|Laman Webantu KM2A1: 4692 File Size: 51.9 Kb *|
The Likas Judgement
By Hakim Muhammad Kamil
11/6/2001 9:22 am Mon
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KOTA KINABALU
ELECTION PETITION NO. K.5 OF 1999
IN THE MATTER OF THE ELECTION OFFENCES ACT 1954 (ACT 5)
AND IN THE MATTER OF THE SABAH STATE ELECTION FOR THE
CONSTITUENCY OF N.19 LIKAS HOLDEN ON 13TH DAY OF
MARCH 1889 AND IN THE MATTER OF RULE 15 AND OTHER RULES
OF THE ELECTION PETITION RULES 1954.
HARRIS MOHD SALLEH PETITIONER
THE RETURNING OFFICER
ISMAIL BIN MAJlN .. 1st RESPONDENT
YONG TECK LEE ... 2ND RESPONDENT
SAUDIN BIN KAOIS .. 3RD RESPONDENT
GAMPARON BIN LAJAH @ MOHD ZULKIFLI
BIN LAJAH .. 4TH RESPONDENT
YAHYA BIN V.P KASIM .. 5TH RESPONDENT
CHONG ENG LEONG @ CHING ENG LEONG .. 6TH RESPONDENT
ELECTION COMMISSION OF MALAYSIA .. 7TH RESPONDENT
ELECTION PETITION NO. K.11 OF 1999
IN THE MATTER OF THE ELECTION ACT 1958 AND THE ELECTION
OFFENCES ACT 1954 (ACT 5) READ WITH SECTION 2 OF THE ANTI
CORRUPTION ACT 1997
IN THE MATTER OF THE SABAH STATE ELECTION FOR THE
CONSTITUENCY OF N.13 LIKAS HOLDEN ON 13TH DAY OF
CHONG ENG LEONG @ CHING ENG LEONG .. PETITIONER
THE SABAH STATE ELECTION OFFICER ... 1sT RESPONDENT
ISMAIL BIN MAJIN AS THE RETURNING
OFFICER ... 2ND RESPONDENT
YONG TECK LEE ... 3RD RESPONDENT
IN OPEN COURT
1. There are two (2) election petitions, Election Petition No. IC 5/99 and
Election Petition No: K. 11/99, arising out of the Sabah State Election
held on 13th March 1999. The election petitions concern the N13
Constituency, Likas, which was won by the SAPP (BN) candidate,
Datuk Yong Teck Lee, (the 2nd respondent) in Election Petition No. K.
5/99 and the 3rd respondent in Election Petition No, K. 11/99.
2. These election petitions were consolidated and tried together in order
to save time and costs.
ELECTION PETITION NO.K. 5/99
3. The petitioner in this case was Datuk Mohd. Harris Salleh, 69 years
old, a veteran politician who was the President of the Bersekutu Party.
He had been in politics for 37 years and was a former Chief Minister of
Sabah in 1984. The Bersekutu Party led by the petitioner had not fared
well in the last few state elections, and in this election it fared no better.
This Election Petition No. K. 5/99 essentially concerns an offenoe under
the Election Offences Act, 1954, i.e. the making and erection of the four
(4) billboards containing false statements, made by the 2nd respondent
or his agents. The court had allowed the application by the 1st
respondent (the Returning Officer, Ismail Bin Majin) and the 7th
respondent (the Election Commission of Malaysia) to be struck out as
parties in this petition as they were not parties to the alleged offence
regarding the billboards.
5. The petitioner alleged that during the 1999 election, the parties had
used unfair practices which constituted offences under the Election
Offences Act, 1954, in particular the putting up of 4 huge billboards in
the vicinity of the Likas polling station. These huge billboards,
measuring 16' x 21' each, bore no printer's name and address on it as
required by the law. The billboards were put up on the eve of the
polling day (10th March 1999) at strategic points: viz Simpang Jalan
Sepangar, Kg. Gusing (Likas), near Masjid Kg. Likas and Simpang
Jalan Tuaran/Jalan Telok Likas in front of Bersekutu Headquarters.
These billboards contained false statements of facts, which seriously
defamed the petitioner and which had directly or indirectly affected the
results of the election in the Likas Constituency.
6. The petitioner's complaints:-
(a) Paragraph 3(A)(iv)
The Second Respondent and/or his agents had with his knowledge or
consent during the above election printed, distributed and or posted up
advertisements, handbills or posters which refers to the said election
and which does not bear upon its face the names and addresses of its
printer and publisher:
"An Election advertisement board which was erected at the junction of
Jalan Tuaran/Jalan Telok Likas at Kota Kinabalu on the 10th March
1999 under the heading "Sebilangan Besar Dosa-Dosa Harris Yang
Tidak Boleh Dimaafkan Oleh Rakyat Sabah."
(b) Paragraph (b)
"An election advertisement board which was erected at the junction of
Jalan Tuaran/Jalan Telok Likas at Kota Kinabalu on 9th day of March
1999 under the heading "Reject This Arrogant Politician", (c) Paragraph
"An Election advertisement board which was fixed at a workshop at
Taman Nelly, Kolombang, Inanam at Kota Kinabalu on or before 10th
March 1999 under the heading "Sabah Petroleum Deal KTV".
