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Malaysia's Electoral System: Government of the People?

Published online by Cambridge University Press:  16 April 2015

Tsun Hang Tey
Tsun Hang Tey*
Affiliation:
National University of Singapore
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Abstract

This article seeks to examine the constitutional and legal aspects of Malaysia's election laws (within its first-past-the-post electoral system) seen within the broader socio-political context of Malaysia's plural society and ethnic-based political representation to evaluate if they conform to democratic principles and equitable standards. In particular, this article seeks to: (i) explore how the growth of the dominant political elite has had direct implications for the development of Malaysia's electoral regime and arrangements for the holding of democratic elections; (ii) survey the implementation and enforcement of the election laws, including the Elections Act, Election Offences Act, Election Commission Act, Election Petition Rules and Elections (Conduct of Elections) Regulations; (iii) examine the need of immunity for the Election Commission; (iv) examine the role of the judiciary; and (v) highlight the areas for urgent electoral reforms to restore public confidence in the electoral system and ensure the legitimacy of the political system.

Keywords

electoral system
Type
Research Article
Information
Asian Journal of Comparative Law , Volume 5 , 2010 , pp. 1 - 32
Copyright
Copyright © Faculty of Law, National University of Singapore 2010

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References

1 The 1991 Report of the Secretary-General of the United Nations, A/46/609 and Corr. I, para 76.

2 For example, the barring of three opposition party leaders from participating in the 2004 general elections on grounds of criminal convictions related to their political activities: “Three opposition leaders barred from running in Malaysia elections”, AFX Asia, 4 March 2004 Google Scholar. However, one of the accused was later not convicted: “Malaysian court quashes opposition leader's prison sentence on state secrets charge”, Associated Press Newswires, 15 April 2004 Google Scholar. Also, in view of the Prime Minister's prerogative to advise the constitutional monarch to dissolve Parliament and to call for a general election, the ruling coalition can restrict the political campaigning by opposition parties by limiting the campaigning period to polling day to as short as 8 days in the 2004 general elections: “Malaysian Election Commission: Polls to be held Mar 21”, Dow Jones International News, 5 March 2004 Google Scholar; Case, William, “Malaysia's general elections in 1999: a consolidated and high-quality semi-democracy” (2001) 25(1) Asian Studies Review 35 at 38 Google Scholar. The Internal Security Act has also been used by the government to detain opposition party members, presumably to deny them the right to contest in the general elections: Loh, Francis, “Understanding the 2004 Election Results: Looking Beyond the Pak Lah Factor” (2004) 24(3) Aliran Monthly 8 at 10 Google Scholar. It has also been observed by commentators that the Sedition Act 1971, the 1970s amendments to the Constitution and the Elections Act prohibited opposition parties from freely campaigning on certain popular issues such as citizenship: see Mauzy, Diane K., Barisan Nasional: Coalition Government in Malaysia (Kuala Lumpur: Marican & Sons, 1983)Google Scholar.

3 All of Malaysia's mainstream newspapers and the broadcasting media are controlled by the government and it has been widely accepted that these mainstream mass media have been biased in their reports, favouring the ruling coalition and portraying a poor and distorted image of the opposition parties: see Moten, Abdul Rashid, “August 2004 By-election in Terengganu, Malaysia: The Ascendance of Islam Hadhari” (2006) 34(1) Asian Profile 43 at 50 Google Scholar; Anuar, Mustafa K., “The Role of Malaysia's Mainstream Press in the 1999 General Election” in Loh, Francis K.W. & Saravanamuttu, Johan eds., New Politics in Malaysia (Singapore: Institute of Southeast Asian Studies, 2003) 53–65 Google Scholar; Mohd, Tun. Hashim, Suffian et al, The Election Watch Report: the 1990 General Elections (Kuala Lumpur: Election Watch, 1990) 12-4Google Scholar; Anuar, Mustafa K., “The Media Circus Comes to Town” (2004) 24(2) Aliran Monthly 19 Google Scholar.

4 11 states in Peninsular Malaysia and the East Malaysian states of Sabah and Sarawak.

