P Kamalanathan A/L P Panchanathan & Ors [2010] 6 MLJ 363, HC [Subscription Only Link])

That is it. The Election Courts start with the assumption that the purity of the elections have to be safeguarded.

After this, the next thing is:

“The first thing that one should know and clearly understand is that the jurisdiction of the election judge to hear election petition is a creature of statute and the judge is especially bound strictly within the letters of the election laws (see Mahari bin Endut v Dato’ HjMat Razali bin Kassim & Ors [2009] 5 MLJ 153). In the same vein, just as the Election Court is bound by the election laws, so too the petitioner in any election petition must strictly adhere to and obey all the requirements of the election laws.”

– (Justice Azahar again).

So, it works BOTH ways. The Judge is bound by the laws. The challenger (ie, Petitioner) must also STRICTLY ADHERE to the laws.

It is clear therefore that the Petitioner must satisfy all the legal requirements before a result can be nullified by the Election Courts.

Why is that, you may ask? Simple.

The reason is there us an election result. The result is the voters’ voice. You want to challenge or unseat that result. You are in fact trying to unseat the voice of the voters. So you’d better have really good reason to do so.

That is the premise.

B. Corrupt Practice/Bribery

(LB: Read first the author’s previous piece Bribery And Treating In Elections explaining what exactly “corrupt practices” are in terms of election laws.)

The usual complaint in this respect is that the government, or the Prime Minister, or the candidate makes all sorts of promise, especially promising to give money if they win.

There is a decided case from Malaysia which is right on point. Before you all scream and say the Judge was bias bla bla bla….let me tell you that this case was heard and decided by one of the best Judges in the Commonwealth back then and he was, to me, the best ever Judge ever to have graced the Bench in Malaysia. His name is Tan Sri Eusoffe Abdoolcader. His integrity is beyond reproach. His knowledge of the law is beyond question. This guy memorized the laws for fun and he ate lawyers and even other Judges for breakfast.

In a case known as Re Pengkalan Kota By-Election; Teoh Teik Huat v Lim Kean Siew & Anor [1981] 1 MLJ 265 [Subscription Only Link], the then Minister of Finance while campaigning in another constituency was alleged to have addressed a crowd of over 1500 people consisting largely of electors or voters and people in the constituency and was alleged to have said “If Barisan Nasional win, I will personally give more money for the improvement of Pengkalan Kota”.

Justice Abdoolcader had this to say at page 269:

“On a careful and considered examination….of the alleged statement….I can only conclude,….that the words allegedly uttered….in the context of an election campaign often conducted with a fervour calculated to outdo even the Befrienders and invariably pregnant with partisan promises and in which some forensic flexing of political muscle is not an uncommon or unknown phenomenon, did not perforce pose or constitute a promise or pre-engagement by him in his personal capacity with any corrupt intention of any designated sum of money of valuable consideration to or for any one or more particular elector or voter for corrupt inducement to exert his or personal predilection at the polls in favour of the first respondent…To hold otherwise in the circumstances of this case would be to effectuate and sanction a spurious conversion of political proclamations and catchwords manifested as a promise of public action into an inflexible electoral offence with criminal connotations bereft of the essential pre-requisite therefor”.

(Sorry for the English. That’s how His Lordship write and speak. We all are lucky. Sometime he even swore at lawyers in latin!)

Briefly, what he was saying is that the promise to pay money is not a corrupt practice.

Period.

Meanwhile, Justice Azahar in Zaid’s case held that:

i) Allegation of corrupt practice is quasi-criminal in nature and “must be proved beyond reasonable doubt and not on preponderance of probabilities.

ii) “It has to be said at this point that in order to constitute the offence of bribery within the meaning of s 10(a), (c) and (e) of the Act, a close and direct nexus must be proved between the bribery act and the person to whom it was made or addressed to do or not to do a thing which he otherwise have not done or done. These two things are linked up. Construed in this way and by reference to the facts and circumstances of the present case, I think the first respondent is entitled to know with clearness and certainty at the very earliest stage the name and identity of the persons to whom the alleged act was made or addressed.

So, not only we must show the bribery act(s), we also have to show who gave the bribe and who received the bribe and also that the bribe had influenced the receivers of the bribe to vote for the giver of the bribe.

That is the requirement.

iii) Not enough with that, we also need to show that the act of bribing has SUBSTANTIALLY AFFECTED THE RESULT OF THE ELECTION. So, if the winner wins by 2000 majority votes but we could only show 30 Banglas being paid to vote for the winner and they DID VOTE for the winner because of the bribe, that would still not satisfy the legal requirement because the bribe had not substantially affected the result.

So please. To all of you who are showing videos of busloads of Banglas, supposed BN fellows paying voters….ask yourself…..all these things can satisfy the requirements or not.

