Election petitions must present clear material facts and particulars to substantiate claims of non-compliance with electoral regulations.

Introduction

[1] There are two matters before the Election Court, one is the preliminary objection ("PO") filed by the 2nd and 3rd Respondents through a letter dated 14 February 2023 [Encl 30] and the other is the Notice of Application ("NOA") filed by the 1st Respondent dated 17 February 2023 [Encl 32], both to strike out the Election Petition ("EP") filed by the Petitioner dated 4 January 2023 [Encl 2].

[2] I heard the 2nd and 3rd Respondents' PO on 8 March 2023 and the 1st Respondent's NOA on 20 March 2023. On 23 March 2023, I allowed both the PO and the NOA and consequently declared the EP as defective, null and void and therefore, ought to be struck off.

[3] Through this EP, the Petitioner is seeking an order that the 1st Respondent was not duly elected as the member of parliament for the constituency of Tuaran (P.170) premised on s 32(b) of the Election Offences Act 1954 (" EOA ") for non-compliance by the 2nd Respondent with regs 24(1)(b), 24(1)(c), 25(3)(b) and 25(4) of the Election (Conducts of Elections) Regulations 1981 ("ECER") read together with the Third Schedule of the same.

[4] The 2nd Respondent is the Returning Officer for the Election for the Parliamentary Constituency of Tuaran (P.170) and the 3rd Respondent is the Election Commission of Malaysia.

[5] For the above alleged non-compliance with the ECER as illustrated in paras 7, 9 to 19, and paras 8, 20 to 26 of the EP, the Petitioner claimed that the result of the said Election had been adversely affected and it ought to be declared null and void under s 32(b) of the EOA .

The Brief Facts

[6] In brief, the background facts are that the Petitioner, Joniston Bin Lumai @ Bangkuai from Parti Gabungan Rakyat Sabah ("GRS") was one of the six candidates who contested in the Sabah State Elections for the Parliamentary Constituency of Tuaran (P.170) held on the advance polling day ie 15 November 2022 and on 19 November 2022 for the polling day itself. The 1st Respondent, Madius Bin Tangau, a candidate from Parti Pakatan Harapan ("PH") was declared to be duly elected for the said constituency with a majority of 233 votes.

[7] The result of the Election was published in the gazette on 14 December 2022 through Federal Gazette PU(B) 619/2022 dated 14 December 2022.

The Preliminary Objection By The 2nd And 3rd Respondents

[8] The Petitioner's EP contains two main allegations:

(i) Non-Compliance with regs 24(1)(b), 24(1)(c) and 25(3)(b) of the ECER (paragraphs 7, 9 to 19 of the EP) ("First Allegation"). These non-compliances pertain to: the failure of the presiding officer in determining the number of ballot papers issued to the voters; the failure of the presiding officer in preparing the statement in Form 13; and the failure of the presiding officer in comparing and ascertaining that the number of the ballot papers in the ballot box did not exceed the number of ballot papers issued to the voters in relation to Form 14 (see paras 7 (a), 7(b) and 7 (c) of the EP).

(ii) Non-Compliance with reg 25(4) read with the Third Schedule of the ECER (paragraphs 8, 20 to 26 of the EP ("Second Allegation"). This non-compliance pertains to the failure of the presiding officer to undertake the procedures set out in the Third Schedule of the ECER once it appeared to the presiding officer that the number of ballot papers in the ballot box exceeded the number of ballot papers issued to the voters as stated in Form 13 (paragraphs 8 (a) of the EP).

[9] From the above allegations in the EP, the 2nd and 3rd Respondents raised four PO. The first two concern the non-compliance of the EP to plead the material facts pursuant to rr 4(1)(b) and 4(4)(3) of Elect