Bong

- vs -

Ahmad Nordin

Judgment

Wan Yahya J

1. This is a motion by the petitioners seeking leave of the court to amend their petitions.

2. For the purpose of proceedings herein and this judgment the term ‘petitioners’ refer to Bong Geok Beng in Election Petition No 1/78, Rosnah Kassim in Election Petition No 2/78, Lai Keun Ban in Election Petition No 3/78 and Mohamed Bakar in Election Petition No 4/78; the term first respondent refers to Azizi Mohd Ariffin in all the four cases; and the term second respondent refers to Ahmad Nordin Md Amin in Election Petition No 1/78, Samad Kassim in Election Petition No 2/78, Chong Hon Nyan in Election Petition No 3/78 and Abdul Rashid Othman in Election Petition No 4/78.

3. The petitioners had filed their petitions on 7 September 1978 in which they sought inter alia for an order that the election held on 8 July 1978 be declared null and void and that the declaration forms submitted by them were valid. On 6 November 1978 the petitions were mentioned before this court and the hearing fixed for today. Two days following this the first respondent filed the motions seeking for an order to dismiss the petitions and they were fixed on 2 December 1978. Barely four days before the scheduled hearing the petitioners filed this motion for leave to amend.

4. In their affidavits the petitioners claimed firstly that after the presentation of the petitions in July 1978 they came to know that the date “8 July 1978” appearing in para 1 of the title of the petition and para 4 of the petition is factually incorrect and has been inadvertently inserted and sub-paras 1(a) and 1(b) of the petition are also factually incorrect and inadvertently inserted.

5. At the earlier hearing before this court two matters of law were raised by the parties. The first of which relates to the capacity in which I was sitting to try this case and application and the second relates to the application itself.

6. On the first issue all parties must have been aware that I have fixed not only the hearing of the Election Petition but also the notices of motion by the respondents as well as the applicants to amend on the same date, i.e. 6 December 1978. It has been my intention all along to treat the petitions and all matters or proceedings arising out of them as one case. After all, an Election judge is especially equipped with the powers over and above a High Court judge for the specific purpose of enabling him to deal with election cases. So I do not see any reason why he should not be cloaked with similar powers when hearing any part of the petition, be it interlocutory in nature. Subsection (4) of s 33 of the Election Offences Act, 1954 to my mind, is intended to enable High Court judges to dispose of interlocutory matters speedily when Election judges are not readily available so that justice may not be adversely affected by statutory provisions requiring compliance within a certain time. I see no justification for suggesting that I am sitting here in the capacity and exercising any powers other than those of an Election judge.

7. So much for the first issue. On the second matter, i.e. the motion to amend the petition, parties have quoted numerous authorities, both judicial precedents and statutory. Mr. Karpal Singh for the petitioners relies heavily on the case of Abu Bakar v Mohamed Zain [1967] 1 MLJ 168 wherein Mr. Yong J entertained a motion to amend the Election petition at the late stage where hearing of the petition had already commenced. It was pointed out to me that in that case the learned judge had in fact applied Ord. 28 r 1 and r 12 in determining whether the amendment should be granted. Counsel for the second respondents and the learned Senior Federal Counsel, on the other hand, urged the court not to allow the amendment and they cited numerous cases in support of their arguments. It was also submitted by the learned Senior Federal Counsel that the case of Abu Bakar v Mohamed Zain, supra, was wrongly decided and that since that decision there has been a clear tendency of the courts to apply the provisions of the Election laws strictly. The prerogative of determining the correctness or otherwise of High Court decisions lies with the court above. For the purpose of deciding this issue I shall confine myself only to the question whether that judgment is sufficiently persuasive to move this court into applying it in the present case. I am inclined to believe that amendment under Ord. 28 rr 1 and 12 was considered in that case because the requirements of s 38(2) of the Election Offences Act, 1954 were not raised then. Before this court the effect of this section was taken up and strenuously argued by the learned Senior Federal Counsel. Now sub-s (2) of s 38 of the Election Offences Act reads:

   An election petition presented in due time may, for the purpose of questioning the return or the election upon an allegation of a corrupt or illegal practice, be amended with the leave of a judge of the High Court within the time within which an election petition questioning the return or the election upon that ground may be presented.

8. My understanding of this subsection is that the time-limit for filing an amendment is the same as that for filing the petition itself. It may be argued that, if such is the case, there is no purpose of having this section at all. That argument is not altogether correct. The object of s 38(2) is to allow a petitioner, who has filed his petition earlier than the statutory requirement, as in this case 21 days after the gazetted results, to apply for any amendment to his petition at any time up to the date when the statutory requirement of 21 days ends. To illustrate this point further, in our present case the results were gazetted on 17 August 1978. The petitioner’s right to present his petition therefore is restricted within the period commencing from that date until 21 days afterwards. In this case he filed his petition on 7 September 1978 which means that he has filed it exactly on the last day of that period within which he could file his petition. So his right to amend had ended on that day itself. Had he filed it earlier, say the day immediately after the Gazette, then he would have 20 days within which to amend.

