FEDERAL COURT OF MALAYSIA
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www.ipsofactoJ.com/appeal/index.htm [2004] Part 4 Case 5 [FCM] |
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FEDERAL COURT OF MALAYSIA |
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Judgment
Abdul Hamid Mohamad, FCJ
(delivering the judgment of the court)
In the general election for the Parliamentary constituency of Bukit Bintang held on March 21, 2004, the first respondent was returned with a majority of 304 votes. On April 29, 2004 the appellant (petitioner in the High Court) filed an election petition, praying primarily for the following declarations that:
the election was void; and
the first respondent was not duly elected or ought not to have been returned.
Both the prayers are based on s 35(a) and (b) of the Election Offences Act 1954 (the Act).
According to the notes of evidence, counsel for the respective parties appeared before the learned election judge on May 28, 2004 for what appears to be case management. The respective counsel informed the learned judge of the number of witnesses they intended to call at the trial. Mr. Amarjeet Singh, the senior federal counsel appearing for the second and third respondents also informed the court that there would be "some preliminary objections". The learned judge fixed the dates for the trial of the petition. The learned judge also directed learned counsel for the parties to file written submissions on the preliminary objections by certain dates and recorded that the decision on the preliminary objections would be given on July 21, 2004, the first day fixed for the trial. The learned judge also directed the parties to exchange witnesses' statements by certain dates about three weeks before the date fixed for the decision on the preliminary objections and the commencement of the trial.
On July 21, 2004, the learned judge gave his decision on the preliminary objections. The learned judge, in a written judgment, ruled that the petition was defective and ordered that it be struck out and awarded costs of RM1,000 to the first respondent and costs to be taxed for the second and third respondents. The appellant appealed to this court pursuant to s 36A, which had been inserted recently by Act A1177 of 2002.
Before us the respondents raised yet another preliminary objection that the petitioner had "no locus standi" to maintain the appeal. Two grounds were forwarded.
First, the petition did not state that the petitioner was either a "person who voted" or a person who "had a right to vote" at the said election. In other words, it was submitted that the petitioner should state either one of the two alternatives, not both. It is to be noted that in the petition, the petitioner stated [translation] (emphasis added):
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1. |
Your Petitioner is a person who voted or had a right to vote .... |
The second ground forwarded in the preliminary objection was that the judgment of the learned judge striking out the petition was not appealable under s 36A of the Act.
THE FIRST GROUND
The crux of the argument is that the petitioner should have said in the petition that either he had voted OR that he had a right to vote, not both.
Section 34 of the Act provides:
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34. |
An election petition may be presented to the High Court by any one or more of the following persons:
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Rule 4 of the Election Petition Rules 1954 (the Rules) provides:
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4. |
(1) |
An election petition shall contain the following statements:
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(4) |
The following form, or one to the like effect, shall be sufficient:
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What s 34 means is that any person falling under one of the descriptions has the locus standi to present an election petition. But, a person may also fall under more than one of the descriptions. He may have a right to vote, he may have voted and he may also be a candidate and claims to have a right to be returned or elected at the election. He is equally qualified, if not more, to file a petition. He may choose to state only one of the qualifications or some of them or all of them if they suit him. In either case he has the locus standi to present a petition.
The form provided in rule 4 contains the words "as the case may be" between the words "voted or had a right to vote", thus leading to the argument that a petitioner has to choose either one and not both.
We think there is no merit in this argument.
First, there is no reason why, if a person falls under more than one description relating to his qualification to present a petition, he may not rely on all of them and state all of them, if he so wishes.
Secondly, the words "as the case may be" in rule 4 certainly cannot limit the provisions of s 34 of the Act.
The point is, if a person falls under one or some or all the descriptions relating to his qualification to present a petition, he has the locus standi to do so and he may state any or some or all of such qualifications that apply to him. In either case, he has the locus standi to present the petition. So, there is nothing wrong in what the petitioner did in this petition. In fact, he strictly followed the wording in the Act.
We have read the authorities referred to us which consists mainly of Indian cases. We do not think they offer any assistance in the determination of this issue. The law is clear and we should focus our minds on it. We do not think we need to discuss them.
THE SECOND GROUND
It was argued that since, in this case, the learned judge merely made an order striking out the petition before the trial commenced, the order was not a "determination" as stated in s 36 made at the conclusion of the trial of the election petition. Since s 36A(1) only provides for an appeal "against the determination of an Election Judge", the order made in this case is not appealable since it docs not fall within the provisions of s 36A(1).
To appreciate the position, I think it is worthwhile to go back into the history of the relevant provisions of the law. Prior to May 2, 1986, s 33(4) of the Act provided:
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33. |
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Unless otherwise ordered by the Chief Judge, all interlocutory matters in connection with an election petition may be dealt with and decided by any Judge of the High Court. |
That had given rise to some uncertainties whether there was a right of appeal in regard to interlocutory orders. See, for example, Re Perting Timor Election (No 2) [1962] MLJ 333 (former CA), Devan Nair v Yong Kuan Teik [1967] 1 MLJ 261, PC and Dason Gaban v Zulkifli Majun [1982] 1 MLJ 313, FC. In Dason Gaban, Suffian LP, invited Parliament to consider the ambiguity in the law and to decide as a matter of policy whether or not interlocutory orders made in an election petition should be appealable and to legislate accordingly.
Subsequent to that Parliament by Act A640 that came into force on May 2, 1986 amended s 33(4) by inserting the words "whose decision shall be final." That settled the issue: that there was no appeal against interlocutory orders made in election petitions.
Since the Act was enacted, s 36 contained the words "such determination shall be final." This provision had consistently been interpreted to mean that there was no right of appeal against the determination of the election petition by the election judge - for discussion of the cases, see Yong Teck Lee v Harris Mohd Salleh [2002] 3 AMR 2752; [2002] 3 MLJ 230, CA.