7. The false statements in the billboards were as follows:-
Sebilangan Besar Dosa-Dosa Harris Yang Tidak Boleh Dimaafkan oleh
1. Siapa menjatuhkan Tun Mustapha/USNO? Dia
2. Siapa serahkan hasil minyak Sabah? Dia
3. Siapa jual Labuan? Dia
4. Siapa mengusir orang-orang Islam di setinggan? Dia
5. Siapa menindas pegawai-pegawai kerajaan Islam '75 - 85' (9
6. Siapa menipu Tun Mustapha naik ke Istana angkat sumpah? Dia
7. Siapa yang mengetuai rusuhan 1986? Dia
8. Dan banyak dosa-dosa lain lagi.
The English translation of the statements are as follows:-
1. Who brought down Tun Mustapha/USNO? He
2. Who surrendered oil revenue of Sabah? He
3. Who sold Labuan? He
4. Who chased out Muslims at squatter areas? He
5. Who victimized Muslim Government officers '76 - 85 (9 years)? He
6. Who cheated Tun Mustapha into going up to the Istana to be sworn
7. Who led the riots in 1986? He
8. There are many other sins.
8. I will deal with three main statements which are of real significance;
(1) Sabah Oil Revenue
(2) Labuan; and
(3) Riot in 1986.
8.1 Sabah Oil Revenue
Following the discussions held in 1974 between the Prime Minister and
the Chief Ministers of Sabah and Sarawak respectively, it was agreed
that Parliament passed the Petroleum Development Act 1974, wherein it
was agreed that all the 13 States in Malaysia, would relinquish the fight
over petroleum in each state to a statutory body to be established,
known as Petronas.
On 22nd March 1975 via an agreement between Petronas and Sabah,
Sabah will relinquish its right over petroleum found in the State of
Sabah to Petronas. In other words, the right over petroleum is vested
forever in petronas. Petronas, in return for the right given by Sabah
State, will pay the 10% royalty on the petroleum received from its
contractors, Shell and Esso, 5% to the State of Sabah where petroleum
was found and 5% to the Federal Government. Similar agreements were
concluded between Petronas and each of the other 12 States.
The Sabah Government was represented by the Chief Minister (then the
late Tun Fuad) and Petronas by its Chairman (Tengku Razaleigh
Hamzah). Apparently, each of the 13 States (in Malaysia) relinquished
the fight over petroleum in its State to Petronas, even though some of
the States has no petroleum for instance, the State of Terengganu
relinquished its right over petroleum via the 1975 agreement with
Petronas although no petroleum was found in the State of Terengganu
Labuan was never sold to the Federal Government as there was no
payment received by the Sabah Government or Harris. It was agreed by
the Federal Government and the Sabah Government that the
adminstration of Labuan be given to Wilayah Persekutuan which had
the resources and finance to develop Labuan effectively, in the words
of Harris, as it were it would be another "Singapore" (perhaps a smaller
When the Rang Undang-Undang Wilayah Persekutuan Labuan 1984
was tabled in Parliament, there was no opposition from any quarters
especially Sabah. As such Sabah had consented to the passing of the
law which created the Wilayah Persekutuan Labuan, a territory in
Malaysia, and the Federal Government was not involved in the
administration of Wilayah Persekutuan Labuan at all. The statement in
the billboard that Harris had sold Labuan to the Federal Government
was absolutely absurd.
8.3 The Riot in 1986
According to evidence in court, Harris had never been involved in riots
of any kind in Sabah all his life. Harris had never bean charged nor
convicted of an offence of riot. However, on 23rd March 1986 at the
invitation of Tun Mustapha (the late) he participated in a peaceful
demonstration for the Muslim community, and no arrest was made. This
was confirmed by PWl7, Datuk Hj. Abdul Karim Bin Abd. Ghani (the
UMNO Sabah Chief), in his testimony at this hearing.
This evidence stood unchallenged.
9. The putting up of the huge billboards was undertaken by the workers
of SAPP surreptitiously on the eve of the polling day as testified by
several witnesses including PW6 and PW7. They were put up in the
stealth of the night at the abovementioned places, and were hastily
dismantled almost immediately after the close of polling on the following
day. It was observed that these billboards bore the BN symbols, but did
not carry the printer's name and address thereon. Following an
investigation by PW6 and PW7 (Harris's men), they found a workshop
where the billboards were printed, and on inquiry they were told that it
was on the instruction and direction of SAPP officials. There is no
evidence to show that the 2nd respondent personally put up the
billboards but it was the SAPP officials or workers who put up these
billboards. There was no evidence in rebuttal to this piece of evidence.
10. The work of SAPP members or agents in erecting those billboards
may be imputed to its leader, i.e. the 2nd respondent. There is no
evidence to show that he had no knowledge about this. Evidently it is
clear that these billboards were erected for the sole benefit of the SAPP
(BN) candidate, the 2nd respondent.
11. Section 11 of the Election Offences Act. 1954 states:-
"(1) Ever person who - ..........................
(c)................ prints, publishes, distrbutes or posts up or causes to be
printed published, distributed or posted up any advertisement, handbill,
placard or poster which refers to any election and which does not bear
upon its face the names and addresses of its printer or publisher,
(d) makes or publishes, before or during an election, for the purpose of
affecting the return of any candidates, any false statement of fact in
relation to the personal character or conduct of such candidate;
shall be guilty of a corrupt practice, and shall, on conviction by a
Sessions Court, be liable, in the case referred to ........... and, in any
other case. to imprisonment for six months and to a fine of five hundred
See ALI AMBERAN v TUNKU ABDULLAH (1970) 2 MLJ 15.
A similar provision to section 11(1)(c), it is noted, appears in section
127A of the Indian Representation of the PEOPLE ACT 1951, thus:-
"S 127A - Restriction on the printing of pamphlets, posters etc
(1) No person shall print or publish, or cause to be printed or published,
any election pamphlets or poster which does not bear on its face the
names and addresses of the printer and the publisher thereof."
12. It should be noted both the acts prohibited by subssections (c) and
(d) of section 11 are classified as "corrupt practice".
13. Learned counsel for the petitioner submitted that there is no
necessity to prove that a corrupt practice or illegal practice had
affected the result of the election. In other words, an election is void if
corrupt practice had been proved without any need to examine whether
such an act had in fact "affected the result of the election". Even under
section 32(a) of the Election Offences Act, 1954, where there is
non-compliance, we do not have to prove that results were affected.