5 See online: <http://www.statistics.gov.my/portal/index.php?option=com_content&view=article&id=54%3A population-updated-31072009&catid=35%3Akey-statistics&Itemid=53&lang=en>.

6 Singapore later separated with the Federation in 1965.

7 Hai, Lim Hong, “Electoral Politics in Malaysia: ‘Managing’ Elections in a Plural Society” in Croissant, A. et al ed., Electoral Politics in Southeast and East Asia (Singapore: Friedrich Ebert Stiftung, 2002) 101 Google Scholar.

8 The Senate (Dewan Negara) and the House of Representatives (Dewan Rakyat).

9 See Puthucheary, Mavis, “Contextualising Malaysian Elections” in Puthucheary, M. & Othman, N. eds., Elections and Democracy in Malaysia (Bangi, Selangor: Penerbit Universiti Kebangsaan Malaysia, 2005) 2–8 Google Scholar.

10 The Barisan Nasional (BN) comprising mainly the United Malays National Organisation (UMNO), the Malayan Chinese Association (MCA) and the Malayan Indian Congress (MIC).

11 Despite the recent setback in the 2008 elections where the ruling coalition lost power in five states in Peninsular Malaysia.

12 Such as the Barisan Alternatif (BA).

13 See Lim Hong Hai, supra note 7 at 102.

14 Ibid.

15 See Mavis Puthucheary, supra note 9 at 3.

16 Lim Hong Hai, supra note 7 at 102.

17 The basic electoral rules were formulated prior to independence, 1957, for the first federal election in the Federation of Malaya in 1955. These basic electoral rules, together with important additions and changes, were then incorporated into the Federal Constitution adopted at the independence. Important amendments were also made to the election laws both before and after the 1963 formation of the expanded Federation of Malaysia.

18 For a brief exposition of the various election offences, see “Elections Offences” (2004) 24(2) Aliran Monthly 29 Google Scholar.

19 Lim Hong Hai, supra note 7 at 103.

20 See Jewa, Tunku Sofiah, Malaysian Election Laws vols. 1-3 (Kuala Lumpur: Pacifica Publications, 2003) 15, 71, 353, 490, 573, 877, 1090, 1267, 1509 and 1871 Google Scholar.

21 See ibid. See also Khoo Boo Teik, “Limits to Democracy: Political economy, ideology and ruling coalition” in Puthucheary, M. & Othman, N. eds., Elections and Democracy in Malaysia (Bangi, Selangor: Penerbit Universiti Kebangsaan Malaysia, 2005) 42 Google Scholar which usefully details the relevant figures pertaining to BN's electoral victory reproduced here in the following manner [year] (percentage of seats won: percentage of votes collected): 1959 (71%: 51.7%), 1964 (86%: 58.5%), 1969 (64%: 49.3%), 1974 (88%: 60.7%), 1978 (84%: 57.2%), 1982 (86%: 60.5%), 1986 (84%: 55.8%), 1990 (71%: 53.4%), 1995 (84%: 65.2%), 1999 (77%: 56.5%).

22 See online: <http://www.spr.gov.my/index/history.htm>.

23 Hai, Lim Hong, “Making the system work” in Puthucheary, M. & Othman, N. eds., Elections and Democracy in Malaysia (Bangi, Selangor: Penerbit Universiti Kebangsaan Malaysia, 2005) 249 Google Scholar.

24 Khoo Boo Teik, supra note 21 at 40.

25 See generally Lee, Goh Ban, “The Demise of Local Government Elections and Urban Politics” in Puthucheary, M. & Othman, N. eds., Elections and Democracy in Malaysia (Bangi, Selangor: Penerbit Universiti ebangsaan Malaysia, 2005) 49 Google Scholar.

26 Ibid at 56.

27 Ibid at 62.

28 Ibid.

29 The general powers and duties of the Election Commission are spelled out under Section 5 of Elections Act 1958.

30 Comprising a chairman and two other members.

31 Article 114(1) today states: “The Election Commission shall be appointed by the Yang di-Pertuan Agong after consultation with the Conference of Rulers, and shall consist of a chairman, a deputy chairman and three other members.”

