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Aliran: Phantoms on the Roll in Sabah By Hakim Muhammad Kamil 29/8/2001 6:08 pm Wed |
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http://www.malaysia.net/aliran/monthly/2001/6f.html
Must-read extracts from Justice Muhammad Kamil's landmark
judgment on phantom voters in Sabah. For full version read
KM2 4682 - The Likas Judgement
Judgment by Justice Datuk Hj Muhammad Kamil bin Awang
on Election Petition No K11 of 1999
28.1 The Electoral Roll 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....
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... List B consists of names of voters who had made
applications for transfer of constituency....
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.... 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 there 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 same treatment. 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 the
electoral roll for Likas Constituency, and he lodged 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 Pendaftar Likas, (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
Pilihanraya 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? ....
28.1.14. The Pegawai Pilihan-raya 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.? 28.1.16. 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....
28.1.18. 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 is ultra vires the Constitution and is in
fact illegal. 28.2 Identity Card Bot 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 has
been much abused. For example, INDAH MAHIYA BTE ABDULLAH had lost her blue
identity card and reported 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)? 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 [5 cases given] 28.2.5 The Tawau Court had convicted the following persons in 1996 for the
offence of possession of fake identity cards:- (3 names given)...
But their names were not deleted and were still in the 1998 certified
electoral roll for Likes Constituency.
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 Perbadanan 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.... 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 1998 he was detained under the
ISA for 60 days and thereafter he was placed under restricted residence for
2 years.... 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....
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 Radin Malleh (PW14), a Member of Parliament and the Secretary General of
PBS, holds a LLB degree from Kent University, and had served the police
force for 20 years, holding the rank of DSP when he left the force in 1990
to join politics. As the Secretary General of PBS he received a lot of
information and material 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 card 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.... 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 an identity card
number with 8 digits, and he 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.... 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 .... 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? ... 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 and 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. ?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.? ??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.
No Response 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 was 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
good 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.
Directive Over the Phone The only guide to a man is 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
a prescient conscience 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 in 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. |