Judgment

Arulanandom J

1. This is a petition brought under the Election Offences Act, 1954 (Revised-1969) (Act 5) to declare the election of Ooi Ean Kwong the first respondent in this Petition to the State Assembly seat of Kampung Kolam at the last State Elections in this State null and void and that the declaration by the returning officer, the second respondent, of the first respondent as a duly elected member of the State Constituency of Kampung Kolam invalid and for further prayers for consequential reliefs.

2. The history of the case is very simple and well-known. The petitioner filed his nomination papers under the Election (Conduct of Elections) Regulations, 1959. His nomination papers were rejected by the Returning Officer under reg 7 para (4) of the said Regulations. For purposes of clarity I shall read the Regulation which empowers the Returning Officer to decide whether any objection to a nomination paper is valid or not. Regulation 7 para (1) reads as follows:–

   7.

   (1)

   Objection may be made to a nomination paper by any person whose name appears in the electoral rolls for the constituency and by any candidate for the constituency on all or any of the following grounds but on no other ground, namely– (a) that the description of the candidate is insufficient to identify that candidate;   (b) that the nomination paper does not comply with or was not delivered in accordance with the provisions of these Regulations;  (c) that it is apparent from the contents of the nomination paper that the candidate is not capable of being elected a member of the Dewan Ra’ayat or a State Legislative Assembly; (d) that the provisions of para (1) of reg 5 of these Regulations have not been observed; (e) that the candidate is disqualified from being a member under the provisions of the Constitution of Malaysia in the case of an election to the Dewan Ra’ayat or of the Constitution of the State concerned in the case of an election to a State Legislative Assembly.

3. Paragraph (1) of reg 5 deals with the deposits to be made by candidates and reads as follows:–

   5.

   (1)

   A candidate, or some person on his behalf, shall deposit or cause to be deposited with the returning officer, or with a Government department authorised by the returning officer in that behalf between the date of the issue of the writ referred to in reg 3 of these Regulations and twelve noon on the day of nomination, the sum of five hundred dollars in legal tender in the case of an election to the Dewan Ra’ayat or the sum of two hundred and fifty dollars in legal tender in the case of an election to a State Legislative Assembly. On receipt of legal tender from a candidate the returning officer shall proceed in accordance with the current Government financial regulations. Where a deposit of the said legal tender is made with a Government department authorised by the returning officer, the candidate shall between ten o’clock in the forenoon and twelve noon on the day of nomination, produce to the returning officer a deposit receipt. In default of such deposit being so made to the returning officer or such deposit receipt from a Government department being produced, the candidate shall be deemed to have withdrawn his candidature under reg 9 of these Regulations. The sum so paid by the candidate shall be dealt with in accordance with the provisions of these Regulations.

4. Regulation 7 paras (2), (3), (4) and (5) read as follows:–

   	(2)	No objection to a nomination paper shall be allowed unless it is made to the returning officer between noon and one-thirty o’clock in the afternoon on the day of nomination.
   	(3)	Every objection shall be in writing signed by the objector and shall specify the ground of objection. The returning officer may himself lodge on (sic) objection on any of the grounds set out in para (1) of this regulation.
   	(4)	The returning officer shall with the least possible delay after one-thirty o’clock in the afternoon on the day of nomination decide on the validity of every objection and inform the candidate concerned or his proposer or seconder named in the nomination paper provided for in para (2) of reg 4 of these Regulations of his decision and the grounds thereof.
   	(5)	The decision of the returning officer shall be final and conclusive for the purposes of the election in respect of which the proceedings are being held, and shall not be called in question in any court: Provided that any person aggrieved by the decision of the returning officer may present an election petition in respect thereof on the grounds set out in para (b) of s 32 of the Election Offences Ordinance, 1954, and the provisions of the said Ordinance shall take effect accordingly.

5. In this case objections were taken to the nomination papers filed by the petitioner by the first respondent and another. The objections were in writing and complied with the rules. The objections were that the name of the nominee was omitted in the nomination papers and that the said nomination papers were therefore incomplete and should be rejected as null and void. The second objection was filed by a person named Mah Cheok Tat which reads as follows: “I found that the nomination paper of Khoo Kay Por has missed his name in the column ‘signed by the said nominee’.”

6. On the strength of these objections the Returning Officer rejected the petitioner’s nomination papers. The petitioner is now before this court asking the court to rule that the nomination papers were wrongly rejected.

7. The issue before the court is very simple. It is admitted by the petitioner that in the last line which says “signed by the said nominee” he has not written his name in full after that in the space provided but he has gone on to sign his name in full. So before I decide on the issue as to whether the rejection of the nomination papers by the Returning Officer was correct I must consider the objections. The first objection was that the name of the nominee was omitted in the nomination papers which I cannot accept because the name of the nominee appears at least in three places in the nomination papers as “Khoo Kay Por, Penang”. So “Khoo Kay Por” is undoubtedly the name of the nominee and it cannot be argued that his name has been omitted. If the name of the candidate has indeed been omitted from the papers and nobody knew who the candidate who was going to stand for the election was, then, an objection on that ground would have been valid. But that is not the case here. The second objection was that the candidate’s name was not inserted in the particular space. If by that omission, there resulted an ambiguity or uncertainty as to who “the said nominee” was there would have been some merit in the objection. But in this case there was no ambiguity or uncertainty as to who “the said nominee” was. Hence I see no substance in the objections.