32 Ibid.

33 Article 115(2) of the Federal Constitution; Section 3 of Elections Act 1958.

34 Comprising a chairman, deputy chairman, and five other members.

35 See online: <http://www.spr.gov.my/index/organization.htm>.

36 Article 114(3) of the Federal Constitution.

37 Article 125 of the Federal Constitution.

38 Article 114(5) of the Federal Constitution.

39 However, the independence and impartiality of the Election Commission has been severely doubted in view of its implementation and operation. For example, the 2004 general elections saw a mere 8 days of campaigning despite constitutional provisions stipulating that elections may be held within 60 days after the dissolution of Parliament: see “The Election Commission is Not Free and Fair” (2004) 24(2) Aliran Monthly 30 Google ScholarPubMed.

40 Article 114(2) of the Federal Constitution.

41 For instance, members of the MCA and the MIC, both of which belong to the Alliance led by the dominant ruling party UMNO.

42 See Lim Hong Hai, supra note 7 at 114.

43 Ibid.

44 Constitution (Amendment) Act of 1960.

45 Article 114(6) of the Federal Constitution.

46 Constitution (Amendment) Act of 1962 (No. 14 of 1962), cl. 21, inserting Article 114(5A).

47 It was observed, however, that subsequent replacements of members were not found to be “flagrantly partisan”: Lim Hong Hai, supra note 7 at 114. It could be surmised that the government is well aware of the controversy that it would attract had it done otherwise, and therefore retreated into a more subtle co-optation exercise in recent decades.

48 Article 114(3) of the Federal Constitution.

49 Tan Sri Abdul Rashid Abdul Rahman. See “Move to let polls panel members stay till 66”, New Straits Times (Malaysia), 21 November 2007 Google Scholar.

50 See “KL approves Bill extending term of election chief”, The Straits Times (Singapore), 12 December 2007 Google Scholar; “Protest march to Parliament foiled; 29 activists detained”, The Straits Times (Singapore), 12 December 2007 Google Scholar.

51 Such dominance far exceeds the requirement of a two-thirds majority for constitutional amendment.

52 “Abdullah warns: Public safety before freedom”, The Straits Times (Singapore), 11 December 2007 Google Scholar. See also “Protest march to Parliament foiled; 29 activists detained”, The Straits Times (Singapore), 12 December 2007 Google Scholar.

53 Jewa, Tunku Sofiah, Malaysian Election Laws vol. 1 (Kuala Lumpur: Pacifica Publications, 2003) 5 Google Scholar.

54 Lim Hong Hai, supra note 23 at 252.

55 No. 14 of 1962.

56 See Constitution (Amendment) Act 1962 (No. 14 of 1962), cl. 31.

57 See also Thirteenth Schedule, clauses 9-11 of the Federal Constitution today.

58 Act A206.

59 The legislature now had the final say on the number of parliamentary constituencies and their apportionment among the states. An example would be the Constitution (Amendment) (No. 2) Act 1984 (Act A585), cl. 14 which amended the number of members for the Federal Territories of Kuala Lumpur and Labuan under Article 46 of the Constitution.

60 Lim Hong Hai, supra note 23 at 253.

61 Thirteenth Schedule of the Federal Constitution.

62 Ibid.

63 Act A585.

64 See Article 113(2)(i).

65 Article 113(3A)(i) reads: “Where the number of elected members of the House of Representatives is altered in consequence of any amendment to Article 46, or the number of elected members of the Legislative Assembly of a State is altered in consequence of a law enacted by the Legislature of a State, the Election Commission shall undertake a review of the division into federal or State constituencies, as the case may be, of the area which is affected by the alteration, and such review shall be completed within a period of not more than two years from the date of the coming into force of the law making the alteration.”

66 See ibid.

67 See for example, Watch, Election, Report on the eighth Malaysian general elections held on 20th and 21st October 1990 (Kuala Lumpur: Election Watch, 1990) 10 Google Scholar.

68 The suggestion of a radical system change to some form of proportional representation is politically not feasible, although it is the only effective way of solving the problem of unfairness in constituency delineation. A complete switch to proportional representation, judging by the past election results, would certainly deprive the ruling coalition of its two-thirds majority. See Lim Hong Hai, supra note 7 at 103.

