The Curious Case of Our Home Minister

Forever intern Cassandra Chung writes about the Bagon Datok case, one of PusatRakyat’s strategic litigation cases.

The Facts
On 16 April 2013, Barisan Nasional (BN) announced the candidacy of Yang Berhormat Dato’ Seri Ahmad Zahid Hamidi for the constituency, Bagan Datok in Perak. Nomination day was set to be on 20 April 2013. On 19 April 2013, Yang Berhormat Tan Sri Muhyiddin Yassin in his capacity as the Vice President of UMNO stated that the list of candidates that had been announced was final, with no changes; on the same day, Zahid Hamidi, in an election speech, obtained the services of about a 1,000 voters in his constituency as the “BN machinery”, promising them a certain amount of money and a bag of rice each (see Majlis Ramah Mesra Bersama Jentera BN). The witness in this court case confirmed that as voter in the constituency, he was indeed given the said amount of money and the bag of rice. Subsequently, another 23,000 voters in Zahid’s constituency joined the “BN machinery” bringing the total number to 24,000 (see Zahid: 23 Ribu jentera BN di Bagan Datok); the kind of services needed procured for was not specified by Zahid Hamidi.

The petitioner alleged that Zahid Hamidi violated sections 19 (1) and 21 of the Elections Offences Act 1954; section 21 prohibits illegal employment of workers for the purposes of promoting and procuring the election of the candidate –the exceptions are the employment of one election agent, one polling agent per station and a reasonable number of clerks and messengers. The procurement of the 24,000 machinery was alleged to have fallen outside the exceptions.

Section 19 (1) states that for the Parliamentary elections, a candidate is not to spend beyond RM 200,000. It is estimated that Zahid Hamidi spent at least RM 2.4 million since he is alleged to have paid all 24,000 workers RM 100.

When the case reached the Federal Court, the apex Court held that the 1954 Act only applies to candidates and that a person only becomes a candidate after nomination day and as such the petition holds no water as the acts in question occurred before Zahid Hamidi became a candidate. The applicant was initially required to pay RM 50,000 worth of costs but after his counsel requested for a reduction, it was reduced to RM 25,000.

Effects
I will now state why I humbly disagree with this decision.

1. It creates confusion on the interpretation of the 1954 Act

The court’s judgment contradicts the intention of the 1954 Act itself. Section 21 (2) makes no reference to the word “candidate” but rather “person engaged or employed in contravention of this section” implying that what Parliament was concerned about was not so much about who committed the Act but rather if the offence had been committed, the alleged offender should be punished whether or not he is a candidate. To say that the entire 1954 Act applies only to candidates severely limits the scope of section 21.

The decision also raises some uncertainties – will it apply to a candidate if he/she hires somebody to carry out what is prohibited under the said section? If yes, then what must be proved in order for the candidate to be charged under this section. Must the candidate have intentionally and explicitly hired the said person for the prohibited conduct or is it enough that it was done implicitly?

Section 19 sets out the maximum amount of expenses a candidate is allowed to incur. Spending will be taken into account after the date of publication of the notice of election in the Gazette. Notices of elections are published when returning officers from the Election Commission post up the notices in public places. These notices typically contain two important dates: nomination day and polling day.

If a person only becomes a candidate after nomination day and the 1954 Act applies only to candidates, where does that leave section 19? If Parliament really meant for the 1954 Act to apply only to post-nomination, why is a different time period explicitly set out in section 19?

Another problem arises when nomination day takes place before (emphasis added) the publication of such notices. This is highly possible as there is no legal obligation for the date of nomination day to be posted in the Gazette neither is there a fixed time period within the law on when such notices are to be published. Usually, publication of such notices is done after issuing of writs to returning officers under section 12 of the Elections Act 1958.

If nomination day does take place before the publication of the notices, does that mean that expenses between post nomination day and publication of notices will not be taken into account? If yes, then effectively candidates will be allowed to spend as much as they like within that time period. Does this not defeat the entire purpose of section 19, which seeks to limit the expenses incurred by candidates?

If one wishes to avoid such difficult issues in bringing an election petition, another possible way of bringing a charge is through section 11(b) of the Anti-Corruption Act 1997 which provides that it is an offence for a person to give or offer an inducement for the purpose of showing favour or disfavour in relation to his principal’s affairs of business. This, however, would depend on how the court defines “business” (i.e. would elections be considered a “business”?).

Also, using the Anti-Corruption Act 1997 may not bring about the intended outcome of an election petition, i.e., disqualification from a seat; the 1954 Act provides under section 32(a) that an election of a candidate may be declared void if general bribery or general treating was so extensively prevalent that it affected the results of the election. Unless the jail term is over a year or if the fine exceeds RM 2,000 (article 48(1) (e) of the Federal Constitution). Otherwise, there is no legal obligation for any elections offender to vacate his or her seat save for political and public pressure.

Political pressure has at times proven to be ineffective as observed from the current Selangor crisis. Despite being sacked from his own party (PKR) and DAP outwardly expressing they no longer support him as Menteri Besar, Tan Sri Khalid Ibrahim, for a brief period, refused to resign.

Another disadvantage of using the 1997 Act is that it requires any person from whom gratification has been solicited from or attempted to be solicited from must report it; if not, he/she will be committing an offence. Furthermore, charges under the 1997 Act is brought by the Attorney General

2. The high cost acts as a barrier to justice

The decision creates barriers that could discourage people from filing election petitions. Firstly, by dismissing the appeal on technical grounds rather than on its merits, what the court is effectively saying is that technical rules are more important than delivering a fair judgment. Secondly, the financial cost of election petitions could act as a deterrent – for example, the Pulai and Tebrau parliamentary constituencies cost a whopping RM 60,000 each – divided between the respondent, Election Commission and the Returning Officers of the respective constituencies – proving that Bagan Datok is only the tip of the iceberg in terms of costs. Section 34 of the 1954 Act sets out that not only are candidates allowed to present the petition (subsection (c)) but those conferred with the right to vote are allowed to as well (subsection (b)). A middle class Malaysian will probably be unable to afford to pay such high costs. Furthermore, because only 10 to 20 percent of election petitions have proven to be a success,[1] this discourages the general public from filing petitions. In a supposedly democratic country, should the courts be placing excessive barriers when it comes to ensuring that the people’s voices are heard?

With this decision comes many possible adverse consequences in regards to legal interpretation and promoting democracy. It would be interesting to observe how courts in the future will overcome such problems and how far those contesting in elections will go, now that the court has said they can do whatever they like as long as it is before nomination day.