14. Section 32 of the Election Offences Act, 1954 states:-
"The election of a candidate at any election shall be declared to be
void on an election petition on any of the following grounds which may
be proved to the satisfaction of the Election Judge:
(a) that general bribery, general treating or general intimidation or other
misconduct or other circumstances whether similar to those before
enumerated or not have so extensively prevailed that they may be
reasonably supposed to have affected the result of the election;
(b) non-compliance with the provisions of any written law relating to
any election if it appears that the election was not conducted in
accordance with the principle laid down in such written law and that
such non-compliances affected the result of the election;
(c) that a corrupt practice or illegal practice was committed in
connection with the election by the candidate or with his knowledge or
consent, or by say agent of the candidate;
(d) that the candidate personally engaged a person as his election
agent, or as a canvasser or agent, knowing that such person had within
seven years previous to such engagement been convicted or found
guilty of a corrupt practice by a Sessions Court, or by the report of an
Election Judge; or
(e) that the candidate was at the time of his election a person
disqualified for election."
15. In RE RANJONG PUTERI JOHOR STATE ELECTION PETITION,
ABDUL RAZAK BIN AHMAD v DATUK MD. YUNOS BIN SULAIMAN &
ANOR (1988) 2 MLJ 111, Wawn Yahya J. (as he then was) adopted
the rationale enunciated in MORGAN & ORS v SIMPSON & ANOR
(1974) 3 All ER 722 that an Election Judge could declare an election
void if the management of the election was not conducted substantially
in accordance with the election law irrespective of whether the
irregularities complained of had affected the election result or not. This
was followed by Ahmad Fairuz J. (as he then was) in ABD HAMED B.
MANAT v UZ BAHARUDIN B. MOHD & 2 ORS (1993) 1 AMR 1.
Standard of Proof
16. Under section 32 of the Election Offences Act, 1954 it has been
laid down that the grounds' which may be proved to the satisfaction of
the Election Judge. This also applies to section 11 of the Act, what then
constitute to the satisfaction of the court.
17. Wan Yahya Judge (as he then was) in TANJONG PUTERI's case
(supra) states at page 113:
"It is neither wise nor practical to lay down an inflexible standard of
proof to be followed in an election case when dealing with such
application and for that reason the legislature has obviously left it for
the election court to decide the quality of evidence required to prove a
case according to the circumstances of each case."
See also ABD HAMED B. MAMAT's case (supra)
18. In DATU MUSTAPHA B. DATU HARUN v TUN DATUK HJ. MOHD
ADNAN ROBERT (1986) 2 MLJ 420 Tan Chiaw Thong J. held that
where there are allegations of criminal misconduct and threatening
behaviour, which amounts to criminal offence, the party alleging must
prove its case on the balance of probabilities. See EASTERN
ENTERPRISES LTD v ONG CHOO KIM (1969) 1 MLJ 236 and LAU
HEE TEAH v HARGILL ENGINEERING SDN. BHD. & ANOR (1980) 1
19. In H.AMAD BIN MAT NOOR v TENGKU SRI PADUKA RAJA &
ORS (1993) 3 MLJ 533, Lamin J. (as he than was) came out in strong
"(1) The alleged acts of corrupt practice within the meaning of a 32(c)
of the Election Offences Act 1954 ('the Act') and none of the acts
enumerated in s 32 of the Act was criminal in nature. If such alleged
acts were proved, then it would be a ground to declare the election of
the respondent concerned null and void but there would be no finding
of guilt and no conviction.
(2) A court of an election judge was a civil court and such a
conclusion was fortified by s 33(2) of the Act in that the judge's power
to call witnesses and to have them sworn before him was as nearly as
circumstances admit as that of a High Court judge sitting in exercise of
his 'original civil jurisdiction'.
(3) In order to determine whether an act is criminal in nature, one must
ask the question as to whether it entails penal consequences. The acts
enumerated in s 32 of the Act would not be visited by some form of
punishment and therefore, the standard of proof required must be that as
applied in civil proceedings, that is on the balance of probabilities,"
Burden or Proof
20. It was held by Lamin J. (as he than as) in HAMAD's case (supra)
that the burden of proof lies on both sides i.e. the petitioner and the
respondent. In MURSIN B> LAINI @ MATDIN v DATUK FRED SINIDOL
(1983), the Writ Journal of the SABAH LAW ASSOCIATION VOL. p.
11, Chong Siew Fai J. (as he then was) cited with approval Indian
cases which hold that the returned candidate is not altogether absolved
from all liability to adduce evidence to disprove the case of the
petitioner, for instance, to prove facts within his special knowledge.
21. In SHEN YUAN PAI v DATO WEE HOOD TECK & ORS (1976) 1
MLJ 16 where the late B.T.H. Lee J. held that the omission by the
defendant in not ca11ing their agent to give evidence in support of their
case should be viewed against them.
22. In SARKAR ON EVIDENCE, 13th EDITION, page 961 it was
provided that the said principle of law applies equally in election cases.
The legal maxim lex non cogit ad impossibilia which means "the law
does not require a man to do that which he cannot possibly perform".
Agency in Election Cases
23. A candidate at an election is responsible for the acts of his agents
who are not and would not necessarily be agents under the common
law of agency. In ALL AMBERAN's case (supra), his Lordship Raja
Azlan Shah J. (as His Royal Highness then was) said:-
"Inspired and guided by English and Indian election law I take the view
that the rule of extended scope of agency holds good in our election
law; any other view would tend to make it impossible to preserve the
purity and freedom of elections. Accordingly a candidate at an election
is responsible for the acts of agents who are not and would not
necessarily be agents under the common law of agency. Therefore a
political party and its prominent members who set up the candidate and
with his consent, either expressly or by necessary implication, sponsor
his cause and work actively to promote his election, may aptly be
regarded the "agents" of the candidate for election purposes."
