Polls petitions - justice for all and counting the cost

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I find the recent and ongoing court decisions to dismiss the numerous election petitions based on preliminary objections highly disturbing.

Firstly, after GE13, Pakatan Rakyat has been organising a series of road shows to highlight the deficiency of the current electoral system and the unsatisfactory performance of the Election Commission (EC) in conducting GE13. This series of road shows is also known as ‘Blackout 505’.

The government and BN politicians have been quick to lash out at Blackout 505 and constantly remind Pakatan of the option to file election petitions as an appropriate legal remedy open to those dissatisfied with the results. Altogether Pakatan has filed 35 election petitions challenging the result of 25 parliament seats and 10 state seats won by BN in GE13. BN on the other hand has filed 21 election petitions.

Now that the respective parties have filed in their petitions, nearly all the petitions were dismissed on preliminary objections and on pure technical grounds without hearing the actual merit of the case.

I am perplexed with this trend as parties are denied the right to hear their grouses. Genuine complaints and electoral fraud evidences would not be able to see the light of the day. It is a judicial trend for the courts to sidestep technical objections so as to give the litigants their day in court. I think it is safe to say that this is the basis of natural justice.

Regrettably, even now there is currently a dearth of legal literature in Malaysia’s election law. Dismissing cases on technical ground further stifle the growth of legal precedents and development in this area

Secondly, the costs awarded in these cases are also exorbitant. In dismissing the Kuala Berang election petition filed by PAS, the court awarded RM50,000 each to the three named respondents. Altogether the petition is required to pay RM150,000 for a case that is only decided by preliminary objection.

To put this in perspective, the Kota Kinabalu High Court only awarded costs of RM80,000 in the case of Harris Mohd Salleh v Ismail Bin Majin, Returning Officer and Others [2001] 3 MLJ 433 (annulment of Likas Election result) and even that is after a staggering 28-day trials with numerous witnesses being called and copious of documents being tendered and perused.

Across the country, other petitions were also dismissed with exorbitant costs awarded. I feel the high costs awarded will only discourage the filling of election petitions in the future.

I urge the Chief Justice of Malaysia to immediately clarify the rationale for the dismissing of numerous election petitions on technical grounds and with exorbitant cost.

Thirdly, BN supporters are quick to point out that their petitions were also dismissed with costs on technical grounds and the court is fair and consistent in dismissing petitions from both sides.

Well, two wrongs don’t make a right. Justice is not about equalising decisions, on the contrary; it is about pursuing both parties interest. Instead of dismissing, the court should have allowed both the BN and Pakatan petitions to be heard on merit.

That, I think, would be the fairest course of them all.

JIMMY PUAH WEE TSE is the PKR Johor state assemblyperson for Bukit Batu and head of the Johor PKR Legal Bureau.

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