Harris Mohd Salleh v.

The Returning Officer,

[2001] 3 CLJ Ismail Majin & Ors (And Another Petition) 161

HARRIS MOHD SALLEH a

v.
THE RETURNING OFFICER,
ISMAIL MAJIN & ORS (AND ANOTHER PETITION)
b
HIGH COURT SABAH & SARAWAK, KOTA KINABALU
MUHAMMAD KAMIL AWANG J
[ELECTION PETITION NO: K5-1999]
8 JUNE 2001
ELECTION: Petition - Allegation of corrupt and illegal practices - Billboards c
erected on eve of polling day - Whether false statements made about petitioner
therein - Whether the absence of printer’s name and address an offence under
the Election Offences Act 1954 - Whether respondent responsible for erection
of billboards - Whether election null and void - Election Offences Act 1954,
s. 11(c), (d) and s. 32 d

ELECTION: Petition - Allegation of corrupt and illegal practices -

Registration of non-citizens and persons convicted of possession of fake identity
cards in electoral roll - Failure by Election Commission to hold a public
inquiry upon objections raised thereto - Whether improper - Whether identity
e
cards are proof of citizenship - Whether police report lodged on phantom
voters should have been acted upon - Whether electoral roll rendered illegal
- Election (Registration of Electors) Regulations (Sabah) 1971 - National
Registration Act, s. 35(1)(e) - Federal Constitution, art. 119(1)
There were two election petitions that were consolidated before the court f
arising out of the Sabah State Election held on 13 March 1999. The election
petitions concerned the Likas Constituency and both the petitioners lost to one
Datuk Yong Teck Lee (‘the respondent’) in the said election.
The issues were: (1) whether the respondent was responsible for the erection
g
of four huge billboards containing false statements about the petitioner Datuk
Harris; (2) whether the absence of the printer’s name and address on the said
billboards was an offence under the Election Offences Act 1954 (‘the Act’);
and (3) whether the electoral roll for the Likas Constituency was complied
contrary to the Constitution and Laws of Malaysia by the registration of non-
citizens and persons convicted in court for possession of fake identity cards. h

Held:
[1] Based on the facts and evidence, the statements made about Datuk Harris
in the billboards, in particular the allegations that he had, whilst on power,
surrendered Sabah’s oil revenue to a statutory body known as Petronas i
and sold Labuan to the Federal Government to be false. Also, the
allegation that he had led the riot in 1986 in Sabah was not proved.
 162 Current Law Journal [2001] 3 CLJ

a [2] There was evidence to show that the huge billboards were erected by the
respondent’s agents on the eve of the polling day and hastily dismantled
almost immediately after the close of polling the following day. Further,
investigations revealed that the billboards were printed upon the instruction
and direction of the respondent’s agents. Although there was no evidence
b to show that the respondent had no such knowledge, the work of his
agents in erecting those billboards could be imputed to the respondent.
[3] The absence of the printer’s name and address in the billboards and the
publication of false statements of facts are offences under s. 11(c) and
(d) of the Act. Both the acts prohibited by the said sub-sections are
c classified as corrupt practice and corrupt practice is proved without any
need to examine whether such an act had in fact affected the result of
the election (s. 32(a) of the Act).
[4] Under s. 32 of the Act the grounds to declare an election void should be
d proved to the satisfaction of the court. This also applied to s. 11 of the
Act. Based on authorities, what constitutes to the satisfaction of the court
depends on the circumstances of each case and on a balance of
probabilities. Here, as the allegations were proved on a balance of
probabilities, the respondent was found to have committed the offences
under s. 11(c) and (d) and s. 32 of the Act, as a result of which the
e
election of the Likas Constituency was rendered null and void.
[5] By virtue of the Election (Registration of Electors) Regulations (Sabah)
1971, the Election Commission (‘SPR’) has to hold a public inquiry if
any voter files an official objection against the inclusion of a particular
f person. However, in this case, no such public inquiry was held pertaining
to the objections raised against the inclusion of persons having dubious
identity cards or of persons convicted of possession of fake identity cards.
The people who raised the objections were exercising their rights as
citizens and it was constitutionally wrong for SPR to reject them. More
g importantly, it was wrong for SPR to allow non-citizens and disqualified
persons to be on the electoral roll.
[6] The identity card is not proof of citizenship and the fact that SPR took
into account not only persons with identity cards for registration but also
those with temporary identity cards showed much abuse on its part.
h Furthermore, no action was taken by the police on the report lodged
regarding the existence of phantom voters in the electoral roll. It followed
therefore that the 1998 electoral roll for the Likas Constituency was illegal.

i
 Harris Mohd Salleh v. The Returning Officer,
[2001] 3 CLJ Ismail Majin & Ors (And Another Petition) 163

Per curiam: a

[1] The instances of non-citizens and phantom voters in the electoral roll as
disclosed in this trial may be the tip of the iceberg. It could not be denied
that the registration of voters in the Likas electoral roll was in
contravention of the law. No one including the government department is
b
above the law.
[2] It is common knowledge that an influx of illegal immigrants has plagued
Sabah for some years. The SPR ought to be aware of the said influx, and
when the said objections were raised, the SPR should have held a public
inquiry as prescribed by the election laws. c

[3] A worrisome trend or culture not borne out of Malaysian culture has
evolved where public institutions or government departments do not seem
to care to respond to letters or reports received from the public. Such
letters or reports seemed simply ignored, invariably no response or
acknowledgement or receipt whatsoever has been made. Regrettably, this d
is the very antithesis to good governance in as much as a threat to the
government’s effort to foster good relationship and integration between
East and West Malaysia.
[Petitions allowed with costs to petitioners.] e
Case(s) referred to:
Abd Hamed Mamat v. Uz Baharudin Mohd & Ors [1993] 1 AMR 1 (foll)
Ali Amberan v. Tunku Abdullah [1970] 2 MLJ 15 (refd)
Datu Mustapha Datu Harun v. Tun Datuk Hj Mohd Adnan Robert [1986] 2 MLJ
420 (foll) f
Davies v. Thomas [1920] 2 Ch 189 (refd)
Eastern Enterprises Ltd v. Ong Choo Kim [1969] 1 MLJ 236 (refd)
Gurdial Singh Nijar v. KS Balakrishnan [1993] 2 CLJ 75 (refd)
Hamad Mat Noor v. Tengku Sri Paduka Raja & Ors [1993] 4 CLJ 135 (foll)
Lau Hee Teah v. Hargill Engineering Sdn Bhd & Anor [1980] 1 MLJ 145 (refd)
Marrinan v. Vibari [1962] 1 All ER 871 (refd) g
Morgan & Ors v. Simpson & Anor [1974] 3 All ER 722 (foll)
Re Ranjong Puteri Johor State Election Petition, Abdul Razak Ahmad v. Datuk Md
Yunos Sulaiman & Anor [1988] 2 MLJ 111 (foll)
Shen Yuan Pai v. Dato’ Wee Hood Teck & Ors [1976] 1 MLJ 16 (foll)
Sorrell v. Smith & Ors [1925] AC 700 (refd)
Wong Sing Nang v. Tiong Thai King [1996] 4 MLJ 261 (refd) h

