Shocking dismissals of election petitions

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If cases are struck out on technicalities, then it just creates disaffection amongst those trying to access justice, asserts Charles Hector.

The judiciary must be reformed - Photo credit: Qing Moments, Holidays in Penang, Picasa
The judiciary must be reformed – Photo credit: Qing Moments, Holidays in Penang, Picasa

The manner in which the Malaysian judiciary is dealing with election petitions is shocking and disappointing. Election petitions, or any applications in court, should never be dismissed on technicalities.

If there are procedural non-compliance or other irregularities, courts must make the necessary orders/directions so that these may be remedied as soon as possible – and the courts can then hear the election petitions on the merits.

Summary dismissals of election petitions

We are greatly concerned with the spate of summary dismissals of the election petitions filed by Pakatan Rakyat candidates with regard to electoral fraud in the 13th general election.

To summarily dismiss these petitions purely on the so-called technical grounds and ignoring the fact that the issues raised in the petitions are matters of public interest which have a direct bearing on the conduct of free and fair elections.

Some of the technicalities raised can be considered frivolous. For example: the petitions for Machang and Selising were struck off on the basis purportedly that the petition was not served personally by the petitioner himself on the respondents. This is quite ridiculous when everyone understands that parties in court act through lawyers and do not go around trying to serve court documents themselves!

Judges are also saying that the facts stated in the petitions are not sufficient. However I am advised that provisions also exist in the election law for any party to apply for particulars and for the court to direct provision of such details. Surely this would be a better way to handle disputes when such important issues of election abuses are raised regardless by whom whether BN or PR.”
– extract from press statement issued by Anwar Ibrahim on 29 July 2013

High costs

Are the Malaysian courts trying to deter Malaysians, especially poorer Malaysians, from coming to court to seek justice, in this case through the filing of election petitions.

Remember, the ordinary citizen, who is a voter, also has the right to file an election petition – not just the losing candidates. See section 34 of the Election Offences Act 1954 – Who may present petition.

An election petition may be presented to the High Court by any one or more of the following persons:
(a) some person who voted or had a right to vote at the election to which the petition relates;
(b) some person claiming to have had a right to be returned or elected at such election; or
(c) some person alleging himself to have been a candidate at such election.

So when the petitioner is ordered to pay a very high cost, here not even after the full trial on the merits, but based on technical or procedural non-compliance, would that not deter people from coming to court for justice and thus resort to extrajudicial means?

Remember that, in 2009, a government study revealed that more than 30 per cent of Malaysian workers earned less than the poverty line income, and remember also that the minimum wage in Malaysia is only RM900 (RM800 for Sabah and Sarawak). Hence, these high cost orders are in effect shutting access to Malaysian courts for millions of Malaysians who are low- and middle-income earners.

I feel that when it comes to election petitions and public interest cases, there should be no orders to pay cost, or even if cost is to be paid, it should not exceed a minimal sum of RM500.

Remember, any petitioner would have already expended money in engaging a lawyer and in filing the case. We want people, everyone, including the poor, to have the real right to be able to access justice through the courts. So please stop ordering payment of excessive cost. [Likewise, bail amounts should also be much lower taking into consideration the financial income of the accused person – it really should never exceed one month’s income of the accused person]

The Election Court here today dismissed petitions by Pakatan Rakyat to challenge the results of a parliamentary seat and two state seats which were won by Barisan Nasional (BN) in the 13th General Election. They are Air Lanas and Kok Lanas state seats and Ketereh parliamentary seat. Judge Datuk John Louis O’hara also  ordered the petitioners to pay a total of RM200,000 in cost to all the respondents including to the Air Lanas assemblyman Datuk Seri Mustapa Mohamed. At the same court, O’hara also rejected BN’s petitions against two Pas state seats – Mengkebang and Manik Urai and ordered the petitioners to pay RM60,000 in costs.
-New Straits Times, 23 July 2013, ‘Six election petitions dismissed’

Meanwhile, in the capital, the High Court struck out an election petition for Setiawangsa filed by PKR candidate Ibrahim Yaacob on grounds that the petition was defective. Justice Zabariah Mohd Yusof, in her decision, said the petitioner failed to fulfil the mandatory requirements of the election law in filing the petition. She ordered costs of RM50,000 to be paid to the returning officer (RO) of the Setiawangsa constituency and the Election Commission (EC). Zabariah also ordered costs of RM20,000 to be paid to the first respondent, Ahmad Fauzi, who was also the Barisan Nasional candidate, reports Bernama.
–  theSun Daily, 24 July 2013, ‘Election petitions by PR, BN dismissed’