See GURDIAL SINGH NIJAR v K.S. BALAKRISHNAN (1993) 2 CLJ 75.
24. The 2nd respondent had failed to put up evidence in rebuttal to the
petitioner's case, and I found that the petitioner's case had been proven
on a balance of probabilities.
25. His Lordship Raja Azlan Shah J. (as His Royal Highness then was)
in ALI AMBERAN's case (supra) said:
"It is of significance to note that the primary purpose of the diverse
provisions of the election law which may at first-hand appear to be
technical is to safeguard the purity of the election process and the
courts will not in ordinary circumstances minimize their operation. It is
the concert of time courts to purge elections of all kinds of corrupt or
illegal practices so as to protect the political rights of the citizens and
26. On the evidence as a whole, I find that the 2nd respondent had
committed an offence under section 11(c) and (d) and section 32 of the
Act. I would declare the election of N13 Likas Constituency null and
ELECTION PETITION NO. K 11 OF 1999
27. The petitioner brought this action against The Sabah State Election
Officer (the 1st respondent), the Returning Officer, Ismail Bin Majin (the
2nd respondent) and Yong Teck Lee (the 3rd respondent).
28. Basically, the petition was based on three main grounds:-
1. That thc Election Rolls 1998 which were used in the State Election in
March 1999 for thc N13 Likes Constituency was illegal as it contained
the names of non-citizens and persons who had been convicted for
possession of fake identity cards.
2. That there were corrupt practices; and
28.1 The Electoral Roll
28.1.1 The gist of the petition is that the 1998 Electoral Poll for Likas
Constituency was illegal as it was compiled contrary to the Constitution
and Laws of Malaysia; only citizens are eligible to vote in any
Parliamentary election or State election (article 119 (1) of the Federal
Constitution), and the electoral roll ought not to admit non-citizens or
those persons who have been convicted of the offence of possession
of fake identity cards.
28.1.2. The electoral roll for the country is updated annually by the
Election Commission (SPR). Voters who have died are struck off and
new eligible voters are added to the list. The Election (Registration of
Electors) Regulations (Sabah) 1971, which sets out in detail the outlines
for this updating process, also sets out the procedure for all other voters
in the electoral roll of his or her constituency.
28. 1 .3. According to this legislation, if any voter files an official
objection against the inclusion of a particular person, the SPR has to
hold a Public Inquiry in which the objector as well as the person being
objected to are invited. The objector will make out a prima facie case
for his objection, then the SPR will require the person being objected to
give proof of his residential status.
28.1.4. It is public knowledge that the presence of a large number of
illegal immigrants in Sabah has been for quite some years, and that
there are numerous cases of illegal immigrants who have bean
registered in the electoral roll as voters using fake identity cards or
identity cards illegally obtained. This is of grave concern to the
Sabahans in particular, and in general to all Malaysin citizens. As a
matter of fact, the 3rd respondent (a former Chief Minister) had in the
past been consistent in his call to the government to carry out
investigations into those cases and had brought up this issue of illegal
immigrants in the electoral roll with the SPR many times when he was a
member of PBS, anti later SAPP. The petitioner, a member of PBS, had
carried out his research and investigation, and untiringly made known
the results thereof to the government. In this trial, he attempted to
produce evidence to the effect before this court.
28. 1.5. The petitioner, Chong Eng Leong @ Ching Eng Leong (PWS),
54 years old and a surgeon by profession, stood as a PBS candidate in
this election, and lost to the 3rd respondent.
28.1.6. The primary contention was that the certification of the 1998
Electoral Roll for Likas Constituency was fraudulent as there were
illegal practices in the registration and preparation of the electoral roll
for Likas Constituency (N13), which admitted into the electoral roll many
non-citizens and persons who were clearly disqualified by virtue of the
fact that they had been convicted in a court of law for possession of
fake identity cards.
28.1.7. The electoral roll for Likas Constituency was certified by SPR in
Decernber 1998. Prior to that date, there were 4,585 objections raised
in respect of List A and 246 objections in List B. List A consists of
names of voters in a constituency and the review thereof was not
allowed except in cases of death or loss of eligibility (or
disqualification). List B consists of names of voters who had made
applications for transfer of constituency, e.g. if a person has changed
his address and resides in another constituency. A person has to be in
List B before he moves into List A.
28.1.8. The petitioner testified that there was no hearing in respect of
the 4,585 objections in List A, and as such he made an appeal against
the non-hearing of the objections to SPR, Kuala Lumpur, which drew a
28.1.9. Of the 246 objections in List B, only 10 objectors were present
at the inquiry held on 15th November 1998. As a result 19 names were
deleted in List B; in fact one objector was not even registered with the
Jabatan Pendaftaran Negara (JPN).
28.1.10. There were 4,197 persons having dubious identity cards
(Exhibit P15) and the petitioner had written a letter dated 20th April,
1999 to the JPN about them but them was no response. Later his
counsel wrote a letter (Exhibit P16) dated 8th September l999 to JPN on
the same subject matter and received the sametreatment.
28.1.11. On another occasion he received from the public 36 cases of
dubious identity cards (Exhibit P25 (1-36)) which names appeared in
tha electoral roll for Likas Constituency, and he 1odge a report with the
police, vide Kota Kinabalu Report No. 1438/1999. It appeared that no
investigation had been carried out on the report.
28.1.12. The petitioner's evidence found corroboration in the testimony
of the Pegawai Pendafter Likes, (Registering Officer Likas), Ewol B Muji
@ Edward Ewol Muji (PW10).
28.1.13. As a Registering Officer, he registered electors (voters) for the
State Election, and he received objections from voters. He testified that
he received 4,585 objections to List A and 246 objections to List B,
Regarding the objections to List A, there was no public inquiry held.
