Case Summary

The appellant in this case had stood as a candidate for Barisan Nasional in the twelfth general election for the state of Manir held on 8 March 2008 and lost to the respondent, a Parti Islam Se Malaysia candidate, by a majority of 406 votes. Dissatisfied over alleged acts of bribery, corrupt practice, intimidation and non-compliance with the election laws arising from the election held he filed an election petition at the High Court seeking, inter alia, a declaration that the election be declared invalid and void and for a declaration that the respondent was not duly elected or ought not to have been returned at the election. The appellant’s petition was based on the grounds set out in s 32(a), (b) and (c) of the Election Offences Act 1954 (‘the EOA’) read with r 4(1) of the Election Petition Rules 1954 (‘the EPR’). According to the particulars furnished by the appellant in the petition it would appear that the petition arose from two incidents which occurred on election day. In the first incident the appellant alleged that the first respondent through his agent or representatives obstructed voters from voting by holding up one registered voter by taking away that voter’s wallet which contained his identity card and cash of RM2,000, assaulting that voter and calling him a Bangladeshi. This voter who was prevented from casting his vote on voting day had lodged a police report of the incident at the police station on the same day. The appellant cited this incident to support his claim that the first respondent had directly or indirectly committed acts of undue influence which constituted corrupt or illegal practices under s 32(c) of the EOA. The appellant also relied on the same incident to claim that acts of general intimidation had so extensively prevailed at the Manir state constituency as to have affected the results of the election in that state as to constitute a ground under s 32(a) of [2008] 6 MLJ 473 at 474 the EOA to declare the election of the constituency void. In the second incident the appellant alleged that a registered voter who had entered the voting place to cast his vote was prevented from casting his vote by two agents or representatives of the Election Commission who had informed the voter that his name on the electoral list had been underlined indicating that he had already voted and was thereby prevented from voting. This according to the appellant constituted a non-compliance with the provisions of a written law and thereby provided a reasonable ground for the election result of the Manir state constituency to be declared null and void under s 32(b) of the EOA. At the hearing of the petition the election judge upheld the preliminary objection raised by the respondent and ordered that the petition be struck out with costs. This was the appellant’s appeal against that decision. In his grounds of appeal the appellant contended, inter alia, that the election judge had erred in law in requiring the inclusion of evidence in the petition whereas r 5 of the EPR did not require evidence to be stated in the petition; that the judge had erred in his application of the principles on agency in relation to the contents of the petition; that the judge had erred in relation to the burden of proof in election law; and that the judge had failed to take into account the different requirements to prove misconduct under s 32(a) and (c) of the EOA.

Held, dismi