Legislation referred to:

Election Offences Act 1954, ss. 11, 32(a)
Federal Constitution, art. 119(1)
National Registration Act, s. 35(1)(e)
i
Indian Representation of the People Act 1951 [India], s. 127A
 164 Current Law Journal [2001] 3 CLJ

a Other source(s) referred to:

Concise Oxford Dictionary, 9th edn
Halsbury’s Laws of England, 4th edn, vol 45, p 721
Sabah Law Association, vol IV, p 11
Sarkar on Evidence, 13th edn, p 961

b Election Petition No: K5 of 1999

For the petitioner - Ansari Abdullah; M/s Ansari & Co
For the 1st & 7th respondents - Abu Bakar SFC
For the 2nd respondent - Alexander Decena (PK Lim & John Sikayun with him);
M/s Luping & Co
For the 6th respondent - Yunof Maringking; M/s Maring & Co
c For the 3rd, 4th & 5th respondents - unrepresented

Election Petition No: K11 of 1999

For the petitioner - Yunof Maringking; M/s Maring & Co
For the 1st & 2nd respondents - Abu Bakar SFC
For the 3rd respondent - Alexander Decena (PK Lim & John Sikayun with him);
d M/s Luping & Co

Reported by Usha Thiagarajah

JUDGMENT

e Muhammad Kamil Awang J:

There are two (2) election petitions, Election Petition No. K. 5/99 and Election
Petition No. K. 11/99, arising out of the Sabah State Election held on 13
March 1999. The election petitions concern the N13 Constituency, Likas, which
was won by the SAPP (BN) candidate, Datuk Yong Teck Lee, (the 2nd
f respondent) in Election Petition No. K. 5/99 and the 3rd respondent in Election
Petition No. K. 11/99.
These election petitions were consolidated and tried together in order to save
time and costs.
g
Election Petition No. K. 5/99
The petitioner in this case was Datuk Mohd. Harris Salleh, 69 years old, a
veteran politician who was the President of the Bersekutu Party. He had been
in politics for 37 years and was a former Chief Minister of Sabah in 1984.
h The Bersekutu Party led by the petitioner had not fared well in the last few
state elections, and in this election it fared no better.
This Election Petition No. K. 5/99 essentially concerns an offence under the
Election Offences Act 1954, ie, the making and erection of the four (4)
billboards containing false statements, made by the 2nd respondent or his
i
 Harris Mohd Salleh v. The Returning Officer,
[2001] 3 CLJ Ismail Majin & Ors (And Another Petition) 165

agents. The court had allowed the application by the 1st respondent (the a
Returning Officer, Ismail bin Majin) and the 7th respondent (the Election
Commission of Malaysia) to be struck out as parties in this petition as they
were not parties to the alleged offence regarding the billboards.
The petitioner alleged that during the 1999 election, the parties had used unfair
b
practices which constituted offences under the Election Offences Act 1954, in
particular the putting up of 4 huge billboards in the vicinity of the Likas
polling station. These huge billboards, measuring 16’ x 21’ each, bore no
printer’s name and address on it as required by the law. The billboards were
put up on the eve of the polling day (10 March 1999) at strategic points: viz
Simpang Jalan Sepangar, Kg. Gusung (Likas), near Masjid Kg. Likas and c
Simpang Jalan Tuaran/Jalan Telok Likas in front of Bersekutu Headquarters.
These billboards contained false statements of facts, which seriously defamed
the petitioner and which had directly or indirectly affected the results of the
election in the Likas Constituency.
d
The petitioner’s complaints:
(a) Paragraph 3(A)(iv)
The second respondent and/or his agents had with his knowledge or
consent during the above election printed, distributed and or posted up e
advertisements, handbills or posters which refers to the said election and
which does not bear upon its face the names and addresses of its printer
and publisher.
Particulars
f
An Election advertisement board which was erected at the junction of Jalan
Tuaran/Jalan Telok Likas at Kota Kinabalu on the 10th March 1999 under
the heading “Sebilangan Besar Dosa-Dosa Harris Yang Tidak Boleh
Dimaafkan Oleh Rakyat Sabah.”

(b) Paragraph (b) g

An election advertisement board which was erected at the junction of Jalan

Tuaran/Jalan Telok Likas at Kota Kinabalu on 9th day of March 1999 under
the heading “Reject This Arrogant Politician”.

(c) Paragraph (c) h

An Election advertisement board which was fixed at a workshop at Taman

Nelly, Kolombang, Inanam at Kota Kinabalu on or before 10th March 1999
under the heading “Sabah Petroleum Deal KTV”.
i
 166 Current Law Journal [2001] 3 CLJ

a The false statements in the billboards were as follows:

Sebilangan Besar Dosa-Dosa Harris Yang Tidak Boleh Dimaafkan oleh Rakyat
Sabah:

1. Siapa menjatuhkan Tun Mustapha/USNO? Dia

b 2. Siapa serahkan hasil minyak Sabah? Dia
3. Siapa jual Labuan? Dia
4. Siapa mengusir orang-orang Islam di setinggan? Dia
5. Siapa menindas pegawai-pegawai kerajaan Islam
‘76 - 85’ (9 tahun)? Dia
c 6. Siapa menipu Tun Mustapha naik ke Istana angkat
sumpah? Dia
7. Siapa yang mengetuai rusuhan 1986? Dia
8. Dan banyak dosa-dosa lain lagi.

d The English translation of the statements are as follows:

1. Who brought down Tun Mustapha/USNO? He
2. Who surrendered oil revenue of Sabah? He
3. Who sold Labuan? He
e 4. Who chased out Muslims at squatter areas? He
5. Who victimized Muslim Government officers
‘76 - 85’ (9 years)? He
6. Who cheated Tun Mustapha into going up to the
Istana to be sworn in? He
f 7. Who led the riots in 1986? He
8. There are many other sins.