The reason being that there was a strict instruction by SPR that no
objection to List A could be entertained except in cases of death or
disqualification. The instructions were contained in SPR.'s letters dated
7th and 8th October 1998 (Exhibits P21 and P22) addressed to
Pegawai Pilihannya Negeri Sabah and all Pegawai Pendaftar. A letter
ref. SPR(S)273/(42) dated 7th October 1998 (Exhibit P22) addressed to
Pegawai Pilihanraya Negeri Sabah, which stated, inter alia:-
"2. Sukacita dimaklumkan bahawa Suruhanjaya Pilihanraya telah
memutuskan bantahan terhadap Senarai "A" 1997 tidak akan diterima
melainkan atas alasan kematian. atau hilang kelayakan. Ini bermakna
bantahan kepada Senarai "A" 1997 yang diterima atas alasan-alasan
selain yang dinyatakan tersebut dari mana-mana pembantah ditolak
oleh Pegawai Pendaftar."
The words "hilang kelayakan" are not defined. They simply mean "loss
of eligibility" or disqualification.
28.1.14. The Pegawai Pilihanraya Negeri Sabah in its letter ref. PPN(O)
1/6(66) dated 8th October 1998 (Exhibit P21) conveyed the decision of
SPR. to all Pegawai Pendaftar (Registering Officers) including PW10, as
" ..... dimaklumkan bahawa Suruhanjaya Pilihannya Malaysia telah
memutuskan bahawa bantahan Senarai A Daftar Permilih 1997 yang
telah disahkan pada 31 Disember 1997 tidak boleh diterima kecuali atas
alasan kematian atau hilang kelayakan."
28.1.15. As a result, the petitioner and a few others made applications
to PWI0 appealing against the decision not to hold a public inquiry,
whereby the applications were forwarded by PW10 to SPR (HQ) Kuala
Lumpur (Exhibit P49). There was no response.
28.1.15. PW10 further testified that he did not verify the identity cards
during the registration of voters. It was not a practice that he had to
verify identity cards nor the citizenship documents of those people who
wish to register in the electoral roll. In other words, PW10 just followed
orders of his superiors not to hold a public inquiry to an objection
except in cases of death or disqualification. Superior orders or state
authority are no defence to an action otherwise illegal.
28.1.17. The letters (Exhibits P21 and P22) of SPR to Pegawai
Pilihanraya Sabah did not allow public inquiry to be held regarding the
4,585 objections to List A except in cases of death and the loss of
eligibility (i.e. disqualification). Thus a citizen in List A may lose his
eligibility as a citizen, for example, in contravention of the provisions of
the Federal Constitution and yet remain a voter on the electoral roll. Are
persons who have been convicted in a court of law for the offence of
possession of fake identity cards, not persons who have lost their
eligibility? Are non-citizens who have been registered in an electoral
roll, cannot be objected to and, if proven, his name should not be
deleted from the roll?
28.1.18. The SPR has to face the truth. The 4,585 objections in List A
were cases of persons having dubious identity cards or persons who
had been convicted of having fake identity cards. The people who
raised the objections were exercising their rights as citizens, and it is
unthinkable that the SPR should shut-off the objections in List A without
a public inquiry. It is a constitutional wrong for SPR to have rejected the
objections outright. More importantly, it is wrong for SPR to allow
non-citizens and disqualified persons to be on the electoral roll as
voters. It appears that the certification of the electoral roll for the 1998
Likas Constituency by SPR ultra vires the Constitution and is in fact
28.2 IDENTITY CARD NOT PROOF OF CITIZENSHIP
28.2.1 The identity card is not proof of citizenship. It appears that the
SPR takes the identity card as proof of citizenship and a person who
produces a blue identity card will be registered in the electoral roll.
PW10 (Pegawai Pendaftar Likas) testified at the trial that it was the
normal practice that the Pegawai Pendaftar accepts for registration on
the electoral roll persons who have blue identity cards and also those
with temporary identity cards, that is form JPN 1/9 and form JPN 1/ll.
This is been much abused. For example, INDAH MAHIYA BTE
ABDULLAH had lost her blue identity card and ropeted the loss to the
police, vide Report No, 2429/98. Based on the police report she was
issued with a temporary identity card, form JPN 1/9. It seemed that
based on the same police report No. 2429/98; seven other people were
issued with form JPN 1/9 (i.e.temporary identity card) as follows:-
1. Ambun Alaisman Identity card No. H0382459
2. Siti Rafish bte Yusop Identity card No. H038503
3. Rahman bin Sultan Identity card No. H0481302
4. Abdul Hamid bin Hashim Identity card No. H0559359
5. Rahan bte Dohuls Identity card No. H0573678
6. Massa bin Angki Identity card No. H0575853
7. Sodam bin AbduIlah Identity card No. H0481204
28.2.2 This piece of evidence stood unchallenged.
28.2.3 In another election case, No. K 1/99 before this court, the
petitioner had notified the SPR that there were cases of the use of
duplicate identity card numbers in the registration of names in an
electoral roll, viz:-
1. Identity card No, H0867925 held by:-
ROSENIAH BT GANO Kudat
NGUI CHEE PING Karamunting
2. Identity card No. H0870205 held by:-
LUISE @ YIANA BT WARISAN Kudat
LUISE VIANA BT WARISAN Inanam
3. Identity card No. H0870883 held by:-
SAIMAH BTE IBING Kudat
FAUZIAH BTE MAHMUD Lahad Datu
4. Identity card No. H0872933 held by:.
ABDUL BIN MUKS1N Kudat
5. Identity card No. H0873447 held by:-
YAKU B. DUGANG Kudat
AJIJAH BT HASSAN Pantai Manis
28.2.4 Obviously these are in contravention of Section 35(1)(e) of the
National Registration Act. This evidence remains unchallenged....