So, from May 2, 1986, the position of the law was that there was no right of appeal at all against any order arising from an election petition, whether the order is in respect of an interlocutory matter or whether it is a final determination of the election petition at the conclusion of its trial.
Following Yong Teck Lee, supra, Parliament decided to provide an appeal against the determination of an election judge. It did so by amending s 36 and introducing s 36A. This was done by Act A 177/2002 which came into force on January 16, 2003.
The two sections now read:
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36. |
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At the conclusion of the trial of an election petition, the Election Judge shall -
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(2) |
The Election Judge shall within fourteen days of making his determination under subsection (1) certify his determination -
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36A. |
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The petitioner or a candidate whose return or election is complained of may appeal against the determination of an Election Judge to the Federal Court. |
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Every appeal under this section shall be presented within fourteen days from the date of the determination of the Election Judge under section 36 and such appeal shall be presented in accordance with the rules of court applicable to appeals to the Federal Court. |
It is to be noted that with the substitution of s 36, the words "such determination shall be final" had been removed. On the other hand, s 33(4) was not amended. The words "whose decision shall be final" are still there. This can only mean that whereas Parliament intended to provide the right of appeal against the determination of the election judge as mentioned in s 36, it did not intend to provide the right of appeal against a decision made in an interlocutory matter mentioned in s 33.
Another point to note is this. Even prior to the amendment of s 42 of the Act by the same amendment Act (Act A1177/2002), courts had been entertaining preliminary objections and applications, usually by notices of motion, to strike out election petitions. Election petitions had been struck out on such applications. In other words, not all petitions proceeded to trial and final determination at the conclusion of the trial. Examples of such applications are to be found in Patau Rubis v Patrick Anek Uren [1984] 1 CLJ 51; Devon Nair v Yong Kuan Teik [1967] 1 MLJ 261; Kua Kia Soong v Mohd Nor Bador [1996] 1 CLJ 429; Wan Daud Wan Jusoh v Mohamed Ali [1988] 2 MLJ 384; Muip Tabib v Dato' James Wong [1971] 1 MLJ 246; Raja Ahmad Raja Sulaiman v Mohd Daud Jaafar (Mahkamah Tinggi Malaya di Kota Bharu, Petisyen Pilihanraya No 33-5-1995 unreported); Hugh Siak Meng v Daing lbrahim Othman (Ipoh-Election Petition No 1 of 1975, reported in Tunku Sofiah's Malaysia Election Laws p 503) and Harris Mohd Salleh v Ismail Majin, Returning Officer [2000] 3 MLJ 434. In Devan Nair v Yong Kuan Teik, supra, Lord Upjohn said:
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The election judge must, however, have an inherent power to cleanse his list by striking out or better by dismissing those petitions which have become nullities by failure to serve the petition within the time prescribed by the rules. |
Learned counsel for the appellant made a point that that passage only refers to petitions that had become nullities, not petitions in respect of which applications are made to strike out on other grounds. In our view, even if that is so, the fact remains that petitions may be struck out or dismissed without the election judge having to go through the whole process of trial. And there was no right of appeal against such orders just as there was none against a final determination by an election judge.
That was the state of the law at the time the amendment (Act A1177/2002) was enacted. The amendment Act clearly provided for appeals against the final determination of an election judge but made no mention regarding appeals in respect of interlocutory orders or) even orders striking out the petition which in fact finally disposes of the petition without going through the process of trial and making a determination at the conclusion of it. Certainly it cannot be said that the drafters of the amendment Act did not know the state of the law and practice when they drafted the amendment Act. Parliament is always presumed to know the law. Parliament had enacted the amendment Act in the way that it did. Its intention must be gathered from the words used by it. The only conclusion that we can arrive at is that it was not the intention of Parliament to provide for an appeal other than against the final determination by the election judge at the conclusion of the trial.
Since the order made by the learned judge, even on a preliminary objection, disposes of the petition, can it be said to be a determination at the conclusion of the trial? In our view it is not. This is because the "trial" (meaning the hearing of witnesses and so on) had not even commenced, what more concluded and the election judge did not "determine" on evidence whether the candidate whose return or election was complained of was duly returned or elected or whether the election was void.
Reading the words of s 36A together with s 36, it is clear that an appeal is only available against the determination of the issues provided in paragraph (a) of s 36(1) at the conclusion of the trial of the petition. In the context of s 36, we do not think that the word "trial" can be interpreted to mean anything other than a full trial and that the determination of the issues to mean other than a judgment or decision given after having considered the evidence adduced and the relevant law. The provision cannot and should not be stretched to mean an order made purely on procedural grounds on a preliminary objection before the trial even begins, even though it disposes off the petition.
We are aware that this conclusion leads to an anomalous result in that, where a judge strikes out a petition without a trial, without hearing the evidence but purely on procedural defect, the order is not appealable. On the other hand, where the election judge makes his "determination" after a full trial, and having heard and considered the evidence, it is appealable. But, to hold otherwise, would in effect be to read words into or to rewrite the section, which is not the function of the court.