8. Now the law on what a nomination paper should contain is contained in reg 4 of the Election (Conduct of Elections) Regulations, 1959. So far as the nomination is concerned it reads as follows:–

   4.	(1)	Any person eligible for election as a member of the Dewan Ra’ayat, or of the Legislative Assembly of a State, in accordance with the provisions of the Constitution of Malaysia, or the Constitution of a State, as the case may be, may be nominated as a candidate for election. The nomination of any other person shall be void.
   	(2)	Candidates shall be nominated by means of nomination papers submitted in triplicate. Each nomination paper shall be signed by a proposer and a seconder respectively and by not less than four other persons all six or more of whose names must appear in the electoral rolls for the constituency for which the candidate seeks election. The written consent of the candidate must be endorsed on each nomination paper which shall be as set out in Form 3 in the First Schedule to these Regulations.
   	(3)	Every candidate shall at the time of his nomination and in the manner described in para (2) of reg 6 of these Regulations deliver to the returning officer a statutory declaration of his qualifications made and subscribed by him as set out in Form 4 in the First Schedule to these Regulations. If such statutory declaration is not delivered as aforesaid, the nomination of such candidate shall be deemed to be void and the nomination papers shall not be accepted by the returning officer.
   	(4)	The returning officer shall, at any reasonable time between the date of the notice of the writ referred to in reg 3 of these Regulations and twelve noon on the day of nomination, supply free of charge forms of nomination papers and statutory declarations to any person requiring the same.

9. Now, in dealing with these questions, the court must always distinguish between form and substance. What is the substance of reg 4 of these Regulations. First, that the candidate must be one who is eligible under the Constitution of the State to be nominated as a candidate for election. Then, the candidate must be nominated by means of nomination papers submitted in triplicate and in this nomination paper produced in this court (P1) as the nomination paper of the petitioner I see the name of the candidate appearing in three places. Then the nomination papers shall be signed by a proposer and a seconder respectively and by not less than four other persons all six or more of whose names must appear in the electoral rolls for the constituency for which the candidate seeks election. I see the name of a proposer and a seconder, the number of the polling district and their numbers in the electoral rolls for the Constituency. I see eight other names supporting the candidate giving the numbers of the polling district and their numbers in the electoral rolls for the Constituency. Again the fact that no objection has been taken on any other grounds gives me the right to hold that they are correct and in compliance with law. The consent of the candidate must be endorsed on each nomination paper which has been done in this case. The other rule says that a statutory declaration must be filed stating that the candidate is eligible for election and is qualified and the fact that no objection has been taken to the statutory declaration filed by him can only mean that the statutory declaration is in order.

10. Now as I said earlier one must distinguish between form and substance. Forms do not enunciate substantive law but are laid out for convenience for the purpose of recital of particulars to enable the proper authorities who are charged with the responsibility of examining particulars to ensure that rules and regulations have been complied with before they can take action or arrive at a decision. Forms are not sacrosanct. In this case, as far as I can see, all the requirements of substantive law required by reg 4 have been complied with and the law has not be contravened. It is admitted that the candidate has not written his name after where it says “Signed by the nominee” but he has signed the full name in the space provided for his signature. Now is the fact that the petitioner’s name is omitted in that particular space calculated to mislead or has any substantial effect.

11. The manner of dealing with forms is clearly spelt out in our Interpretation Act, 1967 (No 23 of 1967) which replaces the Interpretation and General Clauses Ordinance, 1948. Section 62 of the Act of 1967 reads as follows:–

    Any written law prescribing a form shall be deemed to provide that an instrument or other document purporting to be in that form shall not be invalidated by reason of any deviation from the form if the deviation has no substantial effect and is not calculated to mislead.

12. Under this formula for interpretation of the effect of deviation from forms provided by Regulation no one can argue that the omission of the candidate to fill up his name in one space as in this case can possibly have any substantial effect or is calculated to mislead. I hold that the omission has no substantial effect and is not calculated to mislead. Every requirement of reg 4 has been met in the nomination paper. I am fortified in my decision by the decision of my learned brother Syed Othman J (as he then was) in Abdul Karim v Mohamed Taib [1969] 2 MLJ 72 which has been cited by all parties and everybody is familiar with it. The issue before this court is identical with the issue in that case. I have read my learned brother’s judgment carefully and I see no reason not to concur with it and not to support his ratio decidendi.

13. Earlier at the commencement of this hearing a preliminary objection was raised by counsel for the first respondent. The objection was that the regulations relating to security for costs as required under the Election Petition Rules 1954 have not been complied with in that the petitioner had paid one deposit of $500 into court and not to the proper officer as required by the Rules and that the second deposit of $500 was paid although to the proper officer but out of time. Counsel submitted that the petition should be dismissed for this reason.

