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The Star Nation, Saturday, June 9, 2001

Full judgment

MALAYSIA

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.

BETWEEN

HARRIS MOHD SALLEH PETITIONER

AND

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

CONSOLIDATED WITH

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

AND

IN THE MATTER OF THE SABAH STATE ELECTION FOR THE CONSTITUENCY OF N.13 LIKAS HOLDEN ON 13TH DAY OF MARCH 1999

BETWEEN

CHONG ENG LEONG @ CHING ENG LEONG .. PETITIONER

AND

THE SABAH STATE ELECTION OFFICER ... 1sT RESPONDENT

ISMAIL BIN MAJIN AS THE RETURNING

OFFICER ... 2ND RESPONDENT

YONG TECK LEE ... 3RD RESPONDENT

BEFORE THE HONOURABLE JUSTICE DATUK HJ. MUHAMMAD KAMIL BIN AWANG

IN OPEN COURT

JUDGMENT

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:

Particulars

"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 (c)

"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 Rakyat Sabah:

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 tahun)? Dia

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 in? He

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; viz,

(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 then.

8.2 Labuan

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 Singapore).

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.

The Law.

11. Section 11 of the Election Offences Act. 1954 states:-

"(1) Ever person who - ..........................

(a)..............

(b)...............

(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;

(e) ................

(f) .............................

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 ringgit."

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 MLJ 145.

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 terms:

"(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 the constituency."

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 void.

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

3. Conspiracy.

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 blank.

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 follows:-

" ..... 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 illegal.

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

SAIDSARIPUDIN Balung

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.

PHANTOM VOTERS

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 phantom voters.

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 electoral roll.

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.

CONSPIRACY

"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 that:-

"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 the plaintiff."

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)

JUDGE

Date of hearing

27/7/99 (K.5/99)

29/7/99 (K.5/99)

24/8/99 (K.5/99)

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

For Petitioner:

Mr Ansari Abdullah

Messrs Ansari & Co. Advocates,

Kota Kinabalu

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,

Kota Kinabalu

For 6th Respondent:

Mr Yunof Maringking

Messrs Maring & Company Advocates,

Kota Kinabalu

3rd, 4th & 5th Respondent:

Unrepresented

Election Petition No. K.11 of 1999

For Petitioner:

Mr Yunof Maringking

Messrs Maring & Company Advocates,

Kota Kinabalu

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,

Kota Kinabalu.