28.2.5 The Tawau Court had convicted the following persons in 1996
for the offence of possession of fake identity cards:-
KASSIM BIN ALI Identity card No. H0508353;
ANWAR Identity card No, H0512235; and
KADIR LABAK Identity card No. H0454652
But their names were not deleted and were still in the 1998 certified
electoral roll for Likes Constituency. See PW14's evidence (Exhibit
P62) - below. Are these not persons who had lost their eligibility -
'hilang kelayakan' within the context of SPR's letter (Exhibit P22)? I
should think so. But why has the SPR failed to hold a public inquiry and
have their names deleted from the electoral roll?.
28.2.6. How easily many of the immigrants, Filipinos and Indonesians,
had obtained citizenships in this maner, i.e. through their applications
for identity cards, was well illustrated by the testimony of ASAINAR B
IBRAHIM @ HASSAN, (PWll), a former District Chief for Bandar
Sandakan from 1982 - 1985. A system which was established before
Malaysia Day 1953 where an appointment of District Chief, a parallel
appointment (a political appointment), vis-a-vis the District Officer was
appointed by the government PW11 was a Pegawai Perhadanan
Kemajuan Sabah, later Ahli Lembaga Bandar Sandakan and Ketua
Daerah Sandakan in 1985.
28.2.7 He testified that there were two categories of applicants for the
blue identity cards.
Those persons under 12 years old and who have birth certificates have
no difficulty in obtaining blue identity cards. Those above 12 years old
and who have no birth certificates may obtain identity cards by using
form HMR 10 (JPN). This form is filled up by the parents and submitted
to the District Chief who supported the application and sent the form to
the District Officer concerned, who, based on the recommendation of
the District Chief, approved the application. The Jabatan Pendaftaran
Negara then issued the blue identity card. When PW11 was first
appointed as the District Chief, he had no idea of what was going on
and he recommended, without question, the 1,000 and more of such
applications that he received from the Native Court and, on his
recommendation, they were issued with blue identity cards. He said that
"the main factor causing loss to Berjaya Government in 1985 to PBS
was because Berjaya leaders sold the rights of Sabahans to foreigners,
totaling 40,000 by making them blue identity cards, thus they became
citizens." He was a Berjaya Party candidate in Sungei Sibuga
Constituency in the 1986 State Election but lost.
In 1998 it was alleged that he was involved in a project to process and
distribute blue identity cards to illegal immigrants in Sabah, the Filipinos
and the Indonesians. On 9th July 1988 he was detained under the ISA
for 60 days and thereafter he was placed under restricted residence for
2 years. He was never charged in court to this day. He alleged that
there was a conspiracy at the highest level to register illegal immigrants
as voters (see below).
PW13 Mutalib Md Daud, is a former Executive Secretary for Silam
Umno Division and is still a member of Umno. Mutalib was born in Kg.
Lanai, kedah and initially held a Malaya identity card. In 1970 he
migrated to Sabah under the "Untuk kemajuan Ba" programme and
settled down at a village name Kg. Burong, Lahad Datu where he found
that a large number of illegal immigrants from Indonesia and Philippines
had settled down.
He observed that there were numerous immigrants who had obtained
blue identity cards in a relatively short time, 3 months or 3 years, while
it took him 23 years to change his Malayan identity card into an identity
card of Sabah through the normal process. He testified that of the
43,000 new Umno members recruited at the time, only 14,000 had
genuine blue identity cards, the rest he did not know how they got their
blue identity cards.
From 21st October 1996 there was an exercise to recruit Umno
members for 3 days which attracted 10,211 new Umno members. They
applied for identity cards, but only 180 applications for identity cards
from these members were approved by Jabatan Pendaftaran Negara,
and the rest were rejected.
The instances of non-citizens and phantom voters in the electoral roll
as disclosed at their trial may well be the tip of the iceberg. "Phanton",
according to the Concise Oxford Disctionary, Ninth Edition, means a
form without substance or reality; a ghost; a specter, and in the context
of a phantom voter, it means that the voters is a non-citizen who is in
an electoral roll by virtue of a fake identity card or identity card
obtained illegally. It cannot be denied that the registration of voters in
the Likas electoral roll was in contravention of the law. No one,
including the government department or institution, is above the law.
It is common knowledge that an influx of illegal immigrants has plagued
Sabah for some years. It is a well known fact as it had appeared in the
local dailies too frequently. The SPR ought to be aware of it and when
the objections were raised as in this case, the SPR ought to have held
a public inquiry as prescribed by the election laws.
The exposure of fraudulent practices such as massive registration of
phantom voters is time consuming. However, it has to be done if we
wish to defend and preserve the meaningful practice of democracy in
Malaysia. As custodians of free and fair elections, the SPR is duty
bound to do it.
It appears that the SPR had deliberately or knowingly sent those letters
(Exhibit P21 and P22) tht prohibit the holding of a public inquiry (exept
in cases of death or loss of eligibility). No one knows the reason or the
rationale for doing so, this is best known only to the SPR. It is obvious
that the SPR's lack of action in holding a public inquiry in the face of
the objections is unacceptable. Therefore the certification in December
1998 of the electoral roll for Likas Constituency was not bona fide.
The failure of SPR to maintain an electoral roll in accordance with the
law makes the electoral roll illegal. Such is the case in the 1998
electoral roll for Likas Constituency (N13). I would in the circumstances,
uphold the petitioner's petition that the 1998 electoral roll for Likas
Constituency (N13) was illegal.