14. Counsel for the second respondent conceded to the court that under the Rules no person had been appointed by the Chief Justice to act as a proper officer to receive the deposit. Hence it is abundantly clear that it was not the fault of the petitioner that the first deposit was made to court as there was not in existence a person nominated by the Chief Justice to be a proper officer to receive his deposit for security for costs. As a result of that omission to appoint a person the petitioner had no alternative but to try and pay to some other government officer so that the money would go to government revenue and be available to pay the costs of the respondent if the petition was dismissed. In interpreting the rules of this nature I would follow the proposition of Lord Denning in the case of Nothman v Barnet London Borough Council [1978] 1 WLR 200.

    The literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as the ‘purposive approach.’ He said so in Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850, 899; and it was recommended by Sir David Renton and his colleagues in their valuable report on the Preparation of Legislation (1975) Cmnd 6053, pp 135/148. In all cases now in the interpretation of statues we adopt such a construction as will ‘promote the general legislative purpose’ underlying the provision. It is no longer necessary for the judges to wring their hands and say: ‘There is nothing we can do about it.’ Whenever the strict interpretation of a statue gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it – by reading words in, if necessary – so as to do what Parliament would have done, had they had the situation in mind.

15. In this case the petitioner was ready and willing to comply with all the requirements of the Election Petition Rules, 1954 but there was no proper officer appointed under the Rules to receive the deposit. Faced with this situation and cognizant of the time factor involved, he paid the deposit into court i.e. into government revenue. This is where the money would have gone anyhow, even if paid to the proper officer. The Legislature has made these Rules to protect respondents in cases where petitioners bring charges frivolous or otherwise which do not stand up in court and then are unable to compensate respondents who have incurred costs. The purpose of the law is to compel the petitioner to provide security for costs which in this case he has definitely done. The security has been deposited with the government and in case the petition is dismissed there is no danger that the respondent will not receive his costs.

16. I therefore overruled the objection. Counsel gave notice of appeal against my ruling and requested an adjournment to enable him to appeal to the Federal Court as he submitted that my ruling on the preliminary objection had in fact been a dismissal of his application for the petition to be struck out. He further stated that as at the conclusion of the hearing of this petition any order the court made would be a final order and not be appealable against he would not have the opportunity of bringing his appeal against my interlocutory order before the Federal Court. The court refused the application for adjournment, firstly because there was no merit whatsoever in the preliminary objection, and secondly, if adjournments were granted for counsel to appeal on every ruling on a preliminary objection or objection during a trial, then, every hearing or trial can be frustrated and become incapable of continuing to a conclusion whereby there incapable of continuing to a conclusion whereby there can be adjudication on the main issues before the court.

17. As I stated earlier the issue before the court is very simple and not a complicated one. And for the reasons stated above I find that the nomination papers are valid and were wrongly rejected by the returning officer and therefore declare that the candidate Ooi Ean Kwong the first respondent was not duly elected at the said election and that the declaration of the returning officer that the said Ooi Ean Kwong was the duly elected member for the Penang State Constituency of Kampung Kolam is invalid.

18. I further declare that the nomination forms submitted by the Petitioner Khoo Kay Por were valid and should not have been rejected by the returning officer.

19. I further order that the returning officer do conduct a fresh election in accordance with the laws for the election of a representative member in the Constituency of Kampung Kolam for the State Legislative Assembly of Penang on the basis of the nomination forms submitted to him on 21 June 1978 and which have been duly or are herein declared to be valid.

20. I further order that the returning officer do declare that the candidate obtaining the largest number of valid votes in such fresh poll as the person duly elected to the State Assembly of Penang for the Constituency of Kampung Kolam.

21. I declare that the election holden on 8 July 1978 for the State Constituency of Kampung Kolam was void and of no effect.

22. Under s 36 of the Election Offences Act, 1954 (Revised-1969) (Act 5), I am required to certify to the State Authority that the election the subject of the Petition is void and I shall do so. I must also certify to the State Authority under s 37 of the Election Offences Act, 1954 (Revised-1969) (Act 5) that I have found no evidence of corruption or malpractice which I shall do.

23. I order that the respondents pay the petitioner costs of the Petition.

24. Counsel for first respondent requested leave of the court to file an appeal against the court’s ruling on the preliminary objection. In view of the fact that such leave would be inconsistent with finality of the Order made herein the court refused leave to appeal.  

Cases

Abdul Karim v Mohamed Taib [1969] 2 MLJ 72; Nothman v Barnet London Borough Council [1978] 1 WL R 200

Legislations

Election (Conduct of Elections) Regulations, 1959: Reg. 4, Reg. 5, Reg. 7

Election Offences Act, 1954: s. 36, s.37

Interpretation Act, 1967: s. 62.  

Representations

OL Phipps (K Vijayanathan with him) for the petitioner.

Karpal Singh (SP Annamalai with him) for the first respondent.

Stanley Isaacs (Federal Counsel) for the second respondent.