I will deal with three main statements which are of real significance; viz,
(1) Sabah Oil Revenue
g
(2) Labuan; and
(3) Riot in 1986.
Sabah Oil Revenue
h Following the discussions held in 1974 between the Prime Minister and the
Chief Ministers of Sabah and Sarawak respectively, it was agreed that
Parliament passed the Petroleum Development Act 1974, wherein it was agreed
that all the 13 States in Malaysia, would relinquish the right over petroleum
in each state to a statutory body to be established, known as Petronas.
i
 Harris Mohd Salleh v. The Returning Officer,
[2001] 3 CLJ Ismail Majin & Ors (And Another Petition) 167

On 22 March 1975 via an agreement between Petronas and Sabah, Sabah will a
relinquish its right over petroleum found in the State of Sabah to Petronas.
In other words, the right over petroleum is vested forever in Petronas. Petronas,
in return for the right given by Sabah State, will pay the 10% royalty on the
petroleum received from its contractors, Shell and Esso, 5% to the State of
Sabah where petroleum was found and 5% to the Federal Government. Similar b
agreements were concluded between Petronas and each of the other 12 states.
The Sabah Government was represented by the Chief Minister (then the late
Tun Fuad) and Petronas by its Chairman (Tengku Razaleigh Hamzah).
Apparently, each of the 13 States (in Malaysia) relinquished the right over
petroleum in its State to Petronas, even though some of the States has no c
petroleum, for instance, the State of Terengganu relinquished its right over
petroleum via the 1975 agreement with Petronas although no petroleum was
found in the State of Terengganu then.
Labuan d
Labuan was never sold to the Federal Government as there was no payment
received by the Sabah Government or Harris. It was agreed by the Federal
Government and the Sabah Government that the adminstration of Labuan be
given to Wilayah Persekutuan which had the resources and finance to develop
Labuan effectively, in the words of Harris, as it were it would be another e
“Singapore” (perhaps a smaller Singapore).
When the Rang Undang-Undang Wilayah Persekutuan Labuan 1984 was tabled
in Parliament, there was no opposition from any quarters especially Sabah.
As such Sabah had consented to the passing of the law which created the f
Wilayah Persekutuan Labuan, a territory in Malaysia, and the Federal
Government was not involved in the administration of Wilayah Persekutuan
Labuan at all. The statement in the billboard that Harris had sold Labuan to
the Federal Government was absolutely absurd.
The Riot In 1986 g

According to evidence in court, Harris had never been involved in riots of

any kind in Sabah all his life. Harris had never been charged nor convicted
of an offence of riot. However, on 23 March 1986 at the invitation of Tun
Mustapha (the late) he participated in a peaceful demonstration for the Muslim
h
community, and no arrest was made. This was confirmed by PW17, Datuk
Hj. Abdul Karim bin Abd. Ghani (the UMNO Sabah Chief), in his testimony
at this hearing.

i
 168 Current Law Journal [2001] 3 CLJ

a This evidence stood unchallenged.

The putting up of the huge billboards were undertaken by the workers of SAPP
surreptitiously on the eve of the polling day as testified by several witnesses
including PW6 and PW7. They were put up in the stealth of the night at the
abovementioned places, and were hastily dismantled almost immediately after
b
the close of polling on the following day. It was observed that these billboards
bore the BN symbols, but did not carry the printer’s name and address thereon.
Following an investigation by PW6 and PW7 (Harris’s men), they found a
workshop where the billboards were printed, and on inquiry they were told
that it was on the instruction and direction of SAPP officials. There is no
c evidence to show that the 2nd respondent personally put up the billboards but
it was the SAPP officials or workers who put up these billboards. There was
no evidence in rebuttal to this piece of evidence.
The work of SAPP members or agents in erecting these billboards may be
d imputed to its leader, ie, the 2nd respondent. There is no evidence to show
that he had no knowledge about this. Evidently it is clear that these billboards
were erected for the sole benefit of the SAPP (BN) candidate, the 2nd
respondent.
The Law
e
Section 11 of the Election Offences Act 1954 states:
(1) Every person who:

(a) ...
f (b) ...

(c) 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 or publisher;
g
(d) makes or publishes, before or during an 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;

(e) ...
h
(f) ...

shall be guilty of a corrupt practice, and shall, on conviction by a

Sessions Court, be liable, in the case referred to ... and, in any other
case, to imprisonment for six months and to a fine of five hundred
i ringgit.
 Harris Mohd Salleh v. The Returning Officer,
[2001] 3 CLJ Ismail Majin & Ors (And Another Petition) 169

See Ali Amberan v. Tunku Abdullah [1970] 2 MLJ 15. a

A similar provision to s. 11(1)(c), it is noted, appears in s. 127A of the Indian

Representation of the People Act 1951, thus:
S. 127A – Restriction on the printing of pamphlets, posters etc
b
(1) No person shall print or publish, or cause to be printed or published, any
election pamphlets or poster which does not bear on its face the names
and addresses of the printer and the publisher thereof.

It should be noted both the acts prohibited by sub-ss. (c) and (d) of s. 11 are
classified as “corrupt practice”. c
Learned counsel for the petitioner submitted that there is no necessity to prove
that a corrupt practice or illegal practice had affected the result of the election.
In other words, an election is void if corrupt practice had been proved without
any need to examine whether such an act had in fact “affected the result of
the election”. Even under s. 32(a) of the Election Offences Act 1954, where d
there is non-compliance, we do not have to prove that results were affected.
Section 32 of the Election Offences Act 1954 states:
The election of a candidate at any election shall be declared to be void on an
election petition on any of the following grounds which may be proved to the e
satisfaction of the Election Judge:

(a) that general bribery, general treating or general intimidation or other

misconduct or other circumstances whether similar to those before
enumerated or not have so extensively prevailed that they may be
reasonably supposed to have affected the result of the election; f

(b) non-compliance with the provisions of any written law relating to any
election if it appears that the election was not conducted in accordance
with the principle laid down in such written law and that such non-
compliance affected the result of the election;
g
(c) that a corrupt practice or illegal practice was committed in connection
with the election by the candidate or with his knowledge or consent, or
by any agent of the candidate;

(d) that the candidate personally engaged a person as his election agent, or
as a canvasser or agent, knowing that such person had within seven years h
previous to such engagement been convicted or found guilty of a corrupt
practice by a Sessions Court, or by the report of an Election Judge; or