In this respect, we find support in the judgment of HH Lee J (as he then was) in Chong Thian Van v Watson [1968] 1 MLJ 65. That was a case where the notice of presentation of the election petition could not be published in the gazette within the time specified in rule 15 because the printing machine at the government printer broke down. The election judge was urged to give a "beneficial interpretation" of rule 15 "in the sense that the mischief shall be suppressed and the remedy advanced" because the petitioners had done all that was possible in the circumstances. The election judge rejected the submission and, inter alia, said:
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However, it is equally important to see that the construction must not be strained to such an extent as to include cases plainly omitted from the natural meaning of the words in the statute .... As to the question of time the Ordinance and Rules are clear and unambiguous. There is therefore no question of casus omissus in the rules. The court should approach the matter with caution where it has been urged to construe any enactment in a manner which may result in the extension of any provision of any enactment. The court should decline to interfere where a person is seeking its aid in order to relieve him against express statutory provisions which it considers to be mandatory. Craies on Statute Law, 6th edn, p 71 has this to say:-
The House of Lords has laid down in Magor & St Mellons Rural District Council v Newport Corporation that in construing a statute the duty of the court is limited to interpreting the words used by the legislature and it has no power to fill in any gaps disclosed. To do so would be to usurp the function of the legislature. ([1932] AC 189 at p 190) |
The learned judge in that case then quoted Lord Simons who strongly criticised Denning LJ on his approach to the question of construction which we do not think is necessary to reproduce. He also quoted Lord Wright's observation in Assam Railways & Trading Co Ltd. v Inland Revenue Commissioners and also referred to other cases and went on to say:
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The facts that the notices had been sent to the government printer on June 3 and that the machines broke down cannot be construed to mean that rule 15 has been literally complied with. Such a construction would mean reading words into the rule where there is no reason to do so as the rule clearly specifies the time of service. It would be wrong to strain words to meet the justice of the present case, because it might make a precedent, and lead to dangerous consequences in other cases. If there is any defect in the rule and amendment is necessary the remedy lies with the legislature. The court should not assume the function of the legislature by filling in omission which may be deliberate ([1935] AC 455 & 458). |
In this case, it is not just a matter of one of the requirements regarding the service of the petition which is strictly procedural. It is a matter of jurisdiction of this court, whether it has the jurisdiction to entertain the appeal or not. It is certainly more serious than a procedural requirement. Considering that jurisdiction is a matter conferred by law which is within the province of the legislature, it is certainly a usurpation of the legislative power for the court to fill the lacuna in the law whether or not it was intentional and even with the view to do justice in this case. In any event, it will set a very dangerous precedent, especially coming from this court.
All that this court can do, as was done by the court in Dason Gaban v Zulkifle Majun [1982], supra, is to invite Parliament to consider as a matter of policy whether or not an order made by an election judge, not being a "determination" at the conclusion of the trial of the election petition that disposes the petition, should be made appealable.
In the circumstances, we would allow the preliminary objection on the second ground and dismiss the appeal.
THE APPEAL
Since we have also heard arguments on the appeal and this is the first case that has come to this court by way of an appeal since the amendment, we think we should also deal with the appeal.
The appeal is against the decision of the election judge striking out the election petition on a preliminary objection. In the election petition, the appellant was seeking a declaration that the election was void or that the first respondent was not duly elected or ought not to have been returned based on five grounds:
The first respondent carried out the election campaign in contravention of ss 24B(1), (4), (6), (7) and (10) and 32(b) and (c) of the Act.
The second respondent failed to comply with the procedure at the completion of polls in contravention of reg 24(1) (c) of the Elections (Conduct of Elections) Regulations 1981 (the Regulations).
The second respondent failed to comply with the procedure after the counting of votes in contravention of reg 25(12)(b)(ii) of the Regulations.
The second respondent failed to comply with the procedure prescribed in reg 25A(1) and (2) of the Regulations.
The second respondent took into account rejected ballot papers and spoilt papers during the recount in contravention of reg 25D(5B) of the Regulations.
The second and third respondents raised preliminary objections on three grounds:
the election petition does not satisfy the mandatory requirements of rule 4(1)(b) as there are no facts, and/or insufficiency of facts to sustain the prayers;
the election petition does not satisfy the mandatory requirements of rule 4(1)(b) of the Rules as no grounds are stated to sustain the prayers;
the election petition does not satisfy the mandatory requirements of rule 4(1)(b) of the said rules read with s 32(b) of the Act as the election petition lacked facts and grounds alleging that the non-compliance of written law relating to the conduct of elections had affected the result of the election.
After hearing submissions on the preliminary objections, the learned judge held that the said petition was defective as the mandatory requirements were not met. As such the said petition was struck out with costs.
We do not think that it can now be argued that an election judge has no power to strike out an election petition but must go through the whole process of trial and make a determination at the conclusion of the trial. We have seen that it had been the practice of election judges in this country ever since the law on elections were introduced in this country to strike out election petitions in appropriate cases. The observation by the Privy Council in Devan Nair, supra, is very clear. However, parties differed as to whether an election petition may be struck out for want of particulars. Learned counsel for the appellant relied on the decision of Muhammad Kamil Awang J in the case of Harris Mohd Salleh v Ismail Majin, Returning Officer, supra, for the proposition that insufficient particulars cannot be a good reason for striking out a petition as particulars, if insufficient, may be obtained from the petitioner by adopting the procedures laid down by the Rules of the High Court 1980.
The learned judge in this case declined to follow that judgment. The learned judge pointed out that Harris Mohd Salleh, supra, was decided solely by reference to Order 18 r 19 of the RHC 1980.
We have no reason to disagree with the learned judge on the facts of this case. However, in our view, whether or not insufficient particulars may warrant the striking out of an election petition depends on the seriousness of the omission and the consequential effects on the petition. It is to be decided according to the peculiar circumstances of each case.
In this appeal, all the three grounds of objections are premised on the failure to satisfy the requirements of the provisions of s 4(1)(b) of the Rules, except that in the third objection, that rule was to be read with s 32(b) of the Act.
Rule 4(1)(b) provides:
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4. |
(1) |
an election petition shall contain the following statements:
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The learned judge held that under the rule it is a mandatory requirement that a petition must state not only the facts but also the grounds relied on to sustain the prayer. Failure to do so would render the petition defective. He referred to Dr Patau Rubis, supra, Devan Nair, supra, Chong Thian Van, supra, Kua Kia Soong and Wan Daud, supra.
We have no reason to disagree with the learned judge on this point.
