Challenging the Result of an Election

Leong Wai Hong and Karen Tan explain the pitfalls when drafting an election petition.
 
In Malaysia, the result of an election can be challenged by way of an election petition. A lawyer must be well-versed with the procedural requirements when drafting an election petition. This is because non-compliance with the procedural requirements will result in an election petition being struck out without the need for a trial by the Election Judge on an application by the winning candidate or the Election Commission.
 
The rationale for strict compliance is explained by the Privy Council sitting on an appeal from the decision of the Federal Court in Devan Nair v Yong Kuan Teik [1967] 1 MLJ 261. One of the issues in this case concerned whether non-compliance with a time frame specified in Rule 15 of the Second Schedule to the Election Offences Ordinance 1954 (now the Elections Offences Act 1954 (“EOA”)) rendered the proceedings a nullity. In delivering the judgment of the Court, Lord Upjohn observed:  
 
“So the whole question is whether the provisions of rule 15 are "mandatory" in the sense in which that word is used in the law, i.e., that a failure to comply strictly with the times laid down renders the proceedings a nullity; or "directory" i.e., that literal compliance with the time schedule may be waived or excused or the time may be enlarged by a judge … This question is a difficult one as is shown by the conflict of opinion in the courts below.
 
His Lordship went on to say, “The circumstances which weigh heavily with their Lordships in favour of a mandatory construction include … (t)he need in an election petition for a speedy determination of the controversy, a matter already emphasised by their Lordships. The interest of the public in election petitions was rightly stressed in the Federal Court, but it is very much in the interest of the public that the matter should be speedily determined …”
 
GROUNDS TO INVALIDATE AN ELECTION RESULT
 
Section 32 of the EOA specifies five grounds on which an election may be declared void by an election petition, that is, where it is proved to the satisfaction of the Election Judge that:
 
(a)     general bribery, general treating or general intimidation have so extensively prevailed that they may be reasonably supposed to have affected the result of the election;
 
(b)     non-compliance with the provisions of any written law relating to the conduct of any election if it appears that the election was not conducted in accordance with the principles laid down in such written law and that such non-compliance affected the result of the election;
 
(c)     a corrupt practice or illegal practice was committed in connection with the election by the candidate or with his knowledge or consent, or by any agent of the candidate;
 
(d)     the candidate personally engaged a person as his election agent, or as a canvasser or agent, knowing that such person had within seven years previous to such engagement been convicted or found guilty of a corrupt practice by a Sessions Court, or by the report of an Election Judge; or
 
(e)     the candidate was at the time of his election a person disqualified for election.
 
CASE STUDIES
 
We illustrate the danger of an improperly drafted election petition using five election petitions that arose from the 14th Malaysian General Election (“GE 14”) for the Perak state constituencies of Hutan Melintang, Tapah, Changkat Jong, Lubok Merbau and Bagan Serai.
 
Hutan Melintang State Constituency
 
In G. Manivannan a/l Gowindasamy v Khairuddin bin Tarmizi & 2 Ors, the Petitioner (the Parti Keadilan Rakyat candidate) filed an election petition alleging that the 1st Respondent (the Barisan Nasional candidate) was wrongly reported as having been elected by the 2nd Respondent (the Returning Officer) and/or the 3rd Respondent (the Election Commission), inter alia, on the ground that the 1st Respondent had committed the offence under section 11(1)(b) of the EOA which involves the offence of treating, undue influence or bribery, and therefore the election should be declared void under section 32(a) of the EOA.
 
The Election Court struck out the petition, inter alia, on the ground that the Petitioner had failed to identify the exact offence and also failed to set out sufficient facts and particulars in the petition. The Court held that the election petition which merely cited the section without the material facts relating to the specific corrupt practice failed to disclose a cause of action and was therefore fatal.
 
Tapah State Constituency
 
In Mohamed Azni v Dato’ Seri M. Saravanan & 2 others, the Petitioner (the Parti Keadilan Rakyat candidate) filed an election petition alleging that the 1st Respondent (the Barisan Nasional candidate) was wrongly reported as having been elected by the 2nd Respondent (the Returning Officer) and/or the 3rd Respondent (the Election Commission), inter alia, on the ground that the existence of same names of voters in the electoral rolls of ordinary voters and the electoral rolls of postal voters had affected the result of the election in the constituency.  
 