(e) that the candidate was at the time of his election a person disqualified
for election.
i
 170 Current Law Journal [2001] 3 CLJ

a In Re Ranjong Puteri Johor State Election Petition, Abdul Razak bin Ahmad
v. Datuk Md Yunos bin Sulaiman & Anor [1988] 2 MLJ 111, Wan Yahya J
(as he then was) adopted the rationale enunciated in Morgan & Ors v. Simpson
& Anor [1974] 3 All ER 722 that an Election Judge could declare an election
void if the management of the election was not conducted substantially in
b accordance with the election law irrespective of whether the irregularities
complained of had affected the election result or not. This was followed by
Ahmad Fairuz J (as he then was) in Abd Hamed b. Mamat v. Uz Baharudin
b. Mohd & 2 Ors [1993] 1 AMR 1.
Standard Of Proof
c
Under s. 32 of the Election Offences Act 1954 it has been laid down that the
grounds ‘which may be proved to the satisfaction of the Election Judge’. This
also applies to s. 11 of the Act, what then constitute to the satisfaction of the
court.
d Wan Yahya judge (as he then was) in Tanjong Puteri’s case (supra) states at
p. 113:
It is neither wise nor practical to lay down an inflexible standard of proof to
be followed in an election case when dealing with such application and for
that reason the legislature has obviously left it for the election court to decide
e
the quality of evidence required to prove a case according to the circumstances
of each case.

See also Abd Hamed b. Mamat’s case (supra).

In Datu Mustapha b. Datu Harun v. Tun Datuk Hj. Mohd Adnan Robert [1986]
f
2 MLJ 420 Tan Chiaw Thong J held that where there are allegations of
criminal misconduct and threatening behaviour, which amounts to criminal
offence, the party alleging must prove its case on the balance of probabilities.
See Eastern Enterprises Ltd v. Ong Choo Kim [1969] 1 MLJ 236 and Lau
Hee Teah v. Hargill Engineering Sdn. Bhd. & Anor [1980] 1 MLJ 145.
g
In Hamad bin Mat Noor v. Tengku Sri Paduka Raja & Ors [1993] 4 CLJ
135, Lamin J (as he then was) came out in strong terms:
(1) The alleged acts of corrupt practice within the meaning of s. 32(c) of
the Election Offences Act 1954 (‘the Act’) and none of the acts
h enumerated in s. 32 of the Act was criminal in nature. If such alleged
acts were proved, then it would be a ground to declare the election of
the respondent concerned null and void but there would be no finding
of guilt and no conviction.

i
 Harris Mohd Salleh v. The Returning Officer,
[2001] 3 CLJ Ismail Majin & Ors (And Another Petition) 171

(2) A court of an election judge was a civil court and such a conclusion was a
fortified by s. 33(2) of the Act in that the judge’s power to call witnesses
and to have them sworn before him was as nearly as circumstances admit
as that of a High Court judge sitting in exercise of his ‘original civil
jurisdiction’.

(3) In order to determine whether an act is criminal in nature, one must ask b
the question as to whether it entails penal consequences. The acts
enumerated in s. 32 of the Act would not be visited by some form of
punishment and therefore, the standard of proof required must be that as
applied in civil proceedings, that is on the balance of probabilities.

Burden Of Proof c

It was held by Lamin J (as he then as) in Hamad’s case (supra) that the
burden of proof lies on both sides, ie, the petitioner and the respondent. In
Mursin b. Laini @ Matdin v. Datuk Fred Sinidol (1983), the writ journal of
the Sabah Law Association vol. IV p. 11, Chong Siew Fai J (as he then was)
d
cited with approval Indian cases which hold that the returned candidate is not
altogether absolved from all liability to adduce evidence to disprove the case
of the petitioner, for instance, to prove facts within his special knowledge.
In Shen Yuan Pai v. Dato’ Wee Hood Teck & Ors [1976] l MLJ 16 where
the late B.T.H. Lee J held that the omission by the defendant in not calling e
their agent to give evidence in support of their case should be viewed against
them.
In Sarkar On Evidence, 13th edn, p. 961 it was provided that the said principle
of law applies equally in election cases. The legal maxim lex non cogit ad
impossibilia which means “the law does not require a man to do that which f
he cannot possibly perform”.
Agency In Election Cases
A candidate at an election is responsible for the acts of his agents who are
g
not and would not necessarily be agents under the common law of agency.
In Ali Amberan’s case (supra), his Lordship Raja Azlan Shah J (as His Royal
Highness then was) said:
Inspired and guided by English and Indian election law I take the view that
the rule of extended scope of agency holds good in our election law; any other h
view would tend to make it impossible to preserve the purity and freedom of
elections. Accordingly a candidate at an election is responsible for the acts of
agents who are not and would not necessarily be agents under the common
law of agency. Therefore a political party and its prominent members who set
up the candidate and with his consent, either expressly or by necessary
implication, sponsor his cause and work actively to promote his election, may i
aptly be regarded the “agents” of the candidate for election purposes.
 172 Current Law Journal [2001] 3 CLJ

a See Gurdial Singh Nijar v. KS Balakrishnan [1993] 2 CLJ 75.

The 2nd respondent had failed to put up evidence in rebuttal to the petitioner’s
case, and I found that the petitioner’s case had been proven on a balance of
probabilities.
b His Lordship Raja Azlan Shah J (as His Royal Highness then was) in Ali
Amberan’s case (supra) said:
It is of significance to note that the primary purpose of the diverse provisions
of the election law which may at first-hand appear to be technical is to
safeguard the purity of the election process and the courts will not in ordinary
c circumstances minimize their operation. It is the concern of the courts to purge
elections of all kinds of corrupt or illegal practices so as to protect the political
rights of the citizens and the constituency.

On the evidence as a whole, I find that the 2nd respondent had committed an
offence under s. 11(c) and (d) and s. 32 of the Act. I would declare the
d
election of N13 Likas Constituency null and void.
Election Petition No. K11 Of 1999
The petitioner brought this action against The Sabah State Election Officer
(the 1st respondent), the Returning Officer, Ismail bin Majin (the 2nd
e
respondent) and Yong Teck Lee (the 3rd respondent).
Basically, the petition was based on three main grounds:
1. That the Election Rolls 1998 which were used in the State Election in
f March 1999 for the N13 Likas Constituency was illegal as it contained
the names of non-citizens and persons who had been convicted for
possession of fake identity cards.
2. That there were corrupt practices; and

g 3. Conspiracy.
The Electoral Roll
The gist of the petition is that the 1998 Electoral Roll for Likas Constituency
was illegal as it was compiled contrary to the Constitution and Laws of
h Malaysia; only citizens are eligible to vote in any Parliamentary election or
State election (art. 119(1) of the Federal Constitution), and the electoral roll
ought not to admit non-citizens or those persons who have been convicted of
the offence of possession of fake identity cards.