In  Penang, the High Court dismissed two petitions filed by PKR’s Mohd Baktiar Wan Chik and Datuk Abdul Halim Hussain for both the Balik Pulau parliamentary and Teluk Bahang state seats respectively. Justice Hadariah Syed Ismail dismissed the petitions as both failed to comply with provisions under the Election Petition Rules 1954. Hadariah ordered Mohd Baktiar to pay costs of RM40,000 each to three respondents. The respondents are Balik Pulau MP Datuk Seri Dr Hilmi Yahaya, the constituency RO and EC. She  also ordered Abdul Halim to pay RM10,000 each in costs to BN Teluk Bahang assemblyman Datuk Shah Headan Ayoob Hussain Shah, the constituency RO and EC.
–  theSun Daily, 24 July 2013, ‘Election petitions by PR, BN dismissed

… The second trend is awarding high costs on the petitioners when their petitions are struck off. Petitioners have been ordered to pay as much as RM120,000 in the case of Balik Pulau.

I am informed by lawyers that such costs are not in line at all with the trend of costs awarded for similar civil litigation. For example, similar preliminary objections in the High Court will probably be awarded RM5,000 to RM10,000. Full appeals in the Court of Appeal are awarded RM15,000 to RM 20,000.

Such high costs are oppressive bearing in mind the public interest nature of the litigation and invites the inference that there is a decided policy to inflict punitive costs to discourage petitions. Judge Hadhariah Syed Ismail handling Balik Pulau was heard to say that the RM30,000 costs that were awarded for the DUN Telok Bahang petition against the KEADILAN petitioner were not high enough and proceeded to award RM120,000…”
– extract from press statement issued by Anwar Ibrahim on 29 July 2013

Are the courts forgetting that their main duty is “to prevent injustice”, and that “the court or a judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of the rules…”. Remember  section  42  Procedure and practice on election petitions of the Election Offences Act.

(2) When any matter is not expressly provided for in the Election Petition Rules 1954, the High Court Rules 1980 [P.U.(A) 50/1980] shall apply.

Well, I believe that important matters like the inherent powers of the court, and how to deal with technical and procedural non-compliance may not be “expressly provided for in the Election Petition Rules”, and hence the courts need to consider the Rules of the High Court 1980 – where clearly the principle is not to deny the applicant their day in court because of technical/procedural mistakes. Let the case be tried on the merits. The only time the court dismisses a case (in this an election petition) is when there is a ‘substantial miscarriage of justice’ – an extremely high standard which almost never will happen.

Order 92 Inherent powers of the Court. (O. 92 r. 4 Rules of the High Court 1980)

For the removal of doubts, it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.

Order 1A Court or judge shall have regard to justice. (Rules of the High Court 1980)

In administering any of the rules herein the court or a judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of the rules herein.

Order 2 Effect of Non-Compliance.(Rules of the High Court 1980)

Rule 3. Preliminary objection for non-compliance of rules not allowed (O 2 r 3).

A court or judge shall not allow any preliminary objection by any party to any cause or matter or proceedings only on the ground of noncompliance of any of these Rules unless the court or judge is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice.

Remember that these principles must be the guiding principles of all courts and judges, irrespective of whether there are rules or not.

People go to court so that their cases are heard on their merits. If cases are struck out on technicalities, then it just creates disaffection amongst those trying to access justice through the Malaysian courts.

Worse, these cases of procedural non-compliance are not the fault of the applicant/litigant but of lawyers and/or lack of clarity in the rules/procedures/format. In fact, courts should assist the people by reviewing applications filed, etc to see if there are any mistakes or non-compliance and by advising on what has to be done so that when the case is called up before the judge for hearing, it can promptly be heard on the merits and be decided.

Judicial commissioners

Another concern is that whether it is judges or judicial commissioners hearing these election petitions. 

It should not be judicial commissioners, who really are ‘contract judges’ or judges on probation, uncertain whether they will be even appointed as judges, who have the necessary protection to ensure independence.

The Prime Minister, a BN man and recently elected MP, plays a significant role still in determining whether a judicial commissioner is at a later date appointed as a judge or not. Hence ‘independence’ when it comes to election petitions is questionable. If they decide against the PM’s party, would they be elevated or appointed as judges?

Whether they decide against the PM, his party, his BN coalition members, or their cronies may not be a factor even considered by the PM when it comes to appointing Judges – but still, reasonably, would it not operate in the mind of judicial commissioners when it comes to handling and deciding an election petition?

I have always felt we should get rid of judicial commissioners – and people should straight away be appointed as judges as was the practice before the Judicial Crisis of 1988.

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