ELECTION PETITION NO. K 11 OF 1999 

1. THE PETITIONER BROUGHT THIS ACTION  against The Sabah State Election Officer (the 1st respondent), the Returning Officer, Ismail Bin Majin (the 2nd respondent) and Yong Teck Lee (the 3rd respondent). 

2. Basically, the petition was based on three main grounds:- 

1. That the Election Rolls 1998 which were used in the State Election in March 1999 for the N13 Likas Constituency was illegal as it contained the names of non-citizens and persons who had been convicted for possession of fake identity cards. 

2. That there were corrupt practices; and 

3. Conspiracy. 

2.1 The Electoral Roll 

2.1.1 The gist of the petition is that the 1998 Electoral Poll for Likas Constituency was illegal as it was compiled contrary to the Constitution and Laws of Malaysia; only citizens are eligible to vote in any Parliamentary election or State election (article 119 (1) of the Federal Constitution), and the electoral roll ought not to admit non-citizens or those persons who have been convicted of the offence of possession of fake identity cards. 

2. 1 .3. According to this legislation, if any voter files an official objection against the inclusion of a particular person, the SPR has to hold a Public Inquiry in which the objector as well as the person being objected to are invited. The objector will make out a prima facie case for his objection, then the SPR will require the person being objected to give proof of his residential status. 

2.1.4. It is public knowledge that the presence of a large number of illegal immigrants in Sabah has been for quite some years, and that there are numerous cases of illegal immigrants who have been registered in the electoral roll as voters using fake identity cards or identity cards illegally obtained. This is of grave concern to the Sabahans in particular, and in general to all Malaysian citizens. As a matter of fact, the 3rd respondent (a former Chief Minister) had in the past been consistent in his call to the government to carry out investigations into those cases and had brought up this issue of illegal immigrants in the electoral roll with the SPR many times when he was a member of PBS, and later SAPP. The petitioner, a member of PBS, had carried out his research and investigation, and untiringly made known the results thereof to the government. In this trial, he attempted to produce evidence to the effect before this court. 

2.1.6. The primary contention was that the certification of the 1998 Electoral Roll for Likas Constituency was fraudulent as there were illegal practices in the registration and preparation of the electoral roll for Likas Constituency (N13), which admitted into the electoral roll many non-citizens and persons who were clearly disqualified by virtue of the fact that they had been convicted in a
court of law for possession of fake identity cards. 

2.1.7. The electoral roll for Likas Constituency was certified by SPR in December 1998. Prior to that date, there were 4,585 objections raised in respect of List A and 246 objections in List B. List A consists of names of voters in a constituency and the review thereof was not allowed except in cases of death or loss of eligibility (or disqualification). List B consists of names of voters who had made applications for transfer of constituency, e.g. if a person has changed his address and resides in another constituency. A person has to be in List B before he moves into List A. 

2.1.8. The petitioner testified that there was no hearing in respect of the 4,585 objections in List A, and as such he made an appeal against the non-hearing of the objections to SPR, Kuala Lumpur, which drew a blank. 

2.1.9. Of the 246 objections in List B, only 10 objectors were present at the inquiry held on 15th November 1998. As a result 19 names were deleted in List B; in fact one objector was not even registered with the Jabatan Pendaftaran Negara (JPN). 

2.1.10. There were 4,197 persons having dubious identity cards (Exhibit P15) and the petitioner had written a letter dated 20th April, 1999 to the JPN about them but there was no response. Later his counsel wrote a letter (Exhibit P16) dated 8th September l999 to JPN on the same subject matter and received the same treatment. 

2.1.11. On another occasion he received from the public 36 cases of dubious identity cards (Exhibit P25 (1-36)) which names appeared in the electoral roll for Likas Constituency, and he lodged a report with the police, vide Kota Kinabalu Report No. 1438/1999. It appeared that no investigation had been carried out on the report. 

2.1.13. As a Registering Officer, he registered electors (voters) for the State Election, and he received objections from voters. He testified that he received 4,585 objections to List A and 246 objections to List B. Regarding the objections to List A, there was no public inquiry held. The reason being that there was a strict instruction by SPR that no objection to List A could be entertained except in cases of death or disqualification. The instructions were contained in SPR.'s letters dated 7th and 8th October 1998 (Exhibits P21 and P22) addressed to Pegawai Pilihanraya Negeri Sabah and all Pegawai Pendaftar. A letter ref. SPR(S)273/(42)
dated 7th October 1998 (Exhibit P22) addressed to Pegawai Pilihanraya Negeri Sabah, which stated, inter alia:- 

"2. Sukacita dimaklumkan bahawa Suruhanjaya Pilihanraya telah memutuskan bantahan terhadap Senarai "A" 1997 tidak akan diterima melainkan atas alasan kematian atau hilang kelayakan. Ini bermakna bantahan kepada Senarai "A" 1997 yang diterima atas alasan-alasan selain yang dinyatakan tersebut dari mana-mana pembantah ditolak oleh Pegawai Pendaftar." 