i
 Harris Mohd Salleh v. The Returning Officer,
[2001] 3 CLJ Ismail Majin & Ors (And Another Petition) 173

The electoral roll for the country is updated annually by the Election a
Commission (SPR). Voters who have died are struck off and new eligible
voters are added to the list. The Election (Registration of Electors) Regulations
(Sabah) 1971, which sets out in detail the outlines for this updating process,
also sets out the procedure for all other voters in the electoral roll of his or
her constituency. b
According to this legislation, if any voter files an official objection against
the inclusion of a particular person, the SPR has to hold a public inquiry in
which the objector as well as the person being objected to are invited. The
objector will make out a prima facie case for his objection, then the SPR will
require the person being objected to give proof of his residential status. c

It is public knowledge that the presence of a large number of illegal

immigrants in Sabah has been for quite some years, and that there are
numerous cases of illegal immigrants who have been registered in the electoral
roll as voters using fake identity cards or identity cards illegally obtained. This d
is of grave concern to the Sabahans in particular, and in general to all
Malaysian citizens. As a matter of fact, the 3rd respondent (a former Chief
Minister) had in the past been consistent in his call to the government to carry
out investigations into these cases and had brought up this issue of illegal
immigrants in the electoral roll with the SPR many times when he was a
e
member of PBS, and later SAPP. The petitioner, a member of PBS, had carried
out his research and investigation, and untiringly made known the results
thereof to the government. In this trial, he attempted to produce evidence to
the effect before this court.
The petitioner, Chong Eng Leong @ Ching Eng Leong (PW8), 54 years old f
and a surgeon by profession, stood as a PBS candidate in this election, and
lost to the 3rd respondent.
The primary contention was that the certification of the 1998 Electoral Roll
for Likas Constituency was fraudulent as there were illegal practices in the
g
registration and preparation of the electoral roll for Likas Constituency (N13),
which admitted into the electoral roll many non-citizens and persons who were
clearly disqualified by virtue of the fact that they had been convicted in a
court of law for possession of fake identity cards.
The electoral roll for Likas Constituency was certified by SPR in December h
1998. Prior to that date, there were 4,585 objections raised in respect of List
A and 246 objections in List B. List A consists of names of voters in a
constituency and the review thereof was not allowed except in cases of death
or loss of eligibility (or disqualification). List B consists of names of voters
who had made applications for transfer of constituency, eg, if a person has i
changed his address and resides in another constituency. A person has to be
in List B before he moves into List A.
 174 Current Law Journal [2001] 3 CLJ

a The petitioner testified that there was no hearing in respect of the 4,585
objections in List A, and as such he made an appeal against the non-hearing
of the objections to SPR, Kuala Lumpur, which drew a blank.
Of the 246 objections in List B, only 10 objectors were present at the inquiry
held on 15 November 1998. As a result 19 names were deleted in List B; in
b
fact one objector was not even registered with the Jabatan Pendaftaran Negara
(JPN).
There were 4,197 persons having dubious identity cards (exh. P15) and the
petitioner had written a letter dated 20 April 1999 to the JPN about them but
c there was no response. Later his counsel wrote a letter (exh. P16) dated 8
September 1999 to JPN on the same subject matter and received the same
treatment.
On another occasion he received from the public 36 cases of dubious identity
cards (exhs. P25 (1-36)) which names appeared in the electoral roll for Likas
d Constituency, and he lodged a report with the police, vide Kota Kinabalu
Report No. 1438/1999. It appeared that no investigation had been carried out
on the report.
The petitioner’s evidence found corroboration in the testimony of the Pegawai
e Pendaftar Likas, (Registering Officer Likas), Ewol B Muji @ Edward Ewol
Muji (PW10).
As a Registering Officer, he registered electors (voters) for the State Election,
and he received objections from voters. He testified that he received 4,585
objections to List A and 246 objections to List B. Regarding the objections
f to List A, there was no public inquiry held. The reason being that there was
a strict instruction by SPR that no objection to List A could be entertained
except in cases of death or disqualification. The instructions were contained
in SPR’s letters dated 7 and 8 October 1998 (exhs. P21 and P22) addressed
to Pegawai Pilihanraya Negeri Sabah and all Pegawai Pendaftar. A letter ref.
g SPR(S)273/(42) dated 7 October 1998 (exh. P22) addressed to Pegawai
Pilihanraya Negeri Sabah, which stated, inter alia:
2. Sukacita dimaklumkan bahawa Suruhanjaya Pilihanraya telah memutuskan
bantahan terhadap Senarai “A” 1997 tidak akan diterima melainkan atas alasan
kematian atau hilang kelayakan. Ini bermakna bantahan kepada Senarai “A”
h 1997 yang diterima atas alasan-alasan selain yang dinyatakan tersebut dari
mana-mana pembantah ditolak oleh Pegawai Pendaftar.

The words “hilang kelayakan” are not defined. They simply mean “loss of
eligibility” or disqualification.
i
 Harris Mohd Salleh v. The Returning Officer,
[2001] 3 CLJ Ismail Majin & Ors (And Another Petition) 175

The Pegawai Pilihanraya Negeri Sabah in its letter ref. PPN(O) 1/6(66) dated a
8 October 1998 (exh. P21) conveyed the decision of SPR to all Pegawai
Pendaftar (Registering Officers) including PW10, as follows:
... dimaklumkan bahawa Suruhanjaya Pilihanraya Malaysia telah memutuskan
bahawa bantahan Senarai A Daftar Pemilih 1997 yang telah disahkan pada 31
Disember 1997 tidak boleh diterima kecuali atas alasan kematian atau hilang b
kelayakan.