Operation Gembeling (Ops Gembeling)
Radin Malleh (PW14), an Member of Parliament and the Secretary
General of PBS, holds a LLB degree from the Kent University, and had
served the police force for 20 years, holding the rank of DSP when he
left the force in 1990 to joint politics. As the Secretary General of PBS
he received a lot of information and materials of public interest from
members of the public, including documents of pengundi luar or
In early March 1999 he received via Pos Laju a box containing lists of
names and dubious identity cards numbers of 40,000 people and he
had forwarded them to the police, vide report No. 1061/99 dated 10th
March 1999 (Exhibit P60). 31,845 names were found in the 1998
electoral roll, of which 2,975 names were registered in the Likas
He lodged a report with the police, re pengundi luar three times but
unfortunately no action was taken. In particular, 12 fake identity cards
were sent to the police for investigation, vide report KK 1794/96 dated
18th January 1996, and 10 names appeared in the 1998 electoral roll
of Likas Constituency, N13.
It is quite ironic that these reports are meaningless to the police, the
force in which he had been a member of and served faithfully as a
senior officer for a good many years.
Three persons, Mat Tahir, Normini and typpa were convicted by the
Tawau Court for possession of fake identity cards, and an appeal, the
High Court Tawau dismissed the appeal and affirmed the convictions
and sentence (Exhibit P62). Their names were in the electoral roll and
they voted in the election.
Between 1996-1998 several people were arrested under ISA for
involvement in the issuing of fake identity cards: Mohd Agjan b Ariff,
Jabar Khan, Bandi Pilo and Shamsul Alang - all from Sabah Umno; and
Mohd Nasir Sunjit, Asbi b Abdul Karim, Jamah Ariffin, Asli bin Ariffin
and Kee Dzulkifli b Kee Abdul Jalil - all were officers in JPN Sabah.
They were involved in the Ops Gembeling.
This operation called Ops Gembeling whereby the JPN officers were
asked to collect the names of the illegal immigrants, and with the aid of
some political leaders, they were given the blue identity cards. PW14
had written to JPN in respect of these illegal immigrants who were given
blue identity cards (Exhibit P54) and he also wrote to the Ketua
Pengarah Pendaftaran Negara Malaysia on 15th December 1998
before the electoral rolls were certified by SPR on 31st December 1998.
There was no response.
The target of this operation was the Malays of Bugis origin, and these
people formed an association known as Persatuan Kebajikan Bugis
Sabah. For example, Pirsing Siraji, 22 years old, was in possession of
identity card No. H0481706, and his name was found in the 1998
electoral roll (but with the identity card No. H04817096) for Likas
Constituency. It is noted that the Sabah identity card number has 7
digits, Pirsing had identity card number with 8 digits, and he was was
convicted by the court on 28th September 1992.
On 15th December 1998 when PW14 wrote to the JPN for verification
of the identity cards, there was no response. On 7th October 1999
Hamid b Hassan wrote an open letter (Exhibit P66) to the Deputy Prime
Minister - there was no response.
As a Member of Parliament, PW14 raised this issue in Parliament, in a
letter addressed to Setiausaha Dewan Rakyat (Exhibit P65) and it was
rejected under Rule 23(1)(f) as it was a secret matter which the
government could not disclose.
The Secretary of the SPR stated that there was no phantom voters in
Sabah to which the 3rd respondent (a former Chief Minister) quickly put
in a statement in the press "Stop the denial and act" (Exhibit P67).
PW14 referred to a letter (ID14) written by the Chief Information Officer
Umno (Datuk Hj Karim bin Abd Ghani) PW17, which was sent to 31
State Constituencies which included Sulaman Constituency. In Election
Petition No. K 7/99, PW14 filed therein an affidavit to which PW17
responded. He observed that the signature of PW17 in the affidavit and
ID14 were not dissimilar. It referred to about 3,972 pengundi luar.
PW17 in his testimony stated that he did not sign the letter (ID14) and
he suggested that the signature was forged. This letter was distributed to
all Umno branches in Sabah, and in the trial of three persons (Exhibit
P62) in Tawau High Court the Judge had accepted the evidence of the
accused that they were just following the directions of a superior as
contained in ID14. If ID14 carries a forged signature, therefore it is a
forged document. This is a serious allegation, but why is it that PW17
did not publicly disown it as soon as he knew that ID14 had been sent
and received by all Umno branches in Sabah? Why didn't PW17 or
Umno refute this at the trial in the High Court at Tawau? The three
convicted persons had their evidence accepted by the court that they
had been directed by Umno Sabah to register and help these
immigrants to get identity cards. Why didn't PW17 come to court and
deny that ID14 was signed by him? It appears that many people
including all the Umno branches in Sabah and the courts had had been
misled and had acted on it (ID14). But there is no evidence of this
alleged forgery (ID14) and it was never reported to the police. Umno
Chief Information Officer thought it fit to ignore and allow ID14 to be
made use of extensively, including in court proceedings, without taking
any action or step to deny or stop it. As a matter of fact, PW17 had
made no mention of ID14 at all in his affidavit in Petition No. K 7/99. The
veracity of PW17's evidence here is highly questionable.
Corrupt Practices or Bribery
The allegations of corrupt practices or bribery made by the petitioner in
the petition were too general in nature. PW16 testified that days before
the election day, many candidates from various political parties
including the 3rd respondent and their supporters, visited the
constituency. Some brought and distributed to the people food stuff
such as 25 kg rice each, milk, sugar, cooking oil and flour; some were
supplied building materials such as zinc roofs, planks, boards and
water tanks; the more ambitious, built roads, canals, boats and perahus.
Some distributed money. The display of generous concern and care is
a very welcome thing to the voters although it happens at a five-yearly
interval, as a prelude to each election. It is fast becoming a Malaysian
way of life, a tradition as it were, that prior to an election, contesting
candidates will visit their constituency with all types of gifts or presents
in their endeavour to win or influence the voters to their side. Whatever
it is, there is not sufficient evidence before the court to support the
allegation of corrupt practices by the BN candidates. There was no
specific charge that could be brought against the 3rd respondent in the
case. Corrupt practice is quasi criminal in nature and the petitioner has
to prove beyond reasonable doubt the offence of corrupt practice. In
the case of WONG SING NANG v TIONG THAI KING (1996) 4 MLJ
261, the court held that there was no direct evidence that the voters in
the constituency were in any way influenced by the gift. Therefore the
petitioner had failed to prove beyond reasonable doubt the offence of
bribery or corrupt practices.