The Election Court struck out the petition, inter alia, on the ground that the Petitioner only pleaded facts relating to the complaint but had failed to specify the provisions of written law relating to the conduct of the election which had not been complied with by the 3rd Respondent. The Court also held that the Petitioner had failed to prove that the alleged non-compliance of the election laws had affected the result of the election.
 
Changkat Jong State Constituency
 
In Faizul Ismail v Mohd Azhar bin Jamaluddin & 2 others, the Petitioner (the Parti Keadilan Rakyat candidate) filed an election petition alleging that the 1st Respondent (the Barisan Nasional candidate) was wrongly reported as having been elected by the 2nd Respondent (the Returning Officer) and/or 3rd Respondent (the Election Commission) for the Changkat Jong state seat, inter alia, on the ground that the 2nd Respondent had breached Regulation 25(12)(b) of the Election (Conduct of Elections) Regulations 1981 (“ECER”) by failing to prepare sufficient copies of Form 14 (Statement of the Poll After Counting the Ballot).
 
In dismissing the election petition, the Election Court held that the petition failed to comply with the EOA and the Election Petition Rules 1954 (“EPR”) as the irregularities were not clearly stated; for example, the Petitioner had failed to specify the number of copies of Form 14 that had been insufficiently prepared by the 2nd Respondent and the extent to which it had affected the result of the election.
 
Lubok Merbau State Constituency
 
In Zulkarnine Hashim v Dr Jurij Bin Jalaludin, the Petitioner (the Parti Keadilan Rakyat candidate) filed an election petition alleging that the 1st Respondent (the Barisan Nasional candidate) was wrongly reported as having been elected by the 2nd Respondent (the Returning Officer) and/or the 3rd Respondent (the Election Commission) on the ground that the 1st Respondent was holding an office of profit as the headmaster of a religious school and the secretary to the Tourism Ministry and was therefore disqualified from contesting in GE 14.
 
The Election Court struck out the petition on the ground that the petition was unsustainable as the 1st Respondent’s affidavit clearly showed that he had resigned from those positions before the election.
 
Bagan Serai State Constituency
 
In Adam bin Asmuni v Dato Dr Noor Azmi bin Ghazali & 2 others, the Petitioner (the Parti Keadilan Rakyat candidate) filed an election petition alleging that the 1st Respondent (the Barisan Nasional candidate) was wrongly reported as having been elected by the 2nd Respondent (the Returning Officer) and/or the 3rd Respondent (the Election Commission), inter alia, on the ground that the 2nd Respondent had breached Regulation 15 of the ECER by refusing to allow the Petitioner to enter three of the polling centres, and had therefore deprived the Petitioner’s right to monitor the voting process in these centres.
 
The Election Court struck out the petition on the ground that the Petitioner had failed to comply with Rule 4(1)(b) and paragraph (3) of the form prescribed by Rule (4)(4) of the EPR which require the Petitioner to state the concise facts and grounds relied upon by the Petitioner. This was because the Petitioner had failed to state the particular provision of section 32 of the EOA which the Petitioner had relied upon to sustain the prayers.
 
The Court also held that even assuming that the Petitioner is relying on section 32(b) of the EOA, the Petitioner had failed to comply with the two mandatory requirements under section 32(b), i.e. that there has been non-compliance with the provisions of any written law relating to the conduct of the election and that such non-compliance affected the result of the election.
 
CONCLUSION
 
The above cases illustrate the importance of lawyers being familiar with election law when filing an election petition. Non-compliance with any of the mandatory provisions of election legislation is fatal. As Sulong Matjeraie J (as His Lordship then was) said in Chiew Chiu Sing v Dato' Seri Tiong King Sing [2005] 1 MLJ 759, at paragraph 84:
 
“‘The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirement of the law:’ per Mahajan CJ in Jagan Nath v Jaswant Singh & Ors [1954] SCR 892 at 895.”