As a result, the petitioner and a few others made applications to PW10

appealing against the decision not to hold a public inquiry, whereby the
applications were forwarded by PW10 to SPR (HQ) Kuala Lumpur (exh. P49).
c
There was no response.
PW10 further testified that he did not verify the identity cards during the
registration of voters. It was not a practice that he had to verify identity cards
nor the citizenship documents of those people who wish to register in the
electoral roll. In other words, PW10 just followed orders of his superiors not d
to hold a public inquiry to an objection except in cases of death or
disqualification. Superior orders or state authority are no defence to an action
otherwise illegal.
The letters (exhs. P21 and P22) of SPR to Pegawai Pilihanraya Sabah did not
e
allow public inquiry to be held regarding the 4,585 objections to List A except
in cases of death and the loss of eligibility (ie, disqualification). Thus a citizen
in List A may lose his eligibility as a citizen, for example, in contravention
of the provisions of the Federal Constitution and yet remain a voter on the
electoral roll. Are persons who have been convicted in a court of law for the
offence of possession of fake identity cards, not persons who have lost their f
eligibility? Are non-citizens who have been registered in an electoral roll,
cannot be objected to and, if proven, his name should not be deleted from
the roll?
The SPR has to face the truth. The 4,585 objections in List A were cases of g
persons having dubious identity cards or persons who had been convicted of
having fake identity cards. The people who raised the objections were
exercising their rights as citizens, and it is unthinkable that the SPR should
shut-off the objections in List A without a public inquiry. It is a constitutional
wrong for SPR to have rejected the objections outright. More importantly, it
h
is wrong for SPR to allow non-citizens and disqualified persons to be on the
electoral roll as voters. It appears that the certification of the electoral roll
for the 1998 Likas Constituency by SPR ultra vires the Constitution and is
in fact illegal.

i
 176 Current Law Journal [2001] 3 CLJ

a Identity Card Not Proof Of Citizenship

The identity card is not proof of citizenship. It appears that the SPR takes
the identity card as proof of citizenship and a person who produces a blue
identity card will be registered in the electoral roll. PW10 (Pegawai Pendaftar
Likas) testified at the trial that it was the normal practice that the Pegawai
b
Pendaftar accepts for registration on the electoral roll persons who have blue
identity cards and also those with temporary identity cards, that is form JPN
1/9 and form JPN 1/11. This has been much abused. For example, Indah
Mahiya bte Abdullah had lost her blue identity card and reported the loss to
the police, vide Report No. 2429/98. Based on the police report she was issued
c with a temporary identity card, form JPN 1/9. It seemed that based on the
same police report No. 2429/98, seven other people were issued with form
JPN 1/9 (ie, temporary identity card) as follows:
1. Ambun Alaisman Identity card No. H0382459
d 2. Siti Rafiah bte Yusop Identity card No. H038503
3. Rahman bin Sultan Identity card No. H0481302
4. Abdul Hamid bin Hashim Identity card No. H0559359
5. Rahan bte Dohula Identity card No. H0573678
6. Massa bin Angki Identity card No. H0575852
e 7. Sodam bin Abdullah Identity card No. H0481204

This piece of evidence stood unchallenged.

In another election case, No. K 1/99 before this court, the petitioner had
notified the SPR that there were cases of the use of duplicate identity card
f numbers in the registration of names in an electoral roll, viz:
1. Identity card No. H0867925 held by:
Roseniah Bt Gano – Kudat
Ngui Chee Ping – Karamunting
g
2. Identity card No. H0870205 held by:
Luise @ Yiana bt Warisan – Kudat
Luise Viana bt Warisan – Inanam

h 3. Identity card No. H0870883 held by:

Saimah bte Ibing – Kudat
Fauziah bte Mahmud – Lahad Datu

i
 Harris Mohd Salleh v. The Returning Officer,
[2001] 3 CLJ Ismail Majin & Ors (And Another Petition) 177

4. Identity card No. H0872933 held by: a

Abdul bin Muksin – Kudat
Saidsaripudin – Balung
5. Identity card No. H0873447 held by:
Yaku b. Dugang – Kudat b
Ajijah bt Hassan – Pantai Manis
Obviously these are in contravention of s. 35(1)(e) of the National Registration
Act. This evidence remains unchallenged.
c
The Tawau Court had convicted the following persons in 1996 for the offence
of possession of fake identity cards:
Kassim bin Ali Identity card No. H0508335;
Anwar Identity card No. H0512235; and
Kadir Labak Identity card No. H0454652 d

But their names were not deleted and were still in the 1998 certified electoral
roll for Likas Constituency. See PW14’s evidence (exh. P62) – below. Are
these not persons who had lost their eligibility – ‘hilang kelayakan’ within
the context of SPR’s letter (exh. P22)? I should think so. But why has the e
SPR failed to hold a public inquiry and have their names deleted from the
electoral roll?
How easily many of the immigrants, Filipinos and Indonesians, had obtained
citizenships in this maner, ie, through their applications for identity cards, was
well illustrated by the testimony of Asainar b. Ibrahim @ Hassan, (PW11), a f
former District Chief for Bandar Sandakan from 1982-1985. A system which
was established before Malaysia Day 1963 where an appointment of District
Chief, a parallel appointment (a political appointment), vis-a-vis the District
Officer was appointed by the government. PW11 was a Pegawai Perbadanan
Kemajuan Sabah, later Ahli Lembaga Bandar Sandakan and Ketua Daerah g
Sandakan in 1985.
He testified that there were two categories of applicants for the blue identity
cards. Those persons under 12 years old and who have birth certificates have
no difficulty in obtaining blue identity cards. Those above 12 years old and
h
who have no birth certificates may obtain identity cards by using form HMR
10 (JPN). This form is filled up by the parents and submitted to the District
Chief who supported the application and sent the form to the District Officer
concerned, who, based on the recommendation of the District Chief, approved
the application. The Jabatan Pendaftaran Negara then issued the blue identity
card. When PW11 was first appointed as the District Chief, he had no idea i
 178 Current Law Journal [2001] 3 CLJ

a of what was going on and he recommended, without question, the 1,000 and
more of such applications that he received from the Native Court and, on his
recommendation, they were issued with blue identity cards. He said that “the
main factor causing loss to Berjaya Government in 1985 to PBS was because
Berjaya leaders sold the rights of Sabahans to foreigners, totaling 40,000 by
b making them blue identity cards, thus they became citizens.” He was a Berjaya
Party candidate in Sungei Sibuga Constituency in the 1986 State Election but
lost.
In 1998 it was alleged that he was involved in a project to process and
distribute blue identity cards to illegal immigrants in Sabah, the Filipinos and
c the Indonesians. On 9 July 1988 he was detained under the ISA for 60 days
and thereafter he was placed under restricted residence for two years. He was
never charged in court to this day. He alleged that there was a conspiracy at
the highest level to register illegal immigrants as voters (see below).

