The parties to the Pasir Puteh election petition must have thought that a disposal of the case by agreement would be the least contentious option. Judging from the reports and recent letters in malaysiakini, they are proved wrong, perhaps to their chagrin.

Most election judges do not see their role as inquisitor or a commissioner seeking out election irregularities. This was the view of Justice George Seah, when he was election judge in the case of Sabdin Ghani [1983] 2 MLJ 61 in Kota Kinabalu. The judge said, that the election court is a judicial tribunal and not an inquisitorial tribunal armed with powers to inquire or suppress corruption. It is a court to hear and determine according to law.

The election court hears a petition on the merits set out in the documents filed by parties or as reported in the Pasir Puteh case, confirms the agreement reached by the parties. I think this is the first case of this nature.

The petitioner in this case is Barisan Nasional (BN) candidate, Che Min Che Ahmad. The returned candidate was Kalthom Othman from PAS. Kalthom was declared the winner on March 21 with a majority of 3,810 votes. She polled 27, 018 votes while Che Min polled 23,208 votes. The Election Commission (EC) and its returning officer were named in the petition.

We have only press reports to go by. The court apparently did not proceed with the merits of the case. As such, it is highly unlikely that the case would be reported. There was no adequate reporting of the actual grievances and replies to that. There are no independent monitoring of election petition cases by civil society groups.

Election Judge Ramly Ali, sitting in Kota Bahru High Court on Jun 23, accepted the statement of agreed facts of all parties. This included the fact of miscalculation in adding up the figures at the close of polling. The election judge 'nullified' the election result and declared Che Min the winner.

Human error

The miscalculation did not, as most people had initially thought, come to light only at the hearing of the election petition. From snippets in the press, the miscalculation was apparent at the close of polling but only after the incorrect result had been announced. We do not know why the matter was not ever raised by the parties until three months after the fact.

We still do not know the official number of actual votes polled and the votes in favour of Che Min. It was reported on Jun 26 that Nik Aziz Nik Mat said that Che Min had a majority of 405 votes. According to Nik Aziz and Takiyuddin Hasan who is Kelantan PAS legal advisor, the problem was technical.

The election judge said that it was a case of "human error". This point must have been part of the agreed facts as there was no trial of the case.

Section 36 of the Election Offences Act empowers an election judge at the conclusion of a trial to make a determination whether the candidate whose return or election is complained of was duly returned or elected or whether the election is void. This section envisages a trial.

The election judge may do one of three things at the end of a trial. He may declare Kalthom Othman was "duly returned" or "elected" or that the Pasir Puteh election, void. An election is void under three heads in section 32; if Kalthom was not qualified to run, or if there was commission of election offences, or that the election was not conducted in accordance with the law. In all these situations, the court's finding must be based on evidence led by parties.

Nothing has been reported of Kalthom's ineligibility to run or that election offences were committed. If Kalthom cannot be found to be duly returned or duly elected on the evidence, the court has to make a finding that the election is void.

The Pasir Puteh decision suggests that all parties did not think it prudent to lead evidence to show how the Pasir Puteh election did not comply with law or that it was not "conducted in accordance with the principles laid down in such written law and that such non-compliance affected the result of the election." (Section 32 (b)).

If an election is found void, the newly reconstituted section 36 does not allow the election judge to declare the winner. He has to inform the EC of the void election and a by-election has to ensue for that constituency.

There is nothing in the wording of section 36 of nullification and declaration of a winner. It must be that section 36 was not invoked in the Pasir Puteh case. The EC said X and the parties to the petition filed an agreed statement of facts. As there were no contrary allegations which require proof, the matter was settled. The judge "nullified" the election result and "declared" Che Min the winner. There is no question of appeal because the decision is by consent of all parties.

Protecting citizens and constituency

We remain in the dark as to how the miscalculation happened. Assuming that it was human error, we still do not know how that have occurred. And we need to know.

