(Petaling Jaya, Saturday): Congratulations are in order to the judiciary for creating a more level playing field between the citizen and the government, which is an essential first step to restore confidence in the independence, impartiality and integrity of the judiciary.
Yesterday saw the latest in a quartet of judicial decisions and pronouncements in the past five months which gave Malaysians hope that the new Chief Justice of the Federal Court, Tan Sri Mohamed Dzaiddin Abdullah could deliver on his promise that his "first priority" as the highest judicial officer in the land is to restore public and international confidence in the judiciary and "to bring back the judiciary to its past glories".
In Kota Kinabalu yesterday, the Sabah election court judge, Justice Datuk Muhammad Kamil Awang nullified the election result of the Likas constituency in the 1999 Sabah state general elections and declared the victory of former Sabah Chief Minister Datuk Yong Teck Lee null and void and paved the way for a by-election.
In his 29-page judgment, Justice Muhammad Kamil Awang made the shocking disclosure that he had received a directive over the phone that the election petitions should be struck out.
"The only guide to a man is his conscience, the only shield to his memory is the rectitude and the sincerity of his action.
“In my view, it is an insult to one's intelligence to be given a directive over the phone that these petitions should be struck off without a hearing, and, above all, it is with prescience conscience that I heard these petitions.
"God has given me the strength and fortitude, as a lesser mortal, to act without fear or favour, for fear of a breach of oath of office and sacrifice justice, and above all to truly act as a judge and not a 'yes man'."
The Attorney-General, Datuk Ainum Mohamed Saaid should launch a full investigation to identify and prosecute the person who had attempted to suborn justice in issuing a directive to Justice Muhammad to strike off the election petitions without a hearing - and this will be a critical test of the capability and commitment of the Attorney-General’s Chambers to protect the independence, impartiality and integrity of the judiciary when it came under such blatantly unlawful threat.
In his judgement, Justice Muhammad declared that no one, including government departments and institutions, was above the law and referred to "a worrisome trend or culture, not borne out of Malaysian culture, where public institutions or government departments do no seem to care to respond to letters or reports received from the public."
"Regrettably, this is the very antithesis to good governance in as much as a threat to the Government's effort to foster good relationships and integration between East and West Malaysia.
"It has been said that a government is a trustee of the people, and being elected by the people, it owes a higher responsibility to the people."
The judge ticked off the Election Commission for acting illegaly and acting ultra vires the Constitution in allowing non-citizens and “phantom voters” to appear on the Likas electora roll, and raised the question as to the seriousness of the whole Sabah electoral roll being tainted by such unconstitutionality and illegality when he remarked: “The instances of non-citizens and phantom voters in the electoral roll as disclosed at the trial may well be the tip of the iceberg”.
Apart from conducting a by-election for Likas, the Election Commission should immedidately conduct a full-scale nation-wide operation to clean up the electoral rolls in Sabah, Sarawak and Peninsular Malaysia of all non-citizens and phantom voters and satisfy all political parties and the civil society that this is being done promptly and effectively.
In response to the judgement yesterday, Yong Teck Lee described the decision as another challenge in his life as a politician and he looked forward to the prospect of a by-election.
The question is whether Yong is qualified to stand as a candidate in the by-election as the judge has specifically found Yong as having committed election offences of corrupt practice under Section 11 (1) (c) and (d) of the Election Offences Act 1954, causing the judge to declare the election of the Likas constituency null and void.
Section 11(1) of the Election Offences Act 1954 states that any person guilty of a corrupt practice under sub-section © and (d) shall on conviction be liable to six months’ jail and to RM500 fine.
Section 11(2) of the Election Offences Act 1954 states:
“11(2). Every person who is convicted of a corrupt practice shall, subject to any specific provision to the contrary in any written law relating to any election, by conviction become incapable of being registered or listed as an elector or of voting at any election or of being elected at any election, and if at that date he has been elected at any election, his seat shall be vacated from the date of such conviction:
Provided that such disability shall cease on the expiry of five years from conviction or release from imprisonment, which shall be later.”
Although Yong has not been convicted of an election corrupt practice in a criminal trial, the first question is whether the Attorney-General should prosecute him for the two offences which the election judge had found him guilty as to be the basis for the nullifying of the election result - and on conviction, Yong not only cannot stand for elective office for five years, he could not even register and be a voter as well.
Secondly, is it right morally, politically and legally for Yong to contest in the Likas by-election when the election judge has found him guilty of election corrupt practices - as even if Yong is elected in the by-election, his qualification to contest could still be challenged over the Justice Muhammad judgement on him.