69 Article 113(2) of the Federal Constitution.

70 See Lim Hong Hai, supra note 23 at 265.

71 It should, however, be noted that apportionment of parliamentary constituencies between the various states are no longer part of the Election Commission's role following the 1973 amendments: see Article 113(2) of the Federal Constitution.

72 Clause 2 of the Thirteenth Schedule to the Federal Constitution.

73 Ibid.

74 Technically, such a principle serves to assign more weight to the rural votes due to difficulties such as accessibility and outreach of the government to electors in the rural areas. However, because most Malay electors are concentrated in the rural areas, the rural weightage principle has been more conveniently exploited to favour Malay-majority parties in the elections. The resulting effect of such ethnic politics is the inclusion of more non-Malay-majority parties (such as the Chinese-based MCA and the Indian-based MIC) into the Alliance (or now the Barisan Nasional) who otherwise would be unable to secure parliamentary and state assembly seats in the government. Today, the ruling coalition has grown from a coalition of 3 parties to a coalition of 14.

75 Clause 2(a) of the Thirteenth Schedule.

76 Clause 2(c) of the Thirteenth Schedule as amended by Constitution (Amendment) Act (No. 2) 1973; it now simply states inter alia: “a measure of weightage”.

77 The maximum weightage on votes allowed was 2:1 for the rural constituencies from 1955 to 1957.

78 Constitution (Amendment) Act 1962.

79 Constitution (Amendment) Act (No. 2) 1973.

80 The result is that a smaller population of the rural voters would lead to a higher weightage assigned to their votes.

81 Lim Hong Hai, supra note 7 at 129.

82 Ibid.

83 Lim Hong Hai, supra note 23 at 268.

84 Lim Hong Hai, supra note 7 at 129.

85 For a detailed study on the percentage of Malay-majority constituencies broken down to the various Peninsular Malaysian states, see Lim Hong Hai, supra note 7 at 131.

86 Lim Hong Hai, supra note 23 at 270.

87 More particularly Sabah: see ibid at 271.

88 Jewa, Tunku Sofiah, Malaysian Election Laws vol. 3 (Kuala Lumpur: Pacifica Publications, 2003) 1871 Google Scholar.

89 See Lim Hong Hai, supra note 23 at 271. For a detailed breakdown of the delimitation exercise, see online: <http://www.aliran.com/oldsite/monthly/2002/8f.html>. It must be noted that the re-delimitation exercise began in early 2002, and was finally approved by parliament with minor changes in April 2003.

90 Ibid. See also “Motion on EC proposal passed”, New Straits Times (Malaysia), 9 April 2003 Google Scholar.

91 Noor, Farish A., Islam Embedded: The Historical Development of the Pan-Malaysian Islamic Party PAS (1951-2003) vol. 1 (Kuala Lumpur: Malaysian Sociological Research Institute, 2004) 72 Google Scholar. See also online: <http://en.wikipedia.org/wiki/Parti_Islam_Semalaysia>.

92 Ming, Ong Kian & Welsh, Bridget, “Electoral Delimitation: A case study of Kedah” in Puthucheary, M. & Othman, N. eds., Elections and Democracy in Malaysia (Bangi, Selangor: Penerbit Universiti Kebangsaan Malaysia, 2005) 316 Google Scholar.

93 Comprising a “predominantly rural Malay majority with pockets of non-Malay urban areas”: ibid.

94 Ibid at 317.

95 Ibid at 321.

96 See online: <http://www.aliran.com/oldsite/monthly/2002/8f.html>.

97 A figure based on the 1999 election results.

98 Ong Kian Ming & Bridget Welsh, supra note 92 at 339.

99 Ibid.

100 Ibid.

101 Compare ibid at 322 with 343.

102 Constitution (Amendment) Act 1962.

103 Article 113(2) of the Federal Constitution.

104 Clause 9 of the Thirteenth Schedule states: “As soon as may be after the Election Commission have submitted their report to the Prime Minister under section 8, he shall lay the report before the House of Representatives, together (except in a case where the report states that no alteration is required to be made) with the draft of an Order to be made under section 12 for giving effect, with or without modifications, to the recommendations contained in the report”.