It is important for our independent assessment of the management and supervision of GE2004 to know if the current election laws, procedure and rules set out by the EC or its training of its officers are somehow flawed so as to facilitate such a grave human error.

Sultan Azlan Shah of Perak, when he was election judge in the case of Ali Amberan [1970] 2 MLJ 15, said "It is of significance to note that the primary purpose of the diverse provisions of the election law which at first-hand appear technical is to safeguard the purity of the election process and the courts will not in the ordinary circumstances minimise their operation. It is the concern of the 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."

Justice must not only be done but seen to be done. The election petition is a public process to question an election result. The unhappy state of not knowing has given rise to speculations as to whether GE2004 in relation to Pasir Puteh was free and fair.

Dr Mavis Puthucheary in her letter, Pasir Puteh verdict puts EC in the dock, took issue that the EC chairperson, Abdul Rashid Abdul Rahman advised his returning officer (RO) "to do nothing as only the court can nullify the result".

If one has an understanding of the election laws in force, the election court comes into the picture only if a petition is filed. Assuming that no petition is filed, then we would not have known of the miscalculation. There are other implications.

Dr Puthucheary is one of the project coordinators to an on-going election research project at Ikmas (Institut Kajian Malaysia dan Antarabangsa) of the Universiti Kebangsaan Malaysia (UKM). She avers that there are long-term implications to Abdul Rashid's failure to raise the matter of miscalculation or mistake in tallying the votes, public.

It would mean that a person 'wrongly elected' could sit in Parliament and receive an MP's allowance. It affects the integrity of the party in government. It shows that the EC has no clear procedure of discipline. "If the EC cannot control its own staff how can we expect it to ensure free and fair elections?" she queried.

The fact that Abdul Rashid refused to disclose the contents of the letter which he claimed was from the RO concerned, "only adds to suspicions that there was something that needs to be hidden from the public".

No one expects the EC to be infallible, she says, but these public suspicions or speculations came after what is seen as the fiasco of polling day. GE2004 saw an unprecedented number of allegations of election irregularities which culminated in an unprecedented number of petitions challenging the validity of election results on all sides.

BK Ong of Malvu (Umno, PAS strike deal at voter' expense) raises important concerns for the voter who may be exasperated by decisions taken by their candidates or political parties. This is because, an election petition is seen as one venue by which issues of the election roll, 'phantom voters', wrongly registered voters, wrongly transferred voters, vote-buying and a litany of abuse of the electoral process get to be aired, srutinised and perhaps resolved at law.

Political recourse

However, at law, a petition is a case brought by a petitioner. It is not a public interest litigation where the petitioner represents a section of interested parties. This is at present the reality of the rules of standing or locus standi. The petitioner for whatever reason, may withdraw his case, settle his case or proceed to a trial. The option is legally, his alone. Politically, there may be more than meets the eye.

The voter may of course file an election petition. This is very expensive and can be legally boggling. Many petitions to GE2004 have been withdrawn citing bad drafting or evidence not forthcoming although the papers are drafted by trained professionals and seasoned 'election lawyers'.

PKR has opted for judicial review. A petitioner seeking judicial review asserts that the decision- maker (in this case the EC) inter alia, has misinterpreted or misunderstood the law or has failed to consider the law properly, thereby affecting its decision.

It is settled law that judicial review is an inherent power of the superior courts, a point confirmed by our courts in recent years. It is a supervisory procedure, a remedy in administrative law under the Rules of Court. Judicial review may be invoked by any person who is adversely affected by the misuse of public power. There is no clear boundary to public power. It is established law that the court's supervisory jurisdiction is attracted when public power is involved or even if there is a potential government interest in the decision making power in question.

For the average voter, there is always the political option. The EC is still the body in charge of a free and fair electoral process. It remains the body responsible under the Federal Constitution to manage and supervise the elections. The ball is still in the EC's court. Perhaps we do have to renew our calls for greater transparency and accountability of the EC and a different scrutiny of GE2004 other than through the judicial process.