The learned judge then dealt with ground A. Considering ground A and the particulars provided in support thereto and the relevant provisions of the law relied on (which according to the learned judge were s 24B(1), (4), (6) and (7) of the Act), the learned judge concluded that the particulars refer to acts committed prior to the campaign period whereas the relevant section relied on refers to acts committed "during the campaign period". The learned judge said:
In Wan Daud Wan Jusoh, supra, at p 388 paragraph F left. Wan Yahya J (later SCJ) held that a petition under rule 4 must not only narrate the facts complained of but must relate or associate the complaints with the provision of election laws the respondent is alleged to have transgressed.
My perusal of ground A leads me to the conclusion that the facts relied on by the petitioner do not fall within the ambit of s 24B(1), (4), (6), (7) and (10) and so the question of the alleged transgression of the provisions of law is non-existent. The facts stated in ground A are insufficient to sustain the prayers sought, as the election laws alleged to have been contravened have no nexus with the facts alleged. Since the facts do not relate or associate the complaints with the provision of election laws alleged to have been transgressed, there is undoubtedly a failure to comply with rule 4(1)(b).
In my view, the petitioner's reliance on ss 24B and 32(b) and (c) is therefore clearly untenable.
We agree with him.
As regards grounds B, C, D and E, the learned judge found that none of the grounds stated the particular provision of s 32 which the petitioner had relied upon to avoid the election. The learned judge held that the failure was fatal. The learned judge continued:
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However, even assuming for a moment that the petitioner is indeed relying on s 32(b), I am of the view that the petitioner should have set out facts complying with the twin requirements of s 32(b) so as to have a cause of action sufficient to sustain the prayers sought. The petitioner's omission, to specifically state that the conduct of the election has affected the result of the election, constitutes a missing link in the material portion of the cause of action. Hence, even if the petitioner's allegations of fact were proved, that would still be insufficient to come within the twin requirements of s 32(b) to sustain the prayers sought. |
The learned judge referred to a number of authorities to support his view. We do not think that we have to discuss them. It is sufficient merely to say that s 32(b) is too clear for anyone to have any doubt that the election of a candidate may only be declared to be void on any one of the grounds provided therein.
To avoid the election on ground (b) i.e. of non-compliance with the relevant law, it must be proved that there was not only non-compliance but also that such non-compliance had affected the result of the election.
The learned judge said:
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The petitioner's mere allegations of fact in grounds B, C, D and E without also stating that as a result of non-compliance with the laws relating to the conduct of elections, the result of the election has been affected, have fallen short of the twin requirements of s 32(b). Efficacy must be given to the words "facts" and "grounds" in rule 4(1)(b) and a nexus shown between them. In absence of one or the other, there would be no facts sufficient to formulate a cause of action to sustain the prayers sought. |
The learned judge held that in respect of the four grounds the petitioner had failed to comply with the provisions of s 32(b) read with rule 4(1)(b).
We agree with the learned judge.
Regarding grounds B, C and D) as an additional ground, the learned judge said that the facts stated therein were facts alleged to have been done by the second respondent (the returning officer). However, the learned judge pointed out that the relevant law, i.e. reg 24(1)(c) for ground B, reg 23(12)(b)(ii) for ground C and reg 25A(1) and (2) for ground D refer to acts of the presiding officer ("Ketua Tempat Mengundi") whose function is different from that of the returning officer. He concluded that the provisions of the law relied upon in each of these three grounds do nor relate to the returning officer, thereby rendering the grounds defective and a failure to comply with rule 4(1)(b).
Thus, the learned judge held that on the facts pleaded by the petitioner, the prayers sought could not be legally sustained.
We agree with his conclusion for the reasons given by him. We are also of the view that the learned election judge was right in striking out the petition.
We would dismiss the appeal with costs and order that the deposit be paid out to the respondents to account of their taxed costs and confirm the orders of the learned judge.
Judgment below
H.B. Low J
I. THE PETITION
This election petition (the petition) concerns the Bukit Bintang Parliamentary constituency where the first respondent was returned with a majority of 304 votes in the general elections (the election) held on March 21, 2004 (polling day).
The petition contains primarily two prayers, viz to declare that:
the election was void; and
the First respondent was not duly elected or ought not to have been returned (paragraph (i) and (ii) at p 17 of the petition).
Both these prayers are based on s 35(a) and (b) of the Election Offences Act 1954.
Unless the context otherwise requires, a reference hereinafter to a section is a reference to that section in the Election Offences Act 1954 (the Act), a reference to a rule is a reference to that rule in the Election Petition Rules 1954 (the Rules) and a reference to a regulation is a reference to that regulation in the Elections (Conduct of Elections) Regulations 1981 (the Regulations).
II. GROUNDS OF PETITION
The petition sets out five grounds viz:
The first respondent carried out election campaign in contravention of s 24B(1), (4), (6), (7) and (10) and s 32(b) and (c) [ground A at pp 4-6 of the petition];
The second respondent failed to comply with the procedure at the completion of poll in contravention of reg 24(1)(c) [ground B at pp 6-8 of the petition];
The second respondent failed to comply with the procedure after the counting of votes in contravention of reg 25(12)(b)(ii) [ground C at pp 8-11 of the petition];
The second respondent failed to comply with the procedure prescribed in reg 25A(1) and (2) [ground D at pp 12-15 of the petition]; and
The second respondent took into account rejected ballot papers and spoilt ballot papers during the recount in contravention of reg 25D(5B) [ground E at pp 15 and 16 of the petition]
III. PRELIMINARY OBJECTIONS
In raising preliminary objections, learned senior federal counsel Mr. Amarjeet Singh assisted by Miss Narimah Maurice and Miss Anita Mary Fernandez for the returning officer and the Election Commission, viz, the second and the third respondents respectively, contended that the petition has not satisfied the mandatory requirements of:
rule 4(1)(b) as there are no facts, or insufficient facts and there are no grounds to sustain the prayers; and
rule 4(1)(b) read with s 32(b), as the petition lacks facts and grounds contained in s 32(b) viz non-compliance with written law relating to the conduct of elections ("election laws") and such non-compliance had affected the result of the election.