d PW13 Mutalib Md Daud, is a former Executive Secretary for Silam UMNO

Division and is still a member of UMNO. Mutalib was born in Kg. Lanai,
Kedah and initially held a Malaya identity card. In 1970 he migrated to Sabah
under the “Untuk Kemajuan Ba” programme and settled down at a village
named Kg. Burong, Lahad Datu where he found that a large number of illegal
immigrants from Indonesia and Phillipines had settled down.
e
He observed that there were numerous immigrants who had obtained blue
identity cards in a relatively short time, three months or three years, while it
took him 23 years to change his Malayan identity card into an identity card
of Sabah through the normal process. He testified that of the 43,000 new
f UMNO members recruited at the time, only 14,000 had genuine blue identity
cards, the rest he did not know how they got their blue identity cards.
From 21 October 1996 there was an exercise to recruit UMNO members for
three days which attracted 10,211 new UMNO members. They applied for
identity cards, but only 180 applications for identity cards from these members
g
were approved by Jabatan Pendaftaran Negara, and the rest were rejected.
The instances of non-citizens and phantom voters in the electoral roll as
disclosed at this trial may well be the tip of the iceberg. “Phantom”, according
to the Concise Oxford Dictionary, 9th edn, means a form without substance
h or reality; a ghost; a specter, and in the context of a phantom voter, it means
that the voter is a non-citizen who is in an electoral roll by virtue of a fake
identity card or identity card obtained illegally. It cannot be denied that the
registration of voters in the Likas electoral roll was in contravention of the
law. No one, including the government department or institution, is above the
i law.
 Harris Mohd Salleh v. The Returning Officer,
[2001] 3 CLJ Ismail Majin & Ors (And Another Petition) 179

It is common knowledge that an influx of illegal immigrants has plagued Sabah a

for some years. It is a well known fact as it had appeared in the local dailies
too frequently. The SPR ought to be aware of it and when the objections were
raised as in this case, the SPR ought to have held a public inquiry as
prescribed by the election laws.
b
The exposure of fraudulent practices such as massive registration of phantom
voters is time consuming. However, it has to be done if we wish to defend
and preserve the meaningful practice of democracy in Malaysia. As custodians
of free and fair elections, the SPR is duty bound to do it.
It appears that the SPR had deliberately or knowingly sent those letters (exh. c
P21 and P22) that prohibit the holding of a public inquiry (except in cases of
death or loss of eligibility). No one knows the reason or the rationale for doing
so, this is best known only to the SPR. It is obvious that the SPR’s lack of
action in holding a public inquiry in the face of the objections is unacceptable.
Therefore the certification in December 1998 of the electoral roll for Likas d
Constituency was not bona fide.
The failure of SPR to maintain an electoral roll in accordance with the law
makes the electoral roll illegal. Such is the case in the 1998 electoral roll for
Likas Constituency (N13). I would in the circumstances, uphold the petitioner’s
petition that the 1998 electoral roll for Likas Constituency (N13) was illegal. e

Phantom Voters
Operation Gembeling (Ops Gembeling)
Radin Malleh (PW14), a Member of Parliament and the Secretary General of f
PBS, holds a LLB degree from the Kent University, and had served the police
force for 20 years, holding the rank of DSP when he left the force in 1990
to join politics. As the Secretary General of PBS he received a lot of
information and materials of public interest from members of the public,
including documents of “pengundi luar” or phantom voters. g
In early March 1999 he received via Pos Laju a box containing lists of names
and dubious identity card numbers of 40,000 people and he had forwarded
them to the police, vide report No. 1061/99 dated 10 March 1999 (exh. P60).
31,845 names were found in the 1998 electoral roll, of which 2,975 names
were registered in the Likas electoral roll. h

He lodged a report with the police, re “pengundi luar” three times but
unfortunately no action was taken. In particular, 12 fake identity cards were
sent to the police for investigation, vide report KK 1794/96 dated 18 January
1996, and 10 names appeared in the 1998 electoral roll of Likas Constituency,
i
N13.
 180 Current Law Journal [2001] 3 CLJ

a It is quite ironic that these reports are meaningless to the police, the force in
which he had been a member of and served faithfully as a senior officer for
a good many years.
Three persons, Mat Tahir, Normini and Tuppa were convicted by the Tawau
Court for possession of fake identity cards, and on appeal, the High Court
b
Tawau dismissed the appeal and affirmed the convictions and sentence (exh.
P62). Their names were in the electoral roll and they voted in the election.
Between 1996-1998 several people were arrested under ISA for involvement
in the issuing of fake identity cards: Mohd Agjan b. Ariff, Jabar Khan, Bandi
c Pilo and Shamsul Alang – all from Sabah UMNO; and Mohd. Nasir Sunjit,
Asbi b. Abdul Karim, Jamah Ariffin, Ash bin Ariffin and Kee Dzulkifli b.
Kee Abdul Jalil – all were officers in JPN Sabah. They were involved in the
Ops Gembeling.
This operation called Ops Gembeling whereby the JPN officers were asked
d to collect the names of the illegal immigrants, and with the aid of some
political leaders, they were given the blue identity cards. PW14 had written
to JPN in respect of these illegal immigrants who were given blue identity
cards (exh. P54) and he also wrote to the Ketua Pengarah Pendaftaran Negara
Malaysia on 15 December 1998 before the electoral rolls were certified by
e SPR on 31 December 1998. There was no response.
The target of this operation was the Malays of Bugis origin, and these people
formed an association known as Persatuan Kebajikan Bugis Sabah. For
example, Pirsing Siraji, 22 years old, was in possession of identity card No.
f
H0481706, and his name was found in the 1998 electoral roll (but with the
identity card No. H04817096) for Likas Constituency. It is noted that the Sabah
identity card number has seven digits, Pirsing had identity card number with
eight digits, and he was convicted by the court on 28 September 1992.
On 15 December 1998 when PW14 wrote to the JPN for verification of the
g identity cards, there was no response. On 7 October 1999 Hamid b. Hassan
wrote an open letter (exh. P66) to the Deputy Prime Minister – there was no
response.
As a Member of Parliament, PW14 raised this issue in Parliament, in a letter
addressed to Setiausaha Dewan Rakyat (exh. P65) and it was rejected under
h
r. 23(1)(f) of the Standing Order as it was a secret matter which the
government could not disclose.
The secretary of the SPR stated that there were no phantom voters in Sabah
to which the 3rd respondent (a former Chief Minister) quickly put in a
i statement in the press “Stop the denial and act” (exh. P67).
 Harris Mohd Salleh v. The Returning Officer,
[2001] 3 CLJ Ismail Majin & Ors (And Another Petition) 181

