The Election Commission (EC) today said it cannot disqualify the Barisan Nasional (BN) candidate for the Batu Talam by-election because it has no power to act on complaints based on its election code of ethics.

"The code of ethics is just a guideline for candidates contesting in the election, we can't disqualify anyone based on that," returning officer Abdul Kadir Awang Bakar told malaysiakini when contacted today.

Nevertheless, Abdul Kadir said the EC has acted on the complaint by independent candidate Ng Chee Pang against BN's Abdul Aziz Kiram for allegedly abusing government machinery in his campaign.

"Our enforcement team has taken down posters (of the BN candidate) that were hung at the fence of a government school," he said, while confirming that the EC had received Chee Pang's written complaint.

Explaining why no further action can be taken, he said: "The posters were not put up by the (BN) candidate himself... perhaps it was 'accidentally' put up by his supporters and not everyone knows the law."

Since the posters have been taken down, Abdul Kadir argued "the case is closed".

Contacted for immediate response, Chee Pang's campaign manager, his father Kwi Ling, disputed the EC's decision.

"If we had been the ones to breach the code of ethics, we would have been disqualified. We were told by the EC during a briefing with candidates after the nomination that we have to adhere to the code or we would be disqualified," said Kwi Ling, a former state DAP leader.

He reiterated that his son will discontinue campaigning if the EC does not act impartially in dealing with the complaint.

In his second complaint lodged with the EC yesterday, Chee Pang said he has furnished photographic evidence to show that the rival camp was using a government school' facilities, as well as police and local council trucks for campaigning.

Chee Pang had quipped that was tantamount to using "cannon and fighter jets" against his three-member campaigning team - his father and brother who double as his campaign manager and photographer.

Silence of the law

The election code of ethics prohibits candidates and their party or election workers from using government buildings for campaigning unless written permission has been obtained. They are

also barred from using vehicles or communication devices belonging to the state or government.

However, the code also clarifies that it is a guideline and that its provisions are subject to existing laws and regulations, pointed out activist Wong Chin Huat who has studied the Malaysian electoral system.

This renders certain provisions in the code as not enforceable whenever the law is silent such as on the abuse of government machinery, added Wong - a research fellow with the Universiti Kebangsaan Malaysia's Institute of Malaysian and International Studies.

"Under our laws, abuse of government machinery during an election campaign is not criminalised. The need to make it an offence has been emphasised time and again by electoral reform bodies," he said.

While the code spells out the do's and don'ts for nomination, polling, counting and tallying of votes and announcement of results, Wong pointed out it does not touch on expenditure by candidates.

When contacted, Malaysians for Free and Fair Elections chief Abdul Malek Hussin said the EC enforcement team is duty-bound to monitor activities throughout the election period and act immediately when complaint is made.

"The enforcement team should be translating the do's and don'ts into action, it can't be sleeping on these matters," he said.

The by-election, called following the death of BN's Tengku Paris Tengku Razlan last month, is scheduled for Sunday, unless flooding forces a postponement. The Malay-majority seat is a BN stronghold.