105 Clause 11 of the Thirteenth Schedule.

106 Clause 11 of the Thirteenth Schedule; this is despite having a bicameral system of government.

107 Clause 5 of the Thirteenth Schedule states: “Where, on the publication of the notice under section 4 of a proposed recommendation of the Election Commission for the alteration of any constituencies, the Commission receive any presentation objecting to the proposed recommendations from (a) the State Government or any local authority whose area is wholly or partly comprised in the constituencies affected by the recommendation; or (b) a body of one hundred or more persons whose names are shown on the current electoral rolls of the constituencies in question, the Commission shall cause a local enquiry to be held in respect of those constituencies”.

108 Clause 7 of the Thirteenth Schedule.

109 Constitution (Amendment) (No. 2) Act 1973.

110 Article 46(2) as amended by Constitution (Amendment) (No. 2) Act 1973, s. 12.

111 Clause 2(c) of the Thirteenth Schedule now states: “the number of electors within each constituency in a State ought to be approximately equal except that, having regard to the greater difficulty of reaching electors in the country districts and the other disadvantages facing rural constituencies, a measure of weightage for area ought to be given to such constituencies”.

112 Constitution (Amendment) (No. 2) Act 1984.

113 Article 113(3A) of the Federal Constitution.

114 Another such anti-democratic example was the abolition of local government elections within every state since the 1960s, and the subsequent replacement of the nominative local government system which eroded grassroots democracy and undermined the transparency of the nomination process which has considerable impact on the interests of the local population and citizens: see Goh Ban Lee, supra note 25 at 49; Mutadir, Heikal Abdul, “Rapping Local Councils” (Sep 16, 2006) Malaysian Business 52 Google Scholar. This “demise” has effectively blocked out and excluded intervention by the Election Commission to administer the local government elections, thereby leaving the filling of local government official seats to the state assemblies who would most probably be politically biased since their members are essentially members from the various contesting political parties in the federal elections. A revival of local democracy is unlikely in spite of recent calls for a re-introduction of elections at the local government levels: “A Thinking Voter's Checklist” (2004) 24(2) Aliran Monthly 22 at 23 Google Scholar.

115 Section 5(1)(a) of the Elections Act 1958.

116 Lim Hong Hai, supra note 7 at 116.

117 See for example Ming, Ong Kian, “Examining the Electoral Roll” in Puthucheary, M. & Othman, N. eds., Elections and Democracy in Malaysia (Bangi, Selangor: Penerbit Universiti Kebangsaan Malaysia, 2005) 294 Google Scholar, estimating a figure of around “230,000 fewer voters in the 1974 electoral rolls compared to the 1972 electoral rolls”.

118 Lim Hong Hai, supra note 23 at 272.

119 Ibid.

120 “Missing voters” has been defined as “qualified and registered persons whose names are improperly missing from the electoral rolls”: see Lim Hong Hai, supra note 7 at 115.

121 “Phantom voters” has been defined as “non-qualified persons who have nonetheless successfully registered and placed themselves on the electoral rolls”: see Lim Hong Hai, supra note 7 at 115. See also Ong Kian Ming, supra note 117 at 304; Salbiah Ahmad, “Some legal aspects of the electoral system” in Puthucheary, M. & Othman, N. (eds) Elections and Democracy in Malaysia (Bangi, Selangor: Penerbit Universiti Kebangsaan Malaysia, 2005) 346 Google Scholar. Sabah has probably the worst such occurrences of “phantom voters” historically with several suspicious surges in registered voters prior to each election: see Loh, Francis K.W., “Electoral Politics in Sabah, 1999: Gerrymandering, ‘Phantoms’, and the 3Ms” in Loh, Francis K.W. & Saravanamuttu, Johan eds., New Politics in Malaysia (Singapore: Institute of Southeast Asian Studies, 2003) 240-2Google Scholar.

122 See for example Ong Kian Ming, supra note 117 at 298, observing further that these residential addresses often indicated multiple registered voters belonging to various racial groups.