They submitted that the jurisdiction of an election judge is conferred by Article 118 of the Federal Constitution (Article 118) as a special kind of jurisdiction: Tengku Korish v Mohamed Jusoh [1970] 1 MLJ 6; Patau Rubis v Patrick Uren [1984] 1 CLJ 51; Dr Lee Chong Meng v Abdul Rahman, Returning Officer [2000] 6 MLJ 98; Joseph Theberge v Philippe Laudry [1876] 2 AC 102, PC; NP Ponnuswami v The Returning Officer, Namakkal [1952] SCR 218, SC, India; and Harcharan Singh v Mohinder Singh AIR 1968 1500, were cited.
They argued that the facts stated in ground A are not sufficient to sustain the prayers sought; and that grounds B, C, D and E did not state under which provision of s 32 the election was being avoided; and that even ifs 32(b) were relied upon by the petitioner, there were no facts showing that the non-compliance therewith has affected the result of the election.
They then stressed that the facts stated in grounds B, C and D are acts alleged to be done by the second respondent i.e. the returning officer but the clear words of the specific law relied on, viz reg 24(1)(c) for ground B, reg 25(12)(b)(ii) for ground C, and reg 25A(1) and (2) for ground D refer to another legal person i.e. the presiding officer (Ketua Tempat Mengundi) whose function is different from that of the returning officer, as a result of which there was a failure to comply with rule 4(1)(b).
In respect of ground E, the stand taken for the second and the third respondents was that the petitioner has failed to state how the second respondent's alleged action has affected the result of the election.
They called upon the court to strike out or dismiss the petition as it is defective and support was sought in Devan Nair v Yong Kuan Teik [1967] 1 MLJ 261; Chong Thain Vun v Watson [1968] 1 MLJ 65; Patau Rubis v Patrick Uren, supra; Kua Kia Soong v Mohd Nor Bador [1996] 1 CLJ 429; Wan Daud Wan Jusoh v Mohd Hijau [1988] 2 MLJ 384; Norbert Choong Kai Chong v Mohamed Idris [1980] 1 MLJ 316; Election Petition of Cheah Seng Teik [1958] 24 MLJ 275; Isahak Hamid v Mustapha [1965] 2 MLJ 18; Mohamed Jaafar v Sulaiman [1970] 1 MLJ 18; Muip Tabib v James Wong [1971] 1 MLJ 246; Raja Ahmad Raja Sulaiman v Mohd Daud Jaafar PP 33-5-95 (unreported); and Harris v Gilmour QBD 11 December 2000.
IV. SUBMISSION FOR FIRST RESPONDENT
After the lapse of the dates viz June 5 and 17, 2004 fixed for the respondents' respective counsel to file their submissions, Mr. Karpal Singh, learned counsel for the first respondent, offered no submission. However on July 19, 2004, his firm sent a notice of intention to raise preliminary objections and that notice was received by the court after it was served on the respective learned counsel.
V. CONTENTION FOR PETITIONER
Dato' Muhammad Shafee Abdullah, assisted by Mr. Azhar Azizan Harun and Mr. KT Leow, contended that the petitioner has sufficiently particularized the facts being relied upon for each ground of non-compliance, viz:
Under ground A, the election campaign was in breach of s 24B(1), (4), (6), (7), and (10) and s 32 (b) and (c) and the particulars of supporting facts are in paragraphs 3 and 4(i) to (iii) at pp 4-6 of the petition;
Under ground B, particulars of facts supporting the failure to comply with the procedure prescribed in reg 24(l)(c) are in paragraphs 5 (i) to (ii) at pp 6-8 of the petition;
Under ground C, particulars of facts supporting non-compliance with the procedure prescribed in reg 25(12)(b)(ii) are in paragraphs 7 and 8(i) to (viii) at pp 8-11 of the petition;
Under ground D, particulars of facts supporting non-compliance with the procedure prescribed in reg 25A(1) and (2) are in paragraphs 9 to 12 at pp 12-15 of the petition; and
Under ground E, particulars of facts in contravention of reg 23D(3B) are in paragraphs 13 to 15(ii) at pp 15-16 of the petition.
They added that each person referred to in the five grounds had been named together with their identity card particulars in the petition and fourteen witness' statements of these related persons have been prepared; and the petitioner reserved his rights to give further particulars during the trial of the petition.
Harris Mohd Salleh v Ismail Majin, Returning Officer [2000] 3 MLJ 434 was cited for the contention that insufficient particulars cannot be a good reason for striking out the petition as the particulars, if insufficient, may be obtained from the petitioner by adopting the procedures laid down in the Rules of the High Court 1980.
In respect of the failure to comply with rule 4(1)(b) read with s 32(b), it was submitted for the petitioner that on the basis of Abdul Hamed Mamat v Baharudin Mohd [1993] 1 AMR 1, the court could still declare the election void as it was not conducted in accordance with the law, in that there were serious irregularities, such as the failure to prepare a statement of ballot papers in Form 13, and the failure to allow the signing of Form 13, and to provide Form 14 to the petitioner's election agents at various polling stations, and that there were instances when the petitioner's election agents were requested to leave the polling booths without witnessing the presiding officer putting the ballot papers in to the ballot box and also not allowing the petitioner's election agents to sign the security stickers when the agents requested to do so.
In addition, they stressed that during the recount, the presiding officer had opened a ballot box which did not contain any ballot paper but instead contained envelopes, plastic papers and banners of the first respondent, and that ballot papers found in a wooden box, which was not in a proper ballot box, were taken into account during the recount.
They canvassed that the poll is vitiated if any ballot box used at that place is in any way tampered with, relying on Halsbury's Laws of India, 2003, vol 16, "Elections", paragraph 125.047 p 23; Re Tanjong Puteri Johore State Election Petition [1988] 2 MLJ 111 and Harris Mohd Salleh, supra.