The words "hilang kelayakan" are not defined. They simply mean "loss of eligibility" or disqualification. 

2.1.14. The Pegawai Pilihanraya Negeri Sabah in its letter ref. PPN(O) 1/6(66) dated 8th October 1998 (Exhibit P21) conveyed the decision of SPR. to all Pegawai Pendaftar (Registering Officers) including PW10, as follows:- 

" ..... dimaklumkan bahawa Suruhanjaya Pilihanraya Malaysia telah memutuskan bahawa bantahan Senarai A Daftar Permilih 1997 yang telah disahkan pada 31 Disember 1997 tidak boleh diterima kecuali atas alasan kematian atau hilang kelayakan." 

2.1.15. As a result, the petitioner and a few others made applications to PWI0 appealing against the decision not to hold a public inquiry, whereby the applications were forwarded by PW10 to SPR (HQ) Kuala Lumpur (Exhibit P49). There was no response. 

2.1.17. The letters (Exhibits P21 and P22) of SPR to Pegawai Pilihanraya Sabah did not allow public inquiry to be held regarding the 4,585 objections to List A except in cases of death and the loss of eligibility (i.e. disqualification). Thus a citizen in List A may lose his eligibility as a citizen, for example, in contravention of the provisions of the Federal Constitution and yet remain a voter on the electoral roll. Are persons who have been convicted in a court of law for the offence of possession of fake identity cards, not persons who have lost their eligibility? Are non-citizens who have been registered in an electoral roll, cannot be objected to and, if proven, his name should not be deleted from the roll? 

2.1.18. The SPR has to face the truth. The 4,585 objections in List A were cases of persons having dubious identity cards or persons who had been convicted of having fake identity cards. The people who raised the objections were exercising their rights as citizens, and it is unthinkable that the SPR should shut-off the objections in List A without a public inquiry. It is a constitutional wrong for SPR to have rejected the objections outright. More importantly, it is wrong for SPR to allow non-citizens and disqualified persons to be on the electoral roll as voters. It appears that the certification of the electoral roll for the 1998 Likas Constituency by SPR ultra vires the Constitution and is in fact illegal. 

2.2.1 The identity card is not proof of citizenship. It appears that the SPR takes the identity card as proof of citizenship and a person who produces a blue identity card will be registered in the electoral roll. PW10 (Pegawai Pendaftar Likas) testified at the trial that it was the normal practice that the Pegawai Pendaftar accepts for registration on the electoral roll persons who have blue identity cards and also those with temporary identity cards, that is form JPN 1/9 and form JPN 1/ll. This has been much abused. For example, INDAH MAHIYA BTE ABDULLAH had lost her blue identity card and reported the loss to the police, vide Report No, 2429/98. Based on the police report she was issued with a temporary identity card, form JPN 1/9. It seemed that based on the same police report No. 2429/98; seven other people were issued with form JPN 1/9 (i.e. temporary identity card) as follows:- 

1. Ambun Alaisman Identity card No. H0382459 
2. Siti Rafish bte Yusop Identity card No. H038503 
3. Rahman bin Sultan Identity card No. H0481302 
4. Abdul Hamid bin Hashim Identity card No. H0559359 
5. Rahan bte Dohuls Identity card No. H0573678 
6. Massa bin Angki Identity card No. H0575853 
7. Sodam bin AbduIlah Identity card No. H0481204 

2.2.2 This piece of evidence stood unchallenged. 

2.2.3 In another election case, No. K 1/99 before this court, the petitioner had notified the SPR that there were cases of the use of duplicate identity card numbers in the registration of names in an electoral roll, viz:- 

1. Identity card No, H0867925 held by:- 

Roseniah bt Gano Kudat 
Ngui Chee Ping  Karamunting 

2. Identity card No. H0870205 held by:- 

Luise @ Yiana bt Warisan  Kudat 
Luise Viana bt Warisan  Inanam 

3. Identity card No. H0870883 held by:- 

Saimah bte Ibing  Kudat 
Fauziah bte Mahmud  Lahad Datu 

4. Identity card No. H0872933 held by:. 

Abdul bin Muksin   Kudat 
Saidsaripudin   Balung 

5. Identity card No. H0873447 held by:- 

Yaku b  Dugang  Kudat 
Ajijah bt Hassan  Pantai Manis 

2.2.4 Obviously these are in contravention of Section 35(1)(e) of the National Registration Act. This evidence remains unchallenged. 