9. The rationale behind this rule is not too difficult to comprehend. The respondent in our Election Petitions have a right to be informed what the charges were against him. Once having been informed of the charges, he has to be given time to collect his evidence, while they are still fresh and available, and prepare his case. An amendment, if allowed at this stage, would involve alteration or addition to the existing charges and even raise new grounds for petitioning. This may well amount to a new petition being filed so that its acceptance by the court would be tantamount to allowing the petitioner to file his petition outside the statutory period of 21 days as prescribed by s 38(1) of the Election Offences Act, 1954. I find support for this contention from the very case cited and relied upon by Mr. Karpal Singh, in particular at page 169 where Yong J said:

   In the present case by allowing the petitioner to amend ... would in effect amount to permitting him to file a fresh petition out of time and thus depriving his opponent of the benefit of the period of limitation under s 38 of the Election Offences Ordinance, 1951 and thereby causing him an injury which cannot be compensated by costs.

10. Another matter to be considered is whether s 38(2) is in its application mandatory. It is noticeable that this subsection of the Election Act is almost identical in nature and purpose as that of r 15 of the Election Rules, 1954. Both pertain to procedure and prescribed time. In the case of Devan Nair v Yong Kuan Teik [1967] 1 MLJ 261, 264 the Privy Council held that the rule was mandatory and the petitioner’s failure to comply with it rendered the proceedings a nullity. Again very much to our point in issue is the case of Tengku Korish v Mohamed Jusoh [1970] 1 MLJ 6 where it was held:

    In view of the peremptory language of s 38(1) of the Act, the petitioners should have filed their petitions within 21 days after the date of publication of the election results in the Gazette and as the petitions in this case were filed before the publication of the results, they must be dismissed.

11. The decision has clearly stood the test of time and has been applied over and over again by my learned brothers Hashim Yeop Sani J in the case of Hugh Siak Meng v Daing lbrahim Othman ; Harun J in the case of Norbert Choong Kai Chong v Mohd Idris Haji lbrahim Election Petition Nos 2 & 3 of 1978. Syed Agil Barakbah J in the case of Othman Haji Mohamed Marzuki v Baharom Haji Bakar Election Petition No 10 of 1978 and by Raja Azlan Shah FJ himself in Yau Sze v Election Commission Election Petition No 1 of 1978.

12. As Lord Upjohn so aptly described in Devan Nair’s case, supra, at page 264, one of the matters considered by their Lordships of the Privy Council in determining whether the rule was mandatory or directory was “the need in an election petition for a speedy determination of the controversy.” Such determination cannot be obtained if amendments are to be freely given. Any right to amend the petition will only give rise to reciprocal right to respondents to amend their motions. A petition cannot be sustained by a trial and error method in court with the petitioner changing course of action whenever confronted by viable opposition. To allow this infringement of mandatory procedure is tantamount to opening a new horizon for “trial and error” litigation which can go on ad infinitum.

13. In a more colloquial language this election trial is like a card game; at the expected time each player has to place his cards on the table so as to determine his position in accordance with the rules of the game. Once the cards are on the table no change of mind is tolerated. If allowed, it will not only prevent proper determination of the game but will precipitate confusion and chaos.

14. For a peaceful and speedy determination of an election petition the rules have to be strictly adhered to and obeyed. Otherwise it will end in the same manner as a game involving the indecisive gambler.

15. As the present application is not made within the prescribed period under s 28(2) of the Election Offences Act, 1954 I have to disallow it. I accordingly refuse leave of motion to amend by the petitioner and rule that this hearing proceeds on the original petition as filed.

Cases

Abu Bakar v Mohamed Zain [1967] 1 MLJ 168; Devan Nair v Yong Kuan Teik [1967] 1 MLJ 261; Tengku Korsiah v Mohamed bin Jusoh [1970] 1 MLJ 6; Hugh Siak Meng v Daing Ibrahim Othman Norbert Choong kai Chong v Mohamed Idris Haji Ibrahim, Election Petition Nos 2 & 3 of 1978; Othman Haji Mohamed Marzuki v Baharom Haji Bakar, Election Petition No 10 of 1978; Yau Sze v Election Commission, Election Petition No 1 of 1978.

Legislations

Election (Conduct of Elections) Regulations, 1959: Reg. 7, Reg. 10, Reg. 12

Election Offences Act, 1954: s. 32, s. 34.

Representation

Karpal Singh for the petitioners.

Chan Yew How for the first respondent.

Datuk Mohamed Yusuf Abdul Rashid (Senior Federal Counsel) for the second respondent.