Last Saturday, the Sabah election judge Justice Datuk Muhammad Kamil Awang in the Likas election petitions declared Yong’s election as the State Assemblyman for the constituency in the Sabah state general elections on 13th March 1999 null and void, and among other things, he found Yong had committed an offence under section 11(c) and (d) and section 32 of the Election Offences Act 1954.
Section11(c) spells out the corrupt practice where any person “prints, publishes, distributes or posts up or causes to be printed, published, distributed or posted up any advertisement, handbill, placard or poster which refers to any election and which does not bear upon its face the names and addresses of its printer and publisher” while Section 11(d) refers to the corrupt practice where any person “makes or publishes, before or during any election, for the purpose of affecting the return of any candidate, any false statement of fact in relation to the personal character or conduct of such candidate”.
There are at least four consequences of this finding for
Although Section 11(2) stipulates that the disability starts from the “conviction” of a person found guilty of a corrupt practice, Section 37(3) imposes such a disability to take immediate effect when an election judge makes a finding in an election petition that a person has committed such a corrupt or illegal practice.
Section 37(3) reads:
“37(3). When an Election Judge reports that a corrupt or illegal practice has been committed by any person, that person shall be subject to the same incapacities as if at the date of the said report he had been convicted of that practice and a person shall be subject to the same incapacities if he was a candidate at the election and the Election Judge reports that such corrupt or illegal practice was committed with his knowledge and consent or by his agent.”
Section 37(1) states that “at the conclusion of the trial of an election petition”, the Election Judge shall report in writing to the Election Commission in the case of an election of a person to be a member of the Dewan Rakyat, a Legislative Assembly… or of any other election that the Election Commission may be authorized to conduct.
In this case, although the election judge would be reporting in writing to the Election Commission on the disqualification of Yong as Likas state assemblyman, the report would have direct and similar bearing on the disqualification of Yong as MP for Gaya.
The Likas by-election dates for nomination and polling are scheduled to be announced by the Election Commission today, which means that the Gaya parliamentary seat should also be deemed as vacant on the same date the Election Commission received the report from the election judge.
If the Election Commission has any doubt about whether and when the Gaya parliamentary seat had become vacant, it should apply to the court for a declaration of the status of the parliamentary seat of Gaya as it is not in the public interest that the status of the Gaya parliamentary seat is left in limbo.