Court turns a blind eye to justice

P Ramakrishnan
Immediate past president, now Aliran executive committee member
27 March 2013

Malaysians were rudely shocked to learn that the High Court in Shah Alam put itself in a straitjacket and refused to see the glaring injustice that was clearly highlighted by Klang MP Charles Santiago in a suit that was decided on 14 March 2013.

Mr Santiago wanted the Court to review the principal and supplementary electoral rolls for his parliamentary constituency.

It was very disappointing that Judge Vernon Ong said that the Court was bound by Section 9A of the Elections Act 1958 and cannot review a gazetted electoral roll, literally throwing to the wind the conventional wisdom that “where there is a malady the Court will provide a remedy” – even if it has to use its inherent powers.

The Judge further noted that the Court could not compel the Election Commission (EC) to respond to the queries of the MP as there was no provision in the Act for it to do so. While it may be true that there is no such provision, what is far more important is whether there is specifically any provision in the Act prohibiting the EC from responding?

Why was this logical point entirely overlooked by the Court? If the Court was the bastion of justice as provided by the inherent powers of providing a remedy for a malady, it would have been the natural consequence to fall back on this logic. But surprisingly, this was not the case.

While it may be true that the Court was bound by Section 9A of the Election Act, shouldn’t the Court invoking its overview functions have also looked into the legality of this section?

Is it constitutional? Is it constitutional to perpetuate a wrong in spite of fraud, probably even of a criminal nature, that were clearly established by Mr Santiago?

Section 9A was controversially introduced to the Elections Act 1958, after the High Court in Kota Kinabalu declared the Likas by-election of 2001 null and void. The Kota Kinabalu High Court nullified the Likas by-election because there were discrepancies in the electoral roll.

Section 9A states: “After an electoral roll has been certified or re-certified, as the case may be, and notice of the certification or re-certification has been published in the Gazette as prescribed by regulations made under this Act, the electoral roll shall be deemed to be final and binding and shall not be questioned or appealed against in, or reviewed, quashed or set aside by, any court.”

This is what lawyers call a “privative” or “ouster” clause. The effect is to prevent any Court from having a review of the matter at hand. In this particular case, it has to do with the electoral rolls.

Courts in many common law jurisdictions have always viewed such privative or ouster clauses in a very dim light as such clauses effectively prevent the judiciary from discharging its independent role under the doctrine of the Separation of Powers as arbiters of rights and duties vis-à-vis citizens and the State.

In our view, this “deeming” section was introduced so that the Barisan Nasional can win elections through phantom voters and by cheating. By placing this fraud beyond the purview of the Courts, the BN government has legitimised winning of elections through fraudulent means.

The injustice is so obvious and glaring. How could a Court not address this issue even in passing?

Mr Santiago has provided solid proof that the names of those who had not registered as voters were found in the electoral roll. How could this happen?

He had pointed out the case of one Premila Menon, who resides in Dublin, Ireland. She had not registered as a voter; yet her name appears on the electoral roll. He had further produced a Statutory Declaration from a Pandamaran resident stating that he is the only voter registered at his address but another 60 voters of other races are mysteriously listed under this same address.

These two cases clearly establish the irrefutable fact that the electoral roll is padded with dubious voters.

The electoral roll is not clean and yet these dubious voters can vote in the coming 13th General Election. In the case of Premila Menon, someone else can assume her identity and vote in the election. This was how the BN candidate in the Likas by-election got elected.

Even though the Court said it was helpless because of the seemingly prohibitive Section 9A, surely it could have pointed out the injustice perpetuated by this section. It could have taken judicial notice that there are phantom voters on the roll. The Court cannot ignore this gross injustice and turn a blind eye to this grievous wrong as the legitimacy or otherwise of the popular mandate is intrinsically bound to the sanctity or otherwise of the roll per se.

To dismiss Mr Santiago’s justified application as frivolous and vexatious is to add salt to the injury. It is a travesty of justice.

Is this a forerunner of things to come post-election?

Even if the existence of unaccountable dubious voters on the electoral roll (that may contribute to a BN victory in certain seats) is subsequently established beyond reasonable doubt, the Pakatan Rakyat cannot challenge this. It cannot win because cheating has been legitimised. The BN will win the case and the PR will lose its challenge in any court of law in Malaysia.