Promising money during polls ‘not bribery’?

A lawyer argues that promising "more money" if a certain candidate wins a seat is not an offence under the Election Offences Act 1954.

KUALA LUMPUR: It is hard to prove corrupt practices in an election petition, a well known solicitor told a Bar Council Forum today.

Azahar Azizan Harun said even promising “more money” to voters if a certain candidate wins does not constitute an offence.

Citing the case of Pengkalan Kota by-election in 1981, Azhar said the then Finance minister while canvassing for the Barisan Nasional candidate Lim Khean Siew, allegedly said on record that he “would give more money to improve Pengkalan Kota” if the BN won the seat.

An election petition was later filed based on the statement, which was seen as tantamount to bribery.

However presiding over the election petition hearing later, High Court Judge Eusoffe Abdoolcader ruled that it did not constitute an offence under Election Offence Act 1954 because the promise was not made in a personal capacity.

“The judge said it was made in his capacity as finance minister, and it wasn’t a promise to any particular electorate, but to a particular class of the society.

“Our courts seem to have a constrained definition of corrupt practices…the judgment seems to suggest that if it (money) is meant to a particular class of the society and not an individual, then it is okay,” he said.

He also said judges hearing election petitions would also consider if the voters, themselves, had promised to vote for the candidate who had dished out cash.

“If the voter did not promise to vote for the candidate in return (for money), then it is not an offence,” he said.

The words of corrupt practice was again redefined in a petition filed for the Kubu Gajah state seat in 2009, when the Federal Court judge ruled that there must be an element of bargaining of votes involved.

“Not every gift promised to voters will attract votes. In another word, any gift should be made asking for votes in return.

“A promise or offer that was not made to any particular voters is not corrupt practice,” he said.

The Kubu Gajah petition was filed by PAS’s Mohd Nazri Din against the winner, Umno’s Raja Ahmad Zainuddin Raja Omar.

“Tian Chua may be disqualified”

He said the burden is stacked up against the complainant in an election petition as the petitioner has to prove the following grounds;

i) Bribery, threats and general intimidation was so extensive that it had reasonably affected the election results.

ii) Non compliance of election regulations.

iii) That the corrupt practice was committed by the candidate, his agent, or anyone else with the knowledge and consent of the candidate.

iv) That a candidate personally engages a person as an agent knowing that the person had been convicted in court in the past seven years.

v) That the candidate was at the time of nomination not qualified to contest the election.

Elaborating on the last ground, Azahar said BN is challenging the qualification of Batu MP and PKR vice president Tian Chua because the latter was convicted in an ear-biting case two years ago.

“They are consulting the Federal Court to see whether the sentence Tian receives will disqualify him.

“If the Federal Court says it will, then the election court would have no choice but to disqualify him,” he said.

The 46-year old Batu MP was sentenced to six months jail and fined RM3,000 by a Kuala Lumpur magistrate’s court for biting a policeman in 2009.

Magistrate Mohd Faizi Che Abu then had allowed Tian’s stay of execution of sentence pending his appeal and released him on bail.

Tian Chua was charged under Section 332 of the Penal Code for voluntarily causing hurt in biting constable Rosyaidi Anuar at the entrance to the Parliament complex at 10.45am on Dec 11, 2007.

Azhar also said that a judge hearing an election petition can compel a witness to appear in court.

“The judge may decide, in his or her call, any person that he or she likes to appear in court. He or she can then hear the witness although no questions are posed by either contending parties,” he said.

He said an election judge is bound to dispose of a petition in 6 months, and those who are not satisfied with the results can appeal to the Federal Court, which would consists minimal 3 judges.

Leven Woon