Kassim bin Ali  Identity card No. H0508353; 
Anwar  Identity card No, H0512235; and 
Kadir Labak Identity card No. H0454652 

But their names were not deleted and were still in the 1998 certified electoral roll for Likes Constituency. See PW14's evidence (Exhibit P62) - below. Are these not persons who had lost their eligibility - 'hilang kelayakan' within the context of SPR's letter (Exhibit P22)? I should think so. But why has the SPR failed to hold a public inquiry and have their names deleted from the electoral roll?. 

2.2.6. How easily many of the immigrants, Filipinos and Indonesians, had obtained citizenships in this manner, i.e. through their applications for identity cards, was well illustrated by the testimony of Asainar b Ibrahim @ Hassan, (PWll), a former District Chief for Bandar Sandakan from 1982 - 1985. A system which was established before Malaysia Day 1953 where an appointment of District Chief, a parallel appointment (a political appointment), vis-a-vis the District Officer was appointed by the government. PW11 was a Pegawai Perhadanan Kemajuan Sabah, later Ahli Lembaga Bandar Sandakan and Ketua Daerah Sandakan in 1985. 

2.2.7 He testified that there were two categories of applicants for the blue identity cards. Those persons under 12 years old and who have birth certificates have no difficulty in obtaining blue identity cards. Those above 12 years old and who have no birth certificates may obtain identity cards by using form HMR 10 (JPN). This form is filled up by the parents and submitted to the District Chief who supported the application and sent the form to the District Officer concerned, who, based on the recommendation of the District Chief, approved the application. The Jabatan Pendaftaran Negara then issued the blue identity card. When PW11 was first appointed as the District Chief, he had no idea of what was going on and he
recommended, without question, the 1,000 and more of such applications that he received from the Native Court and, on his recommendation, they were issued with blue identity cards. He said that "the main factor causing loss to Berjaya Government in 1985 to PBS was because Berjaya leaders sold the rights of Sabahans to foreigners, totaling 40,000 by making them blue identity cards, thus they became citizens." He was a Berjaya Party candidate in Sungei Sibuga Constituency in the 1986 State Election but lost. 

In 1998 it was alleged that he was involved in a project to process and distribute blue identity cards to illegal immigrants in Sabah, the Filipinos and the Indonesians. On 9th July 1988 he was detained under the ISA for 60 days and thereafter he was placed under restricted residence for 2 years. He was never charged in court to this day. He alleged that there was a conspiracy at the highest level to register illegal immigrants as voters (see below). 
 

He observed that there were numerous immigrants who had obtained blue identity cards in a relatively short time, 3 months or 3 years, while it took him 23 years to change his Malayan identity card into an identity card of Sabah through the normal process. He testified that of the 43,000 new Umno members recruited at the time, only 14,000 had genuine blue identity cards, the rest he did not know how they got their blue identity cards. 

From 21st October 1996 there was an exercise to recruit Umno members for 3 days which attracted 10,211 new Umno members. They applied for identity cards, but only 180 applications for identity cards from these members were approved by Jabatan Pendaftaran Negara, and the rest were rejected. 

The exposure of fraudulent practices such as massive registration of phantom voters is time consuming. However, it has to be done if we wish to defend and preserve the meaningful practice of democracy in Malaysia. As custodians of free and fair elections, the SPR is duty bound to do it. 

It appears that the SPR had deliberately or knowingly sent those letters (Exhibit P21 and P22) that prohibit the holding of a public inquiry (except in cases of death or loss of eligibility). No one knows the reason or the rationale for doing so, this is best known only to the SPR. It is obvious that the SPR's lack of action in holding a public inquiry in the face of the objections is unacceptable. Therefore the certification in December 1998 of the electoral roll for Likas Constituency was not bona fide. 

The failure of SPR to maintain an electoral roll in accordance with the law makes the electoral roll illegal. Such is the case in the 1998 electoral roll for Likas Constituency (N13). I would in the circumstances, uphold the petitioner's petition that the 1998 electoral roll for Likas Constituency (N13) was illegal.