If not, then there is NO VIABLE challenge. And that means the results are LEGALLY VALID. The results are therefore valid results of a democratic process which you do not happen to like.

That is my point.

Akan datang bila saya free kelak: procedural non-compliance/doubtful votes/unsigned forms etc.

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Posted on 16 May 2013. You can follow any responses to this entry through the RSS 2.0.

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7 Responses to Election Petitions – The Standard Of Proof

  1. TAN ZU HAO

    You must be kidding me.

    Election was unfair = not necessarily the result would have been different had there been no irregularities
    because it is extremely difficult to prove that the result would have been overturned if the election was fair, this is even so where you have ample evidence of irregularities.

    But what we are focusing on is the unfair election/irregularities, not the result itself. What you're saying is about the result itself.

    That's why we have to keep protesting until SPR steps down.

  2. proud2bmalaysian

    The Election Offense Act is built on the premise that the Election is held in a fair and free manner so that any challenge against that premise must demonstrate proof beyond reasonable doubt, even to a point of being a burden to produce, so that it castigates the frivolous petitions.

    But our Election is not free and fair yet the law cannot change. Hence, the impossibility to challenge even when not frivolous.

  3. XOM

    Dear Art Harun,

    You are clearly undeserving of your law degree. In brief:

    1) No one contends the legal points raised by the judges. Those points are fair, valid and logical.

    2) And you are, as you always are, completely confused in thinking that the opposition's issue is with the democratic process. It is not.

    3) People are not contending that the results are invalid. They results indeed are legally valid.

    Rather, the issues in dispute are: the nonchalance of the Election Commission, in their allowing the various problems to occur (indelible ink, counting process shadiness), the irregularities involved, the existence of vote buying skewed in BN's favour, the use of Bangladeshis and foreigners to vote, etc — which have all led to the supposedly 'legally valid' results.

    Seeing as to your inclinations, this may be difficult for you to understand, so let me describe an analogy to you, Art Harun:

    a) Assume that there were a population of 10 people in Country X, and you need a 6-4 majority to win in Country X's elections.

    b) Knowing that you cannot win by the people of Country X, you subtly use 5 people from Country Y to vote from you.

    c) You score a 7-3 win by this method.

    d) By sheer number, you have of course won Country X's elections, since the law accords the legal win to the person who scores numerical majority.

    e) That, however, does not mean that you have won the elections *fairly* — which is the more important thing to consider. Just because something is legal, doesn't necessarily mean that it is also fair and/or equitable. (If you fail to understand this concept, please stop practising since you would be doing an injustice to your clients, to the courts, and to your opponents.) And where something has not been done fairly, there is always a basis for challenge.

    f) Through abuse of the election process via Bangladeshis and gerrymandering, BN and its affiliates (i.e. the Election Commission) have won parliamentary majority. Did this give them legal validity to rule? Yes. Did this give them a fair and honourable basis to rule? No. Should the unfairness of the entire process be subjected to legal scrutiny? Yes. Would it be wrong to subject it to legal scrutiny? No.

    • proud2bmalaysian

      And to add to this, if there is reasonable doubt that fraud actually happened though not sufficient to overturn or petition to the Courts, it is still a fraud and cannot be tolerated. Just because we cannot get the busloads of foreigners to come forward as witnesses does not mean it is acceptable practice and to be swept under the carpet or ignored.

      Again, a fraud is a fraud no matter how you look at it.

    • Jason

      Reading Art's article, the take-away point is that we should adhere to the Rule of Law (we here mostly lawyers mah).

      Our country, through its laws, has a set of rigorous requirements to overturn an election result – rightly so. Granted – the issue of corruption, gerrymandering, injustice, etc. plagues the results – the majority of us right thinking people already know that. But assumptions, presumptions, postulations or raw assertions not backed by evidence simply amounts to absolutely nothing in a country proclaiming to be Ruled by Law. The onus is on us (those assuming, presuming, postulating, raw-asserting) to produce the requisite evidence.

      Yes our enemy is cunning. Yes they have the Parliament (hence, statutes) on their side. Their book of tricks are stacked with over 50 years of experience. We need to overcome these by cleverer evidence gathering. Nobody said it was going to be easy. The solutions are there but difficult to achieve. So what? Mere screaming and shouting and marching sure ain't doing much.

  4. Very true …every election held by UMNO -BN is to Legitimise the SHAM, SCAM, and illusion-Delusion Democracy we have…..

    Rakyat have every right to Bangkit Bantah…turun Jalanraya or even SEPARATE OUT of Malaysia via autonomy with Selangor, Penang and Kelantan…… EVERY RIGHT with 2/3 majority in Parliamen…..seditious to some but as a point of law is ALL Possible!! We want to LEAVE MALAYSIA ala Zahid Hamidi Style. Thank you for that suggestion!!

  5. S T Tong

    Rule of law or rule by law?