Despite the damning testimonies emanating from the Sabah royal commission of inquiry (RCI) over the issue of foreigners being made citizens last week, one thing is certain that the current RCI is not a lawful excuse to postpone elections.
What the voters and political parties can still do is to challenge the results via election petition once the GE13 results is announced.
That being the case, Bar Council chairperson Lim Chee Wee (left) said that what should be done between now and the GE13, is for the Election Commission (EC) to investigate or request the relevant authorities to do so, and clean up the electoral roll.
“In the law, the RCI is not a lawful excuse to postpone elections,” he said.
Lim also said that the law governing the deadline for the general election is clearly prescribed in the federal constitution under Article 55, and that the Sabah state constitution has a similar provision under Article 21.
The federal and Sabah state constitutions state that the Yang di-Pertuan Agong, or in the case of Sabah, the Yang di-Pertua Negeri may prorogue or dissolve the Parliament or state legislative assembly after five years from its first meeting, and shall then stand dissolved.
Following this, elections must be held within 60 days of the dissolution, and the Sabah constitution states that the new state assembly must be called within 120 days from the dissolution.
“Therefore, the general election cannot be postponed beyond 60 days from the date of dissolution,” said Lim.
EC can investigate with RCI on-going
In the present circumstances, Lim said that the EC has a statutory duty to clean up the electoral roll under Section 5 of the Elections Act 1958, which provides the commission to exercise control and supervision over the conduct of elections and the registration of voters on its rolls.
“This being the case, the EC must investigate or request for the relevant powers or authorities to do so, since it has a statutory duty, which includes supervising the conduct of elections. The EC has to stop giving excuses and perform its statutory and constitutional responsibilities,” he said.
Lim said that the EC had been aware of the voters’ discrepancy as highlighted in the Likas case in 2001, following the judicial findings. However, it had done nothing since then, before the people started pressuring for the RCI.
“The fact that the EC did not act on the judicial findings and is now trying to hide behind an alleged contempt not to say anything, is a dereliction of its duty,” said Lim.
“Secondly, the EC can independently investigate the serious allegations made by the witnesses during the RCI (without waiting for the commission to complete its report). On-going investigations by the EC is not considered as contempt,” he said.
The EC, Lim claimed, misunderstood contempt laws, as Section 14 of the Commission of Inquiry merely provides what is described below, and therefore, EC is not in contempt if it conducts independent investigations.
Section 14 states the following shall be deemed to be an act of contempt within the meaning of section 13 of the Act:
(a) any act of disrespect or any insult or threat offered to the commissioners or any of them while sitting in Commission; and
(b) any act of disrespect or any insult or threat offered to a commissioner at any other time and place on account of his proceedings in his capacity as a commissioner.
Challenge via petition
In the meantime, Lim said the elections’ results for a particular constituency can only be challenged by way of an election petition with the necessary evidence, which based on the RCI, requires the EC with all its powers to investigate the integrity of the electoral roll.
When asked whether this may create a situation, whereby the whole of Sabah’s GE13 results (or quite likely a majority of the seats), were to be challenged and hence, affect the outcome of the elections, Lim said it is possible if the RCI evidence is detailed to reveal names and which constituencies.
“In an election petition, the person challenging the results must disclose particulars of the phantom or ineligible voters,” he said.
As with the Likas case which saw 4,585 cases of objections raised over people having dubious identity cards, or people who had been convicted of having fake identity cards.
The presiding judge noted that people who raised the objections were exercising their rights as citizens, and it was unthinkable that the EC should shut off the objection.
“It is a constitutional wrong for the EC to have rejected the objections outright. More importantly, it is wrong for the EC 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 ultra vires the constitution and is in fact illegal,” ruled Justice Muhammad Kamil Awang.