Tips from a judgement in Election Petition No. K. 5/99, Sabah

THE PETITIONER  in this case was Datuk Mohd. Harris Salleh, 69 years old, a veteran politician who was the President of the Bersekutu Party. He had been in politics for 37 years and was a former Chief Minister of Sabah in 1984. The Bersekutu Party led by the petitioner had not fared well in the last few state elections, and in this election it fared no better. 

This Election Petition No. K. 5/99 essentially concerns an offence under the Election Offences Act, 1954, i.e. the making and erection of the four (4) billboards containing false statements, made by the 2nd respondent or his agents. The court had allowed the application by the 1st respondent (the Returning Officer, Ismail Bin Majin) and the 7th respondent (the Election Commission of Malaysia) to be struck out as parties in this petition as they were not parties to the alleged offence regarding the billboards. 

The petitioner alleged that during the 1999 election, the parties had used unfair practices which constituted offences under the Election Offences Act, 1954, in particular the putting up of 4 huge billboards in the vicinity of the Likas polling station. These huge billboards, measuring 16' x 21' each, bore no printer's name and address on it as required by the law. The billboards were put up on the eve of the polling day (10th March 1999) at strategic points: viz. Simpang Jalan Sepangar, Kg. Gusing (Likas), near Masjid Kg. Likas and Simpang Jalan Tuaran/Jalan Telok Likas in front of Bersekutu Headquarters. These billboards contained false statements of facts, which seriously defamed the petitioner and which had directly or indirectly affected the results of the election in the Likas Constituency. 

     (a) Paragraph 3(A)(iv) 

     The Second Respondent and/or his agents had with his knowledge or consent during the above election printed,   distributed and or posted up advertisements, handbills or posters which refers to the said election and which does not  bear upon its face the names and addresses of its printer and publisher: 

Particulars 

     "An Election advertisement board which was erected at the junction of Jalan Tuaran/Jalan Telok Likas at Kota Kinabalu on the 10th March 1999 under the heading "Sebilangan Besar Dosa-Dosa Harris Yang Tidak Boleh Dimaafkan Oleh Rakyat Sabah." 

     (b) Paragraph (b) 

     "An election advertisement board which was erected at the junction of Jalan Tuaran/Jalan Telok Likas at Kota  Kinabalu on 9th day of March 1999 under the heading "Reject This Arrogant Politician", 

     (c) Paragraph (c)

     "An Election advertisement board which was fixed at a workshop at Taman Nelly, Kolombang, Inanam at Kota Kinabalu on or before 10th March 1999 under the heading "Sabah Petroleum Deal KTV". 

     Sebilangan Besar Dosa-Dosa Harris Yang Tidak Boleh Dimaafkan oleh Rakyat Sabah: 

     1. Siapa menjatuhkan Tun Mustapha/USNO? Dia 
     2. Siapa serahkan hasil minyak Sabah? Dia 
     3. Siapa jual Labuan? Dia 
     4. Siapa mengusir orang-orang Islam di setinggan? Dia 
     5. Siapa menindas pegawai-pegawai kerajaan Islam '75 - 85' (9 tahun)? Dia 
     6. Siapa menipu Tun Mustapha naik ke Istana angkat sumpah? Dia 
     7. Siapa yang mengetuai rusuhan 1986? Dia 
     8. Dan banyak dosa-dosa lain lagi. 

The English translation of the statements are as follows:- 

     1. Who brought down Tun Mustapha/USNO? He 
     2. Who surrendered oil revenue of Sabah? He 
     3. Who sold Labuan? He 
     4. Who chased out Muslims at squatter areas?He
     5. Who victimized Muslim Government officers '76 - 85 (9 years)? He 
     6. Who cheated Tun Mustapha into going up to the Istana to be sworn in? He 
     7. Who led the riots in 1986? He 
     8. There are many other sins. 

     (1) Sabah Oil Revenue 
     (2) Labuan; and 
     (3) Riot in 1986. 

Sabah Oil Revenue 

Following the discussions held in 1974 between the Prime Minister and the Chief Ministers of Sabah and Sarawak respectively, it was agreed that Parliament passed the Petroleum Development Act 1974, wherein it was agreed that all the 13 States in Malaysia, would relinquish the fight over petroleum in each state to a statutory body to be established, known as Petronas. 

On 22nd March 1975 via an agreement between Petronas and Sabah, Sabah will relinquish its right over petroleum found in the State of Sabah to Petronas. In other words, the right over petroleum is vested forever in Petronas. Petronas, in return for the right given by Sabah State, will pay the 10% royalty on the petroleum received from its contractors, Shell and Esso, 5% to the State of Sabah where petroleum was found and 5% to the Federal Government. Similar agreements were concluded between Petronas and each of the other 12 States. 

The Sabah Government was represented by the Chief Minister (then the late Tun Fuad) and Petronas by its Chairman (Tengku Razaleigh Hamzah). Apparently, each of the 13 States (in Malaysia) relinquished the fight over petroleum in its State to Petronas, even though some of the States has no petroleum, for instance, the State of Trengganu relinquished its right over petroleum via the 1975 agreement with Petronas although no petroleum was found in the State of Trengganu then. 

