– P Ramakrishnan
The Malaysian Insider
October 12, 2013

Yes, the Election Courts are worse than the Election Commission (EC)! The recent disappointing decisions of the Election Courts have proved that there is no hope for parliamentary democracy even in the judiciary.

If the Barisan Nasional (BN) is a great let-down for democracy, the Election Commission is an even greater let-down for the electoral process. But shockingly, the Election Courts comparatively are far worse in that they cannot dispense justice to the aggrieved party even if there was a glaring injustice.

It is clear as daylight that the BN abused the electoral process by openly bribing voters through its many projects launched especially during the period leading up to the GE13 (including the campaign period itself) by dishing out goodies and cash inducements to win over the voters. Billions of ringgit in cash or projects was dispensed freely giving an unfair disadvantage to the Opposition who were cash-strapped.

Electoral process perverted

Voters were given bonus slips with the promise of cash payments if their respective BN candidates were elected. In this manner, those aligned with the BN perverted the electoral process. And there was evidence that this was so because the Aliran team has evidence to prove that this happened. On 10-12 May, people who had queued up for payments at a shop lot off Jalan Sungai Dua in Penang told Aliran that cash was given out to those who came with the bonus slips. Payments ranged from RM120 to RM200. What was surprising was that this took place barely 100 metres from a police beat station. Conveniently, the police personnel were out on their ‘ronda’ at that time!

By all accounts, this was the dirtiest election ever. State apparatus was fully utilised to promote the BN cause. Money from the national coffers was lavishly used to influence voting patterns in favour of the BN.

The Election Commission, tasked with the duty to conduct free and fair elections, did not live up to that responsibility. It failed to maintain a clean and honest electoral roll to ensure fairness in the voting process. The indelible ink that was meant to be used to prevent fraudulent voting turned out to be a farce and a fiasco, thanks to the EC.

The EC never commented on the one-sided media coverage or the twisted lies and false propaganda trotted out by the electronic media. It maintained its incredible silence over the BN’s excessive expenditure, sumptuous feasts with free-flowing beer, and cash hand-outs.

The election corruption was so rampant that it was not possible to overlook or entirely ignore this electoral offence. It is a fact that that this kind of inducement must have swung votes in favour of the BN, especially in rural and remote constituencies where poverty-stricken residents gratefully cast their votes for the BN.

It is because of these many wrongs that the losing Pakatan Rakyat candidates and supporters filed petitions in the specially set up Election Courts seeking the courts’ assistance for justice. In an environment where everything is stacked against the ordinary citizens, courts are looked upon as dispensers of justice, the only hope for some remedy.

However, this hope was so cruelly dashed.

These litigants went to court fully believing that there were triable issues involved for the courts to take a serious look into the matter. But their petitions were dismissed – by what the lay person may perceive to be on flimsy procedural grounds.

Petitions dismissed on technical grounds

They were dismissed because they had failed to comply with several regulations in accordance with Rule 9 of the Election Petition Rules 1954 and for failing to satisfy regulation 15 of the Election Petition Rules 1954. In one instance, it was quoted that the petitioner had failed to serve the documents personally.

Justice is not served when the petitions are dismissed on technical grounds. It is preposterous that a litigant’s right to justice should be dismissed because of the failings of his or her counsel. The lawyer concerned ought to know how to file a petition but if for some reason that petition is defective, why deprive the litigant from having the case heard?

Is it too difficult – isn’t it in the inherent power of the court? – to order the petition to be put right so that the substantive issues in the petition could be addressed by the court? Justice is not hinged on technicalities but on the question of right and wrong.

Forfeiting the litigant’s right to be heard is a grave injustice. In doing so, isn’t the court perpetuating a wrong and upholding an injustice? This is morally repulsive!

It is incredulous that the petitions for Machang and Selising constituencies were struck off apparently on grounds that could not be sustained. It is patently wrong to observe that the petitions were not personally served on the respondents by the petitioner himself. It is without merit.

Any judge before elevation to the bench must have been a practicing lawyer. Surely, the judge must know that the filing of the case and the serving of documents to the respondents are entirely the responsibility of the lawyer’s firm – not that of the petitioner.

In such a case where justice has to be done to the litigant, the High Court should use its discretion by referring the matter to the Federal Court. This would allow real justice to be done to the petitioner and would be fair to the public.

Apart from this, the Election Courts have also awarded exorbitant costs to the respondents. The costs awarded ranged from RM30,000 to RM200,000! Many litigants who went to court in good faith would find these awards rather excessive.

Genuine concerns for free and fair elections

Ordinary voters who go to court out of a genuine concern for free and fair elections are not rich individuals. They are not in a position to fork out this kind of money for acting in the interest of society at large. In any case why award costs to the returning officer and the Election Commission?

Election corruption and fraudulent voting are serious issues that undermine free and fair elections. This must be addressed soberly; sincerely and honestly so that such abuses can be curbed. For this, senior judges from the bench should be specially appointed to hear these petitions so that they can differentiate the chaff from the grain.

So far, the Election Court rulings have left many frustrated and disillusioned with the courts.

Let us be reminded by this observation that can only come through wisdom:

“The good judge will always endeavour to maintain that justice in his court must not only be done but must be seen to be done. The judge can be as impartial or unbiased as can be but if any party, especially the losing party, should leave his court with the impression that the trial was one-sided then justice has failed.” (Justice C H Chan, ‘Judging the judges’).