The election money game

THE election money game is on! Promises of goodies if a party is voted in, such as a long overdue road or a kampung bridge or the abolition of tolls, which are often accompanied by open threats that all this will be denied if the votes do not materialise.

This in flagrant concealment of the stark truth that, in any event, the money and development will come from the public taxpayer – not the personal coffers of the party or its leader.

There is a law called the Election Offences Act. It prescribes what can or cannot be done. The Election Commission (EC) oversees the election to make sure that all is fair and legal. No undue advantage. No bribery. No undue influence. No use of government machinery. No money spent beyond the permitted amount – RM100,000 for a state seat; and RM200,000 for a parliamentary seat.

Any violation is a crime punishable with jail or a fine. The EC is obliged to take action and the seat of the guilty declared vacant. A defeated candidate can also file a petition to declare the election void.

Several such petitions have indeed been pursued in the courts. But courts have imposed a rather high burden of proof.

For example, after the 1978 elections an election petition was filed to set aside the election of the Barisan Nasional candidate Lim Kean Siew (a former Socialist Front party stalwart). On the basis of the then finance minister Tengku Razaleigh's promise to personally give more money to improve the constituency if BN was elected.

The court accepted that he did not say this. Interestingly, the court said that even if the statement was made it was a mere political promise to develop the area. And therefore not a corrupt practice.

In another case, land office officials worked through the night right up to a few hours before the time for voting to deliver titles to Felda settlers in the 1990 election. The settlers had accused the BN government of lying by failing to deliver the titles for years.

The court said this was not corrupt practice because it was the government continuing to function. This despite evidence that never before had the land office worked in these hours; and delivering land titles behind Felda's back, repugnant to its national policy.

Strangely, the judge distinguished between an evil practice and a corrupt practice. He said: "Election is something which must be conducted fairly. To arrange to spend money on the eve of elections in different constituencies, although for general public good, is when all is said and done an evil practice, even if it may not be corrupt practice.

The dividing line between an evil practice and a corrupt practice is a very thin one. It should be understood that energy to do public good should be used not on the eve of elections but much earlier and that even slight evidence might change this evil practice into corrupt practice".

Elsewhere, in India Justice Sinha of the Allahabad High Court convicted then Prime Minister Indira Gandhi of electoral malpractices. On the basis that her election agent was a government servant and that she used government officials for personal election-related work. The prime minister promptly imposed emergency rule to get over this judgment and changed the verdict retrospectively. This eventually led to her downfall.

The judgment of Justice Sinha was hailed all over the democratic world as a great triumph of an independent judiciary, according to a former law minister and lawyer for her opponent.

After Malaysia's 13th general election a Peoples' Tribunal was convened. It heard evidence from more than 70 witnesses. The distinguished panel – comprising eminent foreign and local election experts – concluded that there was: "… considerable evidence that bribery is a common practice in parts of the country ... It is also notable that most of the evidence was of measures intended to benefit BN candidates. And the evidence points in the direction of not only candidates but government officers."

(Report of the People's Tribunal on Malaysia's GE13 (http://www.bersih.org/wp-content/uploads/2014/03/Peoples-Tribunal-on-GE1...))

It is also wrong to use public facilities or commit public monies during the campaign period. The outgoing government party is merely a caretaker; it takes care of routine day-to-day functions. This, the report found, was breached. Governmental fiscal powers were abused, such as: RM8 billion for projects in Cyberjaya, undertaking a memorandum of understanding with Hindraf (a Hindu rights group), and committing huge funds to various groups of voters.

The final verdict of the Tribunal: "… There were multiple failings in the way GE13 was conducted, and that virtually every tenet of a fair election was violated at some place and at some time".

The blame for these was laid squarely on the EC. It did not check the large number of irregularities and illegalities "sufficient to render the results in numerous constituencies void".

Will the EC fulfil its constitutional mandate for GE14? Failing which, as the report concludes: It needs to be redesigned and conceived as a truly independent body. Else "it fails the people of Malaysia".

Gurdial is a former law professor and currently a practising lawyer. Comments: letters@thesundaily.com