Labuan was never sold to the Federal Government as there was no payment received by the Sabah Government or Harris. It was agreed by the Federal Government and the Sabah Government that the administration of Labuan be given to Wilayah Persekutuan which had the resources and finance to develop Labuan effectively, in the words of Harris, as it were it would be another "Singapore" (perhaps a smaller Singapore). 

When the Rang Undang-Undang Wilayah Persekutuan Labuan 1984 was tabled in Parliament, there was no opposition from any quarters especially Sabah. As such Sabah had consented to the passing of the law which created the Wilayah Persekutuan Labuan, a territory in Malaysia, and the Federal Government was not involved in the administration of Wilayah Persekutuan Labuan at all. The statement in the billboard that Harris had sold Labuan to the Federal Government was absolutely absurd. 

According to evidence in court, Harris had never been involved in riots of any kind in Sabah all his life. Harris had never bean charged nor convicted of an offence of riot. However, on 23rd March 1986 at the invitation of Tun Mustapha (the late) he participated in a peaceful demonstration for the Muslim community, and no arrest was made. This was confirmed by PWl7, Datuk Hj. Abdul Karim Bin Abd. Ghani (the UMNO Sabah Chief), in his testimony at this hearing. This evidence stood unchallenged. 

The putting up of the huge billboards was undertaken by the workers of SAPP surreptitiously on the eve of the polling day as testified by several witnesses including PW6 and PW7. They were put up in the stealth of the night at the above mentioned places, and were hastily dismantled almost immediately after the close of polling on the following day. It was observed that these billboards bore the BN symbols, but did not carry the printer's name and address thereon. Following an investigation by PW6 and PW7 (Harris's men), they found a workshop where the billboards were printed, and on inquiry they were told that it was on the instruction and direction of SAPP officials. There is no evidence to show that the 2nd respondent personally put up the billboards but it was the SAPP officials or workers who put up these billboards. There was no evidence in rebuttal to this piece of evidence. 

The work of SAPP members or agents in erecting those billboards may be imputed to its leader, i.e. the 2nd respondent. There is no evidence to show that he had no knowledge about this. Evidently it is clear that these billboards were erected for the sole benefit of the SAPP (BN) candidate, the 2nd respondent. 

Section 11 of the Election Offences Act 1954 states:- 

     "(1) Every person who - .......................... 
     (a).............. 
     (b)............... 
     (c)................ prints, publishes, distributes or posts up or causes to be printed published, distributed or posted up any  advertisement, handbill, placard or poster which refers to any election and which does not bear upon its face the names and  addresses of its printer or publisher, 

     (d) makes or publishes, before or during an election, for the purpose of affecting the return of any candidates, any false  statement of fact in relation to the personal character or conduct of such candidate; 

     (e) ................ 
     (f) ............................. 

     shall be guilty of a corrupt practice, and shall, on conviction by a Sessions Court, be liable, in the case referred to ........... and, in  any other case. to imprisonment for six months and to a fine of five hundred ringgit."    See Ali Amberan v Tunku Abdullah (1970) 2 MLJ 15. 

     "S 127A - Restriction on the printing of pamphlets, posters etc. 

     (1) No person shall print or publish, or cause to be printed or published, any election pamphlets or poster which does not bear on its face the names and addresses of the printer and the publisher thereof." 

 It should be noted both the acts prohibited by subsections (c) and (d) of section 11 are classified as "corrupt practice". 

Learned counsel for the petitioner submitted that there is no necessity to prove that a corrupt practice or illegal practice had affected the result of the election. In other words, an election is void if corrupt practice had been proved without any need to examine whether such an act had in fact "affected the result of the election". Even under section 32(a) of the Election Offences Act, 1954, where there is non-compliance, we do not have to prove that results were affected. 
 

     "The election of a candidate at any election shall be declared to be void on an election petition on any of the following grounds  which may be proved to the satisfaction of the Election Judge: 

     (a) that general bribery, general treating or general intimidation or other misconduct or other circumstances whether similar to  those before enumerated or not 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 any election if it appears that the election was not  conducted in accordance with the principle laid down in such written law and that such non-compliance affected the result of  the election; 

     (c) that a corrupt practice or illegal practice was committed in connection with the election by the candidate or with his  knowledge or consent, or by say agent of the candidate; 

     (d) that 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) that the candidate was at the time of his election a person disqualified for election." 

In re Ranjong Puteri Johor State Election Petition, Abdul Razak bin Ahmad v Datuk Md. Yunos bin Sulaiman & Anor. (1988) 2 MLJ 111, Wan Yahya J. (as he then was) adopted the rationale enunciated in Morgan & ors. v Simpson & anor. (1974) 3 All ER 722 that an Election Judge could declare an election void if the management of the election was not conducted substantially in accordance with the election law irrespective of whether the irregularities complained of had affected the election result or not. This was followed by Ahmad Fairuz J. (as he then was) in Abd Hamed b. Manat v Uz Baharudin b. Mohd  & 2 ors (1993) 1 AMR 1. 
 