PW14 referred to a letter (ID14) written by the Chief Information Officer a

UMNO (Datuk Hj Karim bin Abd. Ghani) PW17, which was sent to 31 State
Constituencies which included Sulaman Constituency. In Election Petition No.
K 7/99, PW14 filed therein an affidavit to which PW17 responded. He
observed that the signature of PW17 in the affidavit and ID14 were not
dissimilar. It referred to about 3,972 “pengundi luar”. b
PW17 in his testimony stated that he did not sign the letter (ID14) and he
suggested that the signature was forged. This letter was distributed to all
UMNO branches in Sabah, and in the trial of the three persons (exh. P62) in
Tawau High Court the judge had accepted the evidence of the accused that
they were just following the directions of a superior as contained in ID14. If c
ID14 carries a forged signature, therefore it is a forged document. This is a
serious allegation, but why is it that PW17 did not publicly disown it as soon
as he knew that ID14 had been sent and received by all UMNO branches in
Sabah? Why didn’t PW17 or UMNO refute this at the trial in the High Court
at Tawau? The three convicted persons had their evidence accepted by the d
court that they had been directed by UMNO Sabah to register and help these
immigrants to get identity cards. Why didn’t PW17 come to court and deny
that ID14 was signed by him? It appears that many people including all the
UMNO branches in Sabah and the courts had been misled and had acted on
it (ID14). But there is no evidence of this alleged forgery (ID14) and it was e
never reported to the police. UMNO Chief Information Officer thought it fit
to ignore and allow ID14 to be made use of extensively, including in court
proceedings, without taking any action or step to deny or stop it. As a matter
of fact, PW17 had made no mention of ID14 at all in his affidavit in Petition
No. K 7/99. The veracity of PW17’s evidence here is highly questionable. f
Corrupt Practices Or Bribery
The allegations of corrupt practices or bribery made by the petitioner in the
petition were too general in nature. PW16 testified that days before the election
day, many candidates from various political parties including the 3rd g
respondent and their supporters, visited the constituency. Some brought and
distributed to the people food stuff such as 25 kg. rice each, milk, sugar,
cooking oil and flour; some were supplied building materials such as zinc
roofs, planks, boards and water tanks; the more ambitious, built roads, canals,
boats and “perahus”. Some distributed money. The display of generous concern
h
and care is a very welcome thing to the voters although it happens at a five-
yearly interval, as a prelude to each election. It is fast becoming a Malaysian
way of life, a tradition as it were, that prior to an election, contesting
candidates will visit their constituency with all types of gifts or presents in
their endeavour to win or influence the voters to their side. Whatever it is,
i
 182 Current Law Journal [2001] 3 CLJ

a there is not sufficient evidence before the court to support the allegation of
corrupt practices by the BN candidates. There was no specific charge that could
be brought against the 3rd respondent in the case. Corrupt practice is quasi
criminal in nature and the petitioner has to prove beyond reasonable doubt
the offence of corrupt practice. In the case of Wong Sing Nang v. Tiong Thai
b King [1996] 4 MLJ 261, the court held that there was no direct evidence that
the voters in the constituency were in any way influenced by the gift.
Therefore the petitioner had failed to prove betond reasonable doubt the offence
of bribery or corrupt practices.
Conspiracy
c
“The gist of the tort of conspiracy is not the conspiratorial agreement alone,
but that agreement plus the overt act causing damage. ... The tort of
conspiracy, however, is complete only if the agreement is carried into effect
so as to damage the plaintiff.” per Salmon J in Marrinan v. Vibari [1962] 1
d All ER p. 871.
Halsbury’s Laws Of England, 4th edn, vol. 45 p. 721 states that:
In order to make out a case of conspiracy the plaintiff must establish –

1. an agreement between two or more persons;

e
2. an agreement for the purpose of injuring the plaintiff; and

3. that acts done in execution of that agreement resulted in damage to the

plaintiff.

f Warrington LJ in Davies v. Thomas [1920] 2 Ch. 189 said:

That is to say, to be a conspiracy – that is an unlawful conspiracy, one which
gives rise to either an indictment or a right of action – it must have an unlawful
object, that is, the act which it is intended to bring about must be in itself
unlawful, or, if not in itself unlawful, then it must be brought about by unlawful
g means.

Lord Dunedin in Sorrell v. Smith & Ors [1925] AC 700 held that an act that
is legal in itself will not be made illegal because the motive of the act may
be bad.

h I can find no evidence that there was a conspiracy between the Government
and the Barisan Nasional (BN) at the highest level as suggested by Mr.
Maringking. Not an iota of evidence to show the existence of an agreement
between the Prime Minister or any other Minister with the Sabah BN regarding
the registration of disqualified persons or non-citizens in the electoral roll. The
i
semblance of an agreement in the ‘Operation Gembeling’ or the ‘Mahathir’s
 Harris Mohd Salleh v. The Returning Officer,
[2001] 3 CLJ Ismail Majin & Ors (And Another Petition) 183

Project’ where blue identity cards were sold to these people at RM300 a piece, a
evidently has no nexus to connect these to the fake identity cards sold. It is
a mere gimmick to lend legitimacy to these operations. It is incredible to say
that the government is involved in a conspiracy to register phantom voters
especially as no such agreement existed between the government and the BN.
It is true that too many politicians and public officials have exercised power b
and responsibility not as a trust for public good but as an opportunity for
private gains.
It has been brought to my attention that the SPR has come up with the revised
1999 electoral roll for Sabah in which more than 19,900 names have been
dropped there from, presumably the names are those who have died and/or c
have lost their eligibility to vote as citizens.
I seize this opportunity to record a few observations that a worrisome trend
or culture, not borne out of Malaysian culture, has evolved where public
institutions or government departments do not seem to care to respond to letters d
or reports received from the public. Such letters or reports seemed simply
ignored, invariably no response or acknowledgement or receipt whatsoever has
been made, for example, from personal knowledge in a few cases: where my
son had applied for a temporary work permit which was refused, and I wrote
an appeal to the authority concerned; and in another case, my daughter had
e
applied for a scholarship for a one-year post graduate course. In both cases
there was no acknowledgement despite reminders, although earlier on, personal
assurances of favourable considerations had been given. Regrettably this is the
very antithesis to good governance in as much as a threat to the government’s
effort to foster good relationship and integration between East and West
Malaysia. f

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 government
must act honestly and responsibly.
g
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 h
of oath of office and sacrifice justice, and above all to truly act as a judge
and not a “yes-man”.

i
 184 Current Law Journal [2001] 3 CLJ

a In conclusion, I would declare that the 1998 Electoral Roll for Likas
Constituency (N13) is illegal, and that the election held in March 1999 for
Likas Constituency is null and void. I will inform the SPR of this decision
in due course.
In Petition No. K 5 of 1999, costs to the petitioner against the 2nd respondent,
b
and in Petition No. K 11 of 1999 costs to the petitioner against the 1st and
2nd respondents. In both cases, costs are to be taxed unless agreed.