It was also argued that there is no need for proof, let alone to plead, that the serious irregularities had affected the election results, and the election court must, decide on the entire evidence, citing in support Re Kensington North Parliamentary Election [1960] 2 All ER 150.
They dismissed as misconceived the second and the third respondents' submission that the acts complained of in grounds B, C and D relate to the acts of the presiding officer and not those of the returning officer, as the presiding officers are appointed by the returning officer pursuant to reg 12(1), while the returning officer is the one responsible for the counting of the votes and to declare elected the candidate with the greatest number of votes.
VI. DECISION OF THE COURT
1. Authorities cited for petitioner
The enormous efforts expended in the submission and citation of authorities by the petitioner's learned counsel would merit my consideration in order to arrive at a conclusion on the applicability and support that may be garnered therefrom.
In Harris, supra, Muhammad Kamil Awang J (as he then was) held, inter alia, that insufficient particulars in a petition cannot be a good reason for striking out the petition under Order 18 r 19 of the Rules of the High Court 1980.
Harris, supra, was decided solely by reference to Order 18 r 19 but, as shall be seen later in my judgment, the jurisdiction of an election court is conferred by Article 118, and not by the Courts of Judicature Act 1964 nor the rules made thereunder i.e. the Rules of the High Court 1980, except in certain instances which are not relevant to the consideration and determination of the matter before me. Hence, with the utmost respect, I decline to follow that decision nor am I bound by it.
Wan Yahya J (later SCJ) in Re Tanjong Puteri, supra, referred to s 37 of the Representation of the People Act 1949 (s 37 of England) as applied by Lord Denning CA in Morgan v Simpson [1974] 1 All ER 241 and concluded at p 113E & F, left, that s 37 of England is almost identical with our present s 32(b) and that the court would declare an election invalid if the irregularities arising from the management of the election are of such a nature as to convince the court that it was not conducted substantially in accordance with election laws, irrespective of whether the irregularities complained of have affected the result of the election or not.
In Abdul Hamed, supra, Ahmad Fairuz J (now CJ Malaysia) followed Re Tanjong Puteri, supra, and Morgan, supra, and held that as long as it was clear to the court that there was non-compliance with election laws, it is not necessary to prove that the non-compliance affected the election result.
Re Tanjong Puteri, supra; and Abdul Hamed, supra, were followed by Muhammad Kamil J (as he then was) in Harris Mohd Salleh v Ismail Majin, Returning Officer [2001] 3 MLJ 433.
The aforesaid three High Court judgments in Re Tanjong Puteri, supra; Abdul Hamed, supra, and Harris [2001] supra, have followed Morgan, supra, where Lord Denning MR considered s 37(1) of England which merits reproduction as follows:
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37. |
(1) |
No local government election shall be declared invalid by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the local election rules if it appears to the tribunal having cognizance of the question that the election was so conducted as to be substantially in accordance with the law as to elections and that the act or omission did not affect its result. |
The negative expression in s 37(1) of England was transformed by Lord Denning CA in Morgan, supra, into the positive as follows:
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A local government election shall be declared invalid (by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the local elections rules) if it appears to the tribunal having cognizance of the question that the election was not so conducted as to be substantially in accordance with the law as to elections or that the act or omission did affect the result. |
Hence, Morgan, supra, and the three aforesaid High Court judgments must be construed in that light.
On the other hand, our s 32(b) is expressed in the positive and the twin requirements were expressly enacted as the word used is "and", as demonstrated below:
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32. |
The election of a candidate at any election shall be declared to be void on an election petition on any of the following grounds only which may be proved to the satisfaction of the Election Judge:
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Next, in relation to the petitioner's submission pertaining to the tampering of ballot boxes, a careful consideration of the petition leads me to the conclusion that there was no specific allegation to that effect, nor was there any allegation touching on the particular ballot box that has been tampered with.
However, even if I have accepted the allegation of tampering, such allegation would only affect the ballot box tampered with, as opposed to all the ballot boxes in the election. I am unable to find any allegation in the petition pertaining to the specific number of votes in the ballot box which was alleged to have been tampered with.
I am mindful of Re Kensington, supra, in which the English election court held, inter alia, that in determining whether a parliamentary election was so conducted as to be substantially in accordance with election laws and whether an act or omission affected its result, the court would decide the questions on the evidence as a whole.
In my view, the hearing of the evidence as a whole would only be necessary if the twin requirements under our s 32(b) are supported by facts which should have been clearly stated in the petition in order to achieve a complete cause of action, but that did not appear to have been done in the petition.
I therefore hold that the authorities cited for the petitioner are of no assistance to him, and consequently I am unable to sustain the submission for the petitioner.
2. Declaring an election void
An election can only be declared void on any of the grounds expressly specified under s 32, wherein the clear expression, to wit, "any of the following grounds only" would not permit any other ground to be relied upon for the purpose of declaring an election void.
3. Practice, procedure and jurisdiction
The practice and procedure governing the hearing of a petition is regulated by the Act and the Rules contained in the second schedule thereto, while the conduct of elections is regulated by the Regulations.
It is trite law, supported by a plethora of authorities, that the jurisdiction of an election court is not conferred by the Courts of Judicature Act 1964 but by Article 118 which, where relevant, provides that no election to the House of Representatives shall be called into question except by an election petition presented to the High Court having jurisdiction where the election was held.
The rights in relation to a petition under the Act is a special kind of right unknown to the common law or equity and the court which administers it possesses a special kind of jurisdiction. It is a peculiar jurisdiction. The right is not a civil right but a creature of statute or a special law and must be subject to the limitations imposed by it: per Raja Azlan Shah J (now HRH the Sultan of Perak) in Tengku Korish, supra; Theberge v Laudry, supra; Goonesinha v Hon Cl de Kretser [1943] AC 63; Arzu v Arthur [1965] WLR 675; Ponnuswami, supra; and Harcharan Singh v Mohinder Singh, supra.