123 See Ooi, Jeff, “e-Election? Not so Fast” (1 April, 2004) Malaysian Business 9 Google Scholar.

124 Ibid.

125 Ibid.

126 Such a problem has been occurring in every election. Even in the 2004 elections, there have been reports of inconsistencies in the electoral rolls such as missing voters' names and wrong particulars of voters, thereby hindering the voting process and denying voters of their right to vote on polling day: see ibid; Jasin, A. Kadir, “Improving on the Record” (1 April, 2004) Malaysian Business 7 Google Scholar. See also “Voters ‘not being planted’ in opposition seats”, New Straits Times (Malaysia), 30 November 2007 Google Scholar.

127 See for example, Khoo, Philip, “A Brave New World? Worrying Implications for Democracy” (2004) 24(3) Aliran Monthly 2 at 4 Google Scholar; “Polls chief: I'll quit if there is proof of vote-rigging”, New Straits Times (Malaysia), 20 November 2007 Google Scholar; “Anti-govt groups planning three more protests next month”, The Straits Times (Singapore), 30 November 2007 Google Scholar; “Look at yourself, polls chief tells losers”, New Straits Times (Malaysia), 3 December 2007 Google Scholar.

128 See “Let's talk, Election Commission tells parties”, New Straits Times (Malaysia), 23 April 2007 Google Scholar.

129 See a detailed defence in “Issues in Malaysian Election with Special Reference to Pertinent Aspects of the Electoral Roll System” by Rashid, Ab. bin Rahman, Ab., 2006, Chairman, Election Commission, Malaysia, Ecm 8/9/06Google Scholar.

130 “Commission cannot remove names of ‘dead’ voters”, New Straits Times (Malaysia), 5 December.

131 Ibid.

132 This must nonetheless be substantiated with proof of death of the voter: see ibid.

133 Article 119(4) of the Constitution states that: “qualifying date means the date by reference to which the electoral rolls are prepared or revised”.

134 “Don't Go for Outdated Voting Procedures, says Chia”, Bernama Daily Malaysian News, 4 June 2007 Google Scholar; “Transparency begins with see-through ballot boxes”, New Straits Times (Malaysia), 2 June 2007 Google Scholar.

135 See for example, “Use of indelible ink a ‘backward’ step”, New Straits Times (Malaysia), 6 June 2007 Google Scholar.

136 Section 17(1) of the Elections (Registration of Electors) Regulations 2002.

137 Sections 9 and 9A of the Elections Act 1958. 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”.

138 See Tg Nawawi bin Tengku Ab Kadir @ T Putra lwn Lokman bin Muda & 2 Lagi [1996] 1 CLJ 551 (Unknown Court, Malaysia)Google Scholar, per Abdul Hamid Mohamed H; Salbin bin Muksin v. The Sabah State Election Officer & 2 Ors (and Anor Election Petition) [1999] 4 AMR 4951 (High Court, Sabah and Sarawak (Kota Kinabalu)), per Hasan b. Lah JGoogle Scholar.

139 Section 17 of the Elections (Registration of Electors) Regulations 2002.

140 See definition of “Registrar” under Section 2 of the Elections (Registration of Electors) Regulations 2002 which alludes to Section 8 of the Elections Act 1958 (on “Appointment of officers”).

141 This has been supported by the Bar Council as well: “Bar Supports an Independent Commission of Enquiry” (2004) 24(3) Aliran Monthly 33 Google Scholar. Even the Election Commission chairman has once suggested the need for an independent commission to investigate certain electoral “fiascos” that happened during the 2004 elections. However, such a suggestion was rescinded shortly after: “Current Concerns” (2004) 24(3) Aliran Monthly 35 Google Scholar.

142 Harris Mohd Salleh v. Ismail bin Majin Returning Officer & Ors [2001] 3 MLJ 433 (High Court, Kota Kinabalu), per Muhammad Kamil, J.Google Scholar

143 Article 118 of the Federal Constitution provides: “No election to the House of Representatives or to the Legislative Assembly of a State shall be called into question except by an election petition presented to the High Court having jurisdiction where the election was held”. See also Section 34 of the Election Offences Act 1954.