"The gist of the tort of conspiracy is not the conspiratorial agreement
alone, but that agreement plus the overt act causing damage . . . . The
tort of conspiracy, however, is complete only if the agreement is carried
into effect so as to damage the plaintiff." per Salmon J. in MARRINAN v
VIBARI (1962). 1 All ER p. 871.
HALSBURY's LAWS OF ENGLAND, 4th Edition Vo. 45 p. 721 states
"In order to make out a case of conspiracy the plaintiff must establish -
1. an agreement between two or more persons;
2. an agreement for the purpose of injuring the plaintiff; and
3. that acts done in execution of that agreement resulted in damage to
Warrington LJ in DAVIES v THOMAS (1920) 2 Ch. 189 said:-
''That is to say, to be a conspiracy - that is an unlawful conspiracy,
one which gives rise to either an indictment or a right of action - it must
have an unlawful object, that is, the act which it is intended to bring
about must be in itself unlawful, or, if not in itself unlawful, then it must
be brought about by unlawful means."
Lord Dunedin in SORRELL v SMITH & ORS (1925) AC 700 held that
an act that is legal in itself will not be made illegal because the motive
of the act may be bad.
I can find no evidence that there was a conspiracy between the
Government and the Barisan Nasional (BN) at the highest level as
suggested by Mr Maringking. Not an iota of evidence to show the
existence of an agreement between the Prime Minister or any other
Minister with the Saban BN regarding the registration of disqualified
persons or non-citizens in the electoral roll. The semblance of an
agreement in the 'Operation Gembeling' or the 'Mahathir's Project'
where blue identity cards were sold to these people at RM300 a piece,
evidently has no nexus to connect these to the fake identity cards sold.
It is a mere gimmick to lend legitimacy to these operations. It is
incredible to say that the government is involved in a conspiracy to
register phantom voters especially as no such agreement existed
between the government and the BN. It is true that too many politicians
and public officials have exercised power and responsibility not as a
trust for public good but as an opportunity for private gains.
It has been brought to my attention that the SPR has come up wtih the
revised 1999 electoral roll for Sabah in which more than 19,900 names
have been dropped there from, presumably the names are those who
have died and/or have lost their eligibility to vote as citizens.
I seize this opportunity to record a few observations that a worrisome
trend or culture, not borne out of Malaysian culture, has evolved where
public institutions or government departments do not seem to care to
respond to letter or reports received from the public. Such letters or
reports seemed simply ignored, invariably no response or
acknowledgement or receipt whatsoever has been made, for example,
from personal knowledge in a few cases; where my son had applied for
a temporary work permit which was refused, and I wrote an appeal to
the authority concerned; and in another case, my daughter had applied
for a scholarship for a one-year post graduate course. In both cases
there were no acknowledgement despite reminders, although earlier on,
personal assurances of favourable consideration had been given.
Rgrettably this is the very antithesis to good governance in as much as
a threat to the government's effort to foster food relationship and
integration between East and West Malaysia.
It has been said that a government is a trustee of the people, and being
elected by the people, it owes a higher responsibility to the people. The
government must act honestly and responsibly.
The only guide to a man in his conscience, the only shield to his
memory is the rectitude and the sincerity of his action. In my view, it is
an insult to one's intelligence to be given a directive over the phone
that these petitions should be struck off without a hearing, and above
all, it is with prescience consciences that I heard these petitions. God
has given me the strength and fortitude, as a lesser mortal, to act
without fear or favour, for fear of a breach of oath of office and sacrifice
justice, and above all to truly act as a Judge and not a 'yes-man".
In conclusion, I would declare that the 1998 Electoral Roll for Likas
Constituency (N13) is illegal, and that the election held in March 1999
for Likas Constituency is null and void. I will inform the SPR of this
decision in due course.
In Petition No. K.5 of 1999, costs to the petitioner against the 2nd
respondent, and n Petition No. K11 of 1999 costs to the petitioner
against the 1st and 2nd respondents. In both cases, costs are to be
taxed unless agreed.
(DATUK HJ MUHAMMAD KAMIL BIN AWANG)
Date of hearing
21-23/9/99 (K.5/99 & K11.99)
24/9/99 (K.5/99 & K11.99)
27-29/9/99 (K.5/99 & K11.99)
9-13/11/99 (K.5/99 & K11.99)
15-16/11/99 (K.5/99 & K11.99)
11/4/00 (K.5/99 & K11.99)
13/4/00 (K.5/99 & K11.99)
17-18/4/00 (K.5/99 & K11.99)
20/4/00 (K.5/99 & K11.99)
20-22/6/00 (K.5/99 & K11.99)
Election Petition No. K.5 of 1999
Mr Ansari Abdullah
Messrs Ansari & Co. Advocates,
For 1st & 7th Respondent:
Mr Abu Bakar
Senior Federal Counsel
For 2nd Respondent:
Mr Alexander Decena,
Mr P.K. Lim & Mr John Sikayun
Messrs Luping & Company Advocates,
For 6th Respondent:
Mr Yunof Maringking
Messrs Maring & Company Advocates,
3rd, 4th & 5th Respondent:
Election Petition No. K.11 of 1999
Mr Yunof Maringking
Messrs Maring & Company Advocates,
For 1st & 2nd Respondent:
Mr Abu Bakar
Senior Federal Counsel
For 3rd Respondent
Mr Alexander Decena,
Mr P.K. Lim & Mr John Sikayun
Messrs Luping & Company Advocates,