In Patau Rubis, supra, Charles Ho J (as he then was) applied the principle enunciated in Tengku Korish, supra, and expressed the same view, adding that in exercising this special jurisdiction, the court has the inherent power to strike out petitions which are defective.
In Dr Lee Chong Meng, supra, at p 104 E-H, Augustine Paul J (now JCA) sounded a similar sentiment.
In Devon Nair, supra, the Privy Council through the judgment of Lord Upjohn reaffirmed that this special jurisdiction requires the court to observe the mandatory requirements and strict limitations provided by election laws which may be contrary or opposite to the normal civil jurisdiction, common law or equity (see also Chong Thain Van, supra, per HH Lee J (later CJ, Borneo); Kua Kia Soong, supra, per Abdul Hamid Mohamed J (now FCJ)).
4. Rule 4(1)(b)
This rule provides for the contents and form of a petition and reads:
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4. |
(1) |
An election petition shall contain the following statements: ....
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Under rule 4(1)(b), it is a mandatory requirement that a petition must state not only the facts but also the grounds relied on to sustain the prayer.
That being the case, non-compliance with the mandatory requirements of the Act and the Rules in the drafting and presentation of the petition would render the petition defective: see Dr Patau Rubis, supra, per Charles Ho J (as he then was); Devon Nair, supra, per Lord Upjohn, PC; Chong Thain Van, supra, per HH Lee J (later CJ (Borneo)); Kua Kia Mong, supra, per Abdul Hamid Mohamed J (now FCJ); and Wan Daud, supra per Wan Yahya J.
I shall now consider and determine whether the petition has complied with the mandatory requirements of rule 4(1)(b).
5. Ground A
In ground A, the petitioner states that the first respondent has, by himself or through others acting on his behalf, either directly or indirectly, before the campaign period was announced by the second respondent, carried out election campaign and has thereby committed an election offence as defined in s 24B(10), the particulars of which are:
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Time and Date |
Place |
|||||||
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(a) |
10 pm 12 March 2004 |
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||||||
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(b) |
7.30 am nomination day |
The junction of Jalan Bukit Bintang and Jalan Pudu (near the Federal Territory Police Contingent Hq. Kuala Lumpur) |
A person named Tan Kok Chong (I/C No 560330-06-5217) had on nomination day lodged police report No THSL/007025/04 at the Jalan Bandar (Tun HS Lee) Police Station to that effect.
Pursuant to ground A, the petitioner is relying on s 24B(1), (4), (6), (7) and (10) and s 32(b), supra, and (c) which read as follows:
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24B. |
Election campaign and limitation thereof
[emphasis added] |
Section 32(b) has been reproduced above. Section 32(c) reads:
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32. |
The election of a candidate at any election shall be declared to be void on an election petition on any of the following grounds only which may be proved to the satisfaction of the Election Judge: ....
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Although the petitioner has relied on various subsections of s 24B, I am of the view that the subsections which are relevant to the petitioner's allegations of fact are confined to s 24B(1), (4) and (7), all of which contemplate specific acts that can only be committed "during the campaign period".
"Campaign period" is defined in s 2 as follows:
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"campaign period", in relation to an election, means the period during which any candidate or his election agent is allowed to hold election campaign in the candidate's constituency, being the period commencing from the time the returning officer declares that a poll will be taken in the constituency for which he is appointed and ending on the expiration of the day before polling day. |
In essence, the term "campaign period" refers to a period commencing from the time the returning officer declares that a poll will be taken in the constituency for which he is appointed and ending on the expiration of the day before polling day.
The acts of the first respondent complained of were well before this period and therefore clearly outside the "campaign period" prescribed in s 24B(1), (4) and (7) read with s 2. This is because the period during which the acts complained of were alleged to have taken place on March 12, 2004. and at 7.30 a.m. on nomination day before the presentation of nomination papers and as such were before the time the returning officer declared that a poll would be taken in the constituency on nomination day.
It seems clear to me that s 24B has left open the issue of holding election campaign otherwise than during the campaign period. While it expressly permits the holding of an election campaign during the campaign period, there appears to be no express prohibition against holding an election campaign otherwise than during the campaign period. Further s 24B(1), (4), (6), (7) and (10) made no reference whatsoever to corrupt practice or illegal practice contemplated in s 32(c).
In Wan Daud Wan Jusoh, supra, at p 388 paragraph F left, Wan Yahya J (later SCJ) held that a petition under rule 4 must not only narrate the facts complained of but must relate or associate the complaints with the provision of election laws the respondent is alleged to have transgressed.
My perusal of ground A leads me to the conclusion that the facts relied on by the petitioner do not fall within the ambit of s 24B(1), (4), (6), (7) and (10) and so the question of the alleged transgression of the provisions of law is non-existent. The facts stated in ground A are insufficient to sustain the prayers sought, as the election laws alleged to have been contravened have no nexus with the facts alleged. Since the facts do not relate or associate the complaints with the provision of election laws alleged to have been transgressed, there is undoubtedly a failure to comply with rule 4(1)(b).
In my view, the petitioner's reliance on s 24B and s 32(b) and (c) is therefore clearly untenable.