144 Section 34 of the Election Offences Act 1954.

145 Section 33(1) of the Election Offences Act 1954.

146 Jewa, Tunku Sofiah, Malaysian Election Laws vol. 1 (Kuala Lumpur: Pacifica Publications, 2003) xxii Google Scholar.

147 Section 36 of the Election Offences Act 1954; See also ibid.

148 Tunku Sofiah Jewa, supra note 146 at xxiii.

149 See Part VII of the Election Offences Act 1954, Second Schedule to the Election Offences Act 1954 and the Election Petition Rules 1954.

150 See also Ali Amberan v. Tunku Abdullah [1970] 2 MLJ 15 (Unknown Court, Malaysia), per Raja Azlan Shah, J Google Scholar; Section 28 of the Election Offences Act 1954.

151 [1967] 2 AC 31 (Privy Council).

152 Second Schedule to the Election Offences Act 1954; Rule 15 is on “Notice of petition and copy of petition to be served on respondent”.

153 Chong Thain Vun v. Watson & Anor [1968] 1 MLJ 65 Google Scholar; Muib bin Tabib v. Dato James Wong [1971] MLJ 246 (Unknown Court, Malaysia), per Lee Hun Hoe, J Google Scholar; Sabdin Ghani v. Mohamed Saidi Lampoh [1983] 2 MLJ 61 (Unknown Court, Malaysia), per Seah, J Google Scholar; Rhina Bhar v. Karpal Singh [1995] 4 CLJ 642 (High Court Malaya, Penang), per Dato', Tan Sri Dato', Anuar bin CJ, Zainal Abidin (Malaya)Google Scholar.

154 [2000] 3 MLJ 218 (High Court, Kuala Lumpur), per Augustine Paul J.

155 Arguably, it also cannot be a binding authority on later decisions simply because there is no express right of appeal within the existing Malaysian election laws.

156 [1995] 4 CLJ 642 (High Court Malaya, Penang), per Tan Sri Dato' Anuar bin Dato' Zainal Abidin CJ (Malaya).

157 [1999] AMR 4951 (High Court, Sabah and Sarawak (Kota Kinabalu)), per Hasan b Lah J.

158 [2000] 2 MLJ 550 (High Court, Kuala Lumpur), per Augustine Paul J.

159 Muip bin Tabib v. Dato James Wong; Wan Hamid bin Tuanku Surur v. Francis Loke [1971] 1 MLJ 246 (Unknown Court, Malaysia), per BTH Lee, J Google Scholar; Yusoff bin Abdul Latib v. Haji Adnan bin Haji Ramli & Anor [1992] 1 MLJ 297 (High Court, Penang), per Mohamed Dzaiddin, J.Google Scholar

160 Re Tanjong Puteri Johore State Election Petition; Abdul Razak bin Ahmad v. Datuk Md Yunos bin Sulaiman & Anor [1988] 2 MLJ 111 (Unknown Court, Malaysia), per Wan Yahya, J Google Scholar.

161 Mohamed Jaafar v. Sulaiman & Anor [1970] 1 MLJ 181 (Unknown Court, Malaysia), per Chang Min Tat, J Google Scholar; Wan Daud bin Wan Jusoh v. Mohamed bin Haji Ali & Anor and Daud bin Jusoh v. Annuar bin Haji Musa & Anor and Mohd Nor bin Ismail [1988] 2 MLJ 384 (Unknown Court, Malaysia), per Wan Yahya, J Google Scholar; Yeoh Khoon Chooi v. Patto A/L Perumal & 2 Ors [1995] 4 CLJ 811 (High Court Malaya, Penang), per Dato', Tan Sri Dato', Anuar bin CJ, Zainal Abidin (Malaya)Google Scholar.

162 Section 32(b) of the Election Offences Act 1954 provides: “The election of a candidate at any election shall be declared to be void on an election petition on any of the following grounds only which may be proved to the satisfaction of the Election Judge… (b) non-compliance with the provisions of any written law relating to the conduct of any election if it appears that the election was not conducted in accordance with the principles laid down in such law and that such non-compliance affected the result of the election”.

163 [1970] 1 MLJ 181 (Unknown Court, Malaysia), per Chang Min Tat J.

