Pakatan turns to Federal Court to nullify GE13 results


Published: 18 November 2014

Pakatan Rakyat alleges that the 2013 general election was not free and fair because of the indelible ink fiasco. – The Malaysian Insider file pic, November 18, 2014.

Pakatan Rakyat alleges that the 2013 general election was not free and fair because of the indelible ink fiasco. – The Malaysian Insider file pic, November 18, 2014.

More than 18 months after GE13, Pakatan Rakyat (PR) will make another attempt to nullify the results at the Federal Court to argue that the general election in 2013 was not free and fair because of the indelible ink fiasco.

Lawyer Americk Sidhu said the litigants have given instruction to go to the Federal Court despite the decision of two lower courts to allow the Election Commission (EC) to strike out their suit without a trial being held.

Americk said the plaintiffs, among whom were those who lost in the May 5 general election in 2013, had planned to call witnesses to give evidence during the hearing.

“The clients now want us to apply for leave in the Federal Court to appeal against the majority Court of Appeal,” he told The Malaysian Insider.

The Court of Appeal on November 7 affirmed the ruling of the High Court that the litigants could only challenge election results by filing petitions before an election court.

The majority ruling said this was the only option for the aggrieved parties as it was provided under Article 118 of the Federal Constitution.

“A civil court has no jurisdiction to hear the matter and the application to remove election commissioners,” said Court of Appeal judge Datuk Alizatul Khair Osman, who delivered the majority ruling with Datuk Rohana Yusof.

However, the dissenting judge, Dr Prasad Sandosham Abraham, said a trial should be held to determine whether the EC had breached its constitutional duty.

“I believe that the split decision in the Court of Appeal is also an inspiration to obtain leave from the apex court to hear the appeal,” Americk said.

The litigants have until December 5 to file their court papers which must include framing legal questions of public importance for the Federal Court’s approval.

“That should not be a problem because the suit has definitely brought about novel issues to be argued,” Americk added.

On February 7 this year, High Court judge Rosnaini Saub ruled that it was wrong for the opposition and several defeated candidates to challenge the election results in a civil court.

The EC had taken the stand that the High Court had no civil jurisdiction to declare the election results as illegal.

PR first filed the suit last year, asking the court to set aside the results of all parliamentary seats, as well as to disband the current EC leadership and to conduct fresh polls.

In its statement of claim, PR said the unprecedented move was necessary because of the indelible ink fiasco, which it said caused massive cheating in the polls.

Apart from PKR, DAP and PAS, the other plaintiffs are opposition candidates Dr Dzulkefly Ahmad, M. Manogaran, Saifuddin Nasution Ismail and voters Arifin Rahman and R. Rajoo.

Rosnaini said the suit in essence was to challenge the election results because of the EC’s failure to carry out its duties to conduct properly the GE13.

“The power to declare an election void is in the exclusive jurisdiction of an election judge, not with the High Court,” she had said.

She said the suit was also flawed because the plaintiffs did not name as parties all the candidates who won their parliamentary seats.

In the last general election, Barisan Nasional returned to power after winning 133 seats while the remaining 89 seats went to PR.

Rosnaini said the High Court also has no jurisdiction to remove EC members from office. “The EC members can only be removed from office just like a judge of the Federal Court, that is, following recommendations by a tribunal appointed by the Yang di-Pertuan Agong.”

Lawyer Tommy Thomas, who argued for the plaintiffs, had submitted that the EC committed fraud on the Malaysian public as the indelible ink could be washed away for it did not remain on the fingers for five days after voting.

Thomas said the EC’s argument that election results could only be challenged through a petition was tantamount to denying the plaintiff access to justice through other civil actions.

Before filing the suit, PKR vice-president Nurul Izzah Anwar had accused EC chairman Tan Sri Abdul Aziz Mohd Yusuf and his then deputy chairman, Datuk Wan Ahmad Wan Omar, of lying about the indelible ink and making contradictory statements regarding its silver nitrate content.

“We have necessary documents and evidence against the EC. You cannot keep changing your statements regarding the silver nitrate from 5% to 7% to only 1% and later, it is akin to food colouring,” she had told an electoral forum organised by the Malaysian Bar Council.

The report of the People’s Tribunal on the election stated that it was not conducted in a free and fair manner, with many violations to electoral laws.

The tribunal, made up of local and foreign experts, was formed to probe into electoral fraud in GE13.

Bersih 2.0 chairperson Maria Chin Abdullah said the tribunal’s verdict concluded that the EC failed to deliver a free and fair election, and “we do not know whether that has been the case in previous elections”.

She said the election results had been determined because of malapportionment and gerrymandering where a simple majority was guaranteed for BN.

“This can’t continue. We have the evidence and if it continues in the next general election, we will fight back.” – November 18, 2014
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