6. Grounds B, C, D and E
In ground B, the petitioner states that the second respondent, in contravention of reg 24(1)(c), has, when polling and counting of ballot papers had completed, failed to prepare a statement of ballot papers in Form 13 of the first schedule to the Regulations and failed to allow the polling station agent appointed by the Barisan Nasional ("BN") candidate or his election agent to sign Form 13 although the polling station agent had requested to do so, particularised as follows:
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Time and Date |
Agent and Place |
|
|
(a) |
21 March 2004 Polling day 5:00 p.m. |
Polling station and counting agent CHAI KONG LIN in channel (saluran) 3 Razak Mansion 120/00/21 on duty in the National School Sungai Besi, Kuala Lumpur at the commencement of the process of ballot counting. |
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(b) |
21 March 2004 Polling day 5:00 p.m. |
Polling station and counting agent AKOW @ LEE ENG HWA in channel (saluran) 5 Brickfields North 120/00/16 on duty in the Methodists (G) National School, Jalan Sultan Abdul Samad Kuala Lumpur. |
In ground C, the petitioner states that:-
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the second respondent, in contravention of reg 25(12)(b)(ii), has, after the completion of the counting of ballot papers, failed to deliver to the BN candidate, his election agent or counting agent Form 14 which had been executed by the agent there, the particulars of which are as follows:-
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In ground D the petitioner states that the second respondent, in contravention of reg 25A(1) and (2), has, after the completion of the counting of ballot papers, failed to place the valid ballot papers and rejected ballot papers into a package in the presence of the BN candidate, his election agent or counting agent present there, and that the second respondent has failed to allow the BN candidate's counting agent present there to sign on the security sticker affixed to the ballot box, even though the agent has requested to do so, the particulars of which are as follows:-
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Date and Time |
Agent and Place |
|
|
(a) |
Polling day 6:00 p.m. |
Counting agent LIM KIA KEANG in channel (saluran) 1 Medan Imbi 120/00/1400/14 on duty in Dato Abu Bakar National School, Jalan Davis Kuala Lumpur |
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(b) |
Polling day 6:30 p.m. |
Counting agent DARRIELL ENG WAI MEI in channel (saluran) 6 Kampung Loke Yuen 120/00/13 on duty in Bandaraya National Secondary (G) School, Changkat Thambi Dollah Kuala Lumpur |
|
(c) |
Polling day 6:00 p.m. |
Counting agent CHEN NGIAM FOO of channel (saluran) 1 Kampung Semarang 120/00/02 on duty in Jalan Batu National Secondary (B) School, Jalan Raja Laut Kuala Lumpur |
|
(d) |
Polling day 6:30 p.m. |
Counting agent LEOW NGOK MAN in channel 5 Medan Imbi 120/00/14 on duty in Dato Abu Bakar, Jalan Davis Kuala Lumpur. |
The petitioner further states that the second respondent, in contravention of reg 25A(2)(a), has failed to place the valid ballot papers and the rejected valid papers into the ballot boxes and to affix them with security stickers so that nothing else may be put into or taken out of the ballot boxes without breaking the security stickers, the particulars of which are that at about 1.30 p.m on March 22, 2004 i.e. the date of recounting the ballot papers, counting agent of channel (saluran 1) Medan Imbi 120/00/14 on duty in Victoria Institution, Hang Tuah Road, Kuala Lumpur i.e. Vijeya Letchumy Charde Singgaran, upon commencement of the recount, found that one ballot box opened by the presiding officer did not contain ballot papers but instead merely contained things which looked like the third respondent's envelopes, plastic papers, banners and so on.
In ground E, the petitioner states that at the time of the recount, the second respondent in contravention of reg 25D(5B):
|
(1) |
counted ballot papers which were allegedly found in a wooden box which was not the third respondent's ballot box bearing the third respondent's badge and security sticker and that the second respondent has counted ballot papers which should not be counted at the recount because the said ballot papers were highly doubtful; and |
|
(2) |
took into account rejected ballot papers and spoilt ballot papers during the recount, in that the total ballot papers issued by the second respondent for balloting on polling day pursuant to Form SPR 760 Pin 1/90 were 39,935 while those stated in the Gazette PU(B) 171 dated April 12, 2004 were 39,938, showing an increase of three ballot papers after the recount, which should not have been the case. |
Upon a proper perusal of these four grounds, it is my specific finding that none of these grounds had ever stated the particular provision of s 32 which the petitioner had relied upon to avoid the election. This omission is fatal.
In Norbert Choong Kai Chong, supra, nowhere in the petition was it stated that the ground relied on was s 32(b). Harun J (later SCJ) followed Muip, supra, and arrived at the same conclusion.
However, even assuming for a moment that the petitioner is indeed relying on s 32(b), I am of the view that the petitioner should have set out facts complying with the twin requirements of s 32(b) so as to have a cause of action sufficient to sustain the prayers sought.
The petitioner's omission, to specifically state that the conduct of the election has affected the result of the election, constitutes a missing link in the material portion of the cause of action. Hence, even if the petitioner's allegations of fact were proved, that would still be insufficient to come within the twin requirements of s 32(b) to sustain the prayers sought.
It is trite law that the twin requirements in s 32(b) are cumulative and not disjunctive. It was held by Rigby J in Re Election Petition of Cheah Seng Teik, supra, that mere non-compliance with the provisions of such written law is not, by itself, sufficient to avoid the election, because the non-compliance must have affected the result of the election.
The same view was enunciated in Isahak Hamid, supra, at p 191 left, per Ismail Khan J (later CJ Borneo) in Mohamed Jaafar, supra, per MT Chang J (later FJ) at p 19 paragraph C-E right; Muip Tabib, supra, per BTH Lee J (as he then was) said at p 248 paragraph B-C right.
The petitioner's mere allegations of fact in grounds B, C, D and E without also staring that as a result of non-compliance with the laws relating to the conduct of elections, the result of the election has been affected, have fallen short of the twin requirements of s 32(b). Efficacy must be given to the words "facts" and "grounds" in rule 4(l)(b) and a nexus shown between them. In absence of one or the other, there would be no facts sufficient to formulate a cause of action to sustain the prayers sought.
In Muip Tabis, supra BTH Lee referred to Indian authorities which enunciated the principles under s 100(1)(d)(iv) of the Representation of People Act 1951 (which is substantially the same as our s 32(b)) and held there must be a clear alle