164 [1965] 2 MLJ 18 (Unknown Court, Malaysia), per Ismail Khan J.

165 In any event, the root of the problem lies in statutory ambiguity, and uncomfortable decisions like Ishak Hamid v. Mustapha could have otherwise been avoided and be more convincing if the wording of the relevant election laws were clear enough.

166 [1988] 2 MLJ 111 (Unknown Court, Malaysia), per Wan Yahya J.

167 [1966] 2 MLJ 187 (Unknown Court, Malaysia), per Harley CJ.

168 [1961] MLJ 67 (Unknown Court, Malaysia), per Smith J.

169 The independence of the judiciary in Malaysia has also been criticised since the sacking of the former Lord President Tun Salleh Abbas in 1988.

170 [1981] 1 MLJ 265 (Unknown Court, Malaysia), per Abdoolcader J.

171 [1992] 1 MLJ 697 (Supreme Court, Kuala Lumpur), per Abdul Hamid Omar LP, Gunn Chit Tuan SCJ and Edgar Joseph Jr SCJ.

172 Election Petition No PP-1-2000, per Augustine Paul, J. See also Ramely bin Mansur v. Suruhanjaya Pilihan Raya [2000] 2 MLJ 550 (High Court, Kuala Lumpur) where Augustine Paul, J Google Scholar referred to his own judgment in Lee Chong Meng (No. 1) saying that the Election Commission is not an appropriate party to be made a respondent in an election petition.

173 See “Let's talk, Election Commission tells parties”, New Straits Times (Malaysia), 23 April 2007 Google Scholar.

174 Section 10 of the Election Commission Act 1957.

175 Section 9 of the Election Commission Act 1957.

176 Section 5 of the Election Commission Act 1957.

177 [1996] 4 MLJ 261 (High Court, Sibu), per Charles Ho J.

178 [1993] 3 MLJ 533 (High Court, Kuala Terengganu), per Lamin J.

179 [1967] 2 AC 31 (Privy Council). Lord Upjohn, however, underlined the point that the Privy Council would be reluctant as a general rule to entertain interlocutory appeals, especially in election petitions, unless the case raised was of exceptional public and general importance.

180 [1979] 2 MLJ 143 at 146 (Unknown Court, Malaysia), per Mohamed Zahir J.

181 See generally, Das, Cyrus, “Elections laws and the compelling areas for reform in Elections and Democracy in Malaysia” in Puthucheary, M. & Othman, N. eds., Elections and Democracy in Malaysia (Bangi, Selangor: Penerbit Universiti Kebangsaan Malaysia, 2005) 380 Google Scholar.

182 Ibid.

183 Moten, Abdul Rashid & Mokhtar, Tunku Mohar, “The 2004 General Elections in Malaysia: A Mandate to Rule” (2006) 46(2) Asian Survey 319 at 328 CrossRefGoogle Scholar.

184 Section 4A reads: “Any person who. does any act or makes any statement with a view or with a tendency to promote feelings of ill-will, discontent or hostility between persons of the same race or different races or of the same class or different classes of the population of Malaysia. shall be liable, on conviction, to imprisonment for a term not exceeding five years or to a fine not exceeding ten thousand ringgit or to both such imprisonment and fine”.

185 See “Vote for Democracy” (2004) 24(2) Aliran Monthly 40 at 34Google Scholar; “New Rules and Constituencies for New Challenges?” (2003) 23(6) Aliran Monthly 7 Google Scholar.

186 Khoo Boo Teik, supra note 21 at 40.

187 Election Watch, Report on the eighth Malaysian general elections held on 20th and 21st October 1990 (Kuala Lumpur: Election Watch, 1990) 10 Google Scholar.

188 Ibid at 12. See also Lim Hong Hai, supra note 23 at 275.

189 An informal group comprising a few members who aim to restore free and fair elections through communication and collaboration with the Election Commission: see supra note 187 at i.

190 Lim Hong Hai, supra note 23 at 275.

191 Ibid.

192 Ibid at 274.

193 Lim Hong Hai, supra note 7 at 136.

194 Ibid at 104.