Under section 32 of the Election Offences Act, 1954 it has been laid down 'the grounds' which may be proved to the satisfaction of the Election Judge. This also applies to section 11 of the Act. What then constitute 'to the satisfaction' of the court. 

Wan Yahya, Judge (as he then was) in Tanjong Puteri's case (supra) states at page 113: 

     "It is neither wise nor practical to lay down an inflexible standard of proof to be followed in an election case when dealing with such application and for that reason the legislature has obviously left it for the election court to decide the quality of evidence  required to prove a case according to the circumstances of each case." 

See also Abd Hamed b. Manat's case (supra) 

In Datu Mustapha b. Datu Harun v Tun Datuk Hj. Mohd Adnan Robert (1986) 2 MLJ 420 Tan Chiaw Thong J. held that where there are allegations of criminal misconduct and threatening behaviour, which amounts to criminal offence, the party alleging must prove its case on the balance of probabilities. See Eastern Enterprises Ltd v Ong Choo Kim (1969) 1 MLJ 236 and Lau Hee Teah v Hargill Engineering Sdn Bhd & Anor (1980) 1 MLJ 145. 

In Hamad bin Mat Noor v Tengku Sri Paduka Raja & ors (1993) 3 MLJ 533, Lamin J. (as he than was) came out in strong terms: 

     "(1) The alleged acts of corrupt practice within the meaning of s. 32(c) of the Election Offences Act 1954 ('the Act') and none of  the acts enumerated in s. 32 of the Act was criminal in nature. If such alleged acts were proved, then it would be a ground to  declare the election of the respondent concerned null and void but there would be no finding of guilt and no conviction. 

     (2) A court of an election judge was a civil court and such a conclusion was fortified by s 33(2) of the Act in that the judge's power to call witnesses and to have them sworn before him was as nearly as circumstances admit as that of a High Court judge  sitting in exercise of his 'original civil jurisdiction'. 

     (3) In order to determine whether an act is criminal in nature, one must ask the question as to whether it entails penal  consequences. The acts enumerated in s 32 of the Act would not be visited by some form of punishment and therefore, the standard of proof required must be that as applied in civil proceedings, that is on the balance of probabilities," 

It was held by Lamin J. (as he than as) in Hamad's case (supra) that the burden of proof lies on both sides i.e. the petitioner and the respondent. In Mursin b Laini @ Matdin v Datuk Fred Sinidol (1983), the Writ Journal of the Sabah Law  Association Vol. p. 11, Chong Siew Fai J. (as he then was) cited with approval Indian cases which hold that the returned candidate is not altogether absolved from all liability to adduce evidence to disprove the case of the petitioner, for instance, to prove facts within his special knowledge. 

In Shen Yuan Pai v Dato Wee Hood Teck & ors (1976) 1 MLJ 16 where the late B.T.H. Lee J. held that the omission by the defendant in not calling their agent to give evidence in support of their case should be viewed against them. 

In Sarlar on Evidence, 13th Edition, page 961 it was provided that the said principle of law applies equally in election cases. The legal maxim lex non cogit ad impossibilia which means "the law does not require a man to do that which he cannot possibly perform". 

A candidate at an election is responsible for the acts of his agents who are not and would not necessarily be agents under the common law of agency. In Ali Amberan's case (supra), his Lordship Raja Azlan Shah J. (as His Royal Highness then was) said:- 

     "Inspired and guided by English and Indian election law I take the view that the rule of extended scope of agency holds good in our election law; any other view would tend to make it impossible to preserve the purity and freedom of elections. Accordingly a candidate at an election is responsible for the acts of agents who are not and would not necessarily be agents under the common law of agency. Therefore a political party and its prominent members who set up the candidate and with his consent,  either expressly or by necessary implication, sponsor his cause and work actively to promote his election, may aptly be regarded  the "agents" of the candidate for election purposes." 

See Gurdial Singh Nijar v K.S. Balakrishnan (1993) 2 CLJ 75. 

The 2nd respondent had failed to put up evidence in rebuttal to the petitioner's case, and I found that the petitioner's case had been proven on a balance of probabilities. 

His Lordship Raja Azlan Shah J. (as His Royal Highness then was) in Ali Amberan's case (supra) said: 

     "It is of significance to note that the primary purpose of the diverse provisions of the election law which may at first-hand appear to be technical is to safeguard the purity of the election process and the courts will not in ordinary circumstances minimize their operation. It is the concern of the courts to purge elections of all kinds of corrupt or illegal practices so as to protect the political rights of the citizens and the constituency." 

On the evidence as a whole, I find that the 2nd respondent had committed an offence under section 11(c) and (d) and section 32 of the Act. I would declare the election of N13 Likas Constituency null and void.