Kuala lumpur, June 12 – The time has come for political parties to face court battles to challenge the 13th general election (GE13) results, as the deadline for filing election petitions is today.
Some politicians claime is almost impossible to win an election petition as the standard of proof “is beyond human capacity” and furthermore, they cannot not challenge the Electoral Roll anymore.
As an example, the party filing the petition must prove beyond a reasonable doubt that the opposing side had given inducements or intimidated voters to influence their voting as the opposing side can argue that they wanted to cast their ballots for them.
Even some lawyers say it is hard to win an election petition due to Section 9(a) of the Elections Act 1958, which protects the Electoral Roll from being challenged in court as a result of an amendment to the act in 2002.
Under the Election Offences Act 1954, an election petition can only be filed on specific grounds, such as bribery being involved, threats and procedural irregularities.
A senior lawyer, who has vast experience in filing election petitions, however, refuted this.
He explained that the issue was not about existing election laws and regulations but more on understanding the basic premises of election laws, such as why they were drafted in such a way.
“You need to understand that when you file an election petition… you are challenging the will of the voters. Election itself is a democratic process. If you want to challenge the will of the people then you need to show that the result did not reflect the will of the people.
“As an example, you just cannot say three persons were bribed and you file an election petition to claim that the three person can overrule the majority of voters if the candidate won by 1,000 votes,” said the senior lawyer, who did not wish to be identified.
“If you are challenging on the premise of non-compliance of procedure, you need to prove that this has affected the overall result. Lets say, if you said indelible ink is washable, you must show how many of them had come back to vote twice to the extent that it affected the overall result,” he explained.
Gerakan-linked think tank, Social Economic Development and Research (SEDAR) Institute executive director Ivanpal S. Grewal said the high standard of proof was required for any election petition as “a judge would not simply want to overturn the people’s choice” unless the petitioner had very strong evidence of irregularities which finally affected the overall result.
“There must be a critical mass that affected the election result. Lets say some voters were bribed, the alleged offences must meet a critical mass in the sense it had affected the election result and caused one person to win unfairly,” he said.
Election Commission (EC) deputy chairman Datuk Wan Ahmad Wan Omar has also refuted that Section 9(a) of the Elections Act 1958 is a hindrance for any election petition as there are many other grounds such as election offences.
“Section 9(a) of the Elections Act 1958 provides finality to the Electoral Roll (ER). If the Electoral Roll can be challenged every time it has been gazetted following due process, then there is not no end to it and nobody will be elected,” he was quoted as saying.
According to Wan Ahmad, the EC updates the ER on a daily basis and gazettes it quarterly after a stringent due process with the list being exhibited for 14 days and the names verified by the National Registration Department (NRD).
After the 12th general election in 2008, 29 election petitions were filed but only one was successful. The case involved the Sanglang state seat in Perlis whereby the Federal Court declared PAS candidate Hashim Jasin as the rightful winner for the seat.
The Kangar Election Court had earlier declared the seat won by Barisan Nasional’s Abdullah Hassan to be vacant following a petition filed by Hashim, on grounds that the election result was contrary to the figures stated in EC’s Form 14, which showed that he had won with a 47-vote majority.
Form 14 is the form that records the results for the respective polling streams, with signatures from the polling stations’ presiding officers and counting agents.
Hashim’s lawyer Zulmi Sabri, when contacted by Bernama, said the main challenge for the petitioner was to be able to file an election petition within 21 days of the election result being gazetted.
“The challenge is how you are able to gather solid evidence and present a strong case within the period. In our case, we coordinated all the election petitions for various states. This helped us in fulfilling the petition requirements, getting through the PO (preliminary objections) and then full hearing.
“Despite all this, what I can tell you is that it is still tough for the petitioner, but not impossible to win,” he said, adding that Sanglang case was the only successful election petition recorded by PAS.
Despite the task being being called an “uphill battle” for petitioners, senior lawyer Roger Tan believes that the Election Court is still the best platform to resolve a dispute over an election result and claims on election irregularities.
“Prove it in the court, otherwise accept the result. That is what is all about democracy, not democrazy (repeat democrazy),” he said.
With the deadline to file election petitions up today, Barisan Nasional has decided to file 21 election petitions while the opposition pact of DAP-PKR-PAS 34.
Chief Justice Tun Arifin Zakaria has been reported as having given assurance that the petitions can be settled within a year if everything proceeds smoothly.
– BERNAMA
