EC’s picture requirements lawful?

THE EC chairperson has announced additional requirements relating to the use of campaign materials in the 14th general election. They relate in the main to a redefining of the term "campaign material". Only two pictures are allowed for use. That of the president and the deputy president of the political party. No other pictures are permitted.

Given that one of the parties (Bersatu) is not allowed registration by the Registrar of Societies, and Pakatan Harapan (PH) is not recognised as such by the registrar, this means that the pictures of the person nominated as the prime minister-elect by PH who is from Bersatu cannot be displayed. On the other hand, the picture of the PM-elect of the BN will be allowed to be displayed.

The EC chairperson justifies this new requirement as "the terms and conditions stated under Section 24B (4) of the Election Offences Act 1954".

First, these are not the terms and conditions stated in this section. The section requires a permit to display, furnish or distribute election campaign materials to the public in a particular constituency. This permit is issued by the state elections officer – who performs his duties for the conduct of elections in the state. He can when issuing the permit determine terms and conditions for the issuance of the permit. These usually relate to normal routine matters relating to the campaign material.

Second, the Election Offences Act defines campaign material to include "any advertisement, leaflet, brochure, flag, ensign, banner, standard, poster, placard, handbill, label or any form of temporary billboard": section 24B(6). Hence this prohibition by the EC is not within the law.

Third, any discretion given to the state elections officer (and not the EC chairperson) must be exercised justly. And he or she must act in a high-principled way. All this is elementary legal policy as determined by courts. Akin to this is the rule that a general discretion must not be so exercised as to frustrate the intended working of the law. In this case the underpinning of the constitutional provisions on elections obliges the EC to conduct the elections in a fair and balanced manner. And in the public interest. Members of the EC must inspire – and not deflate – public confidence.

The Federal Constitution makes explicit that in appointing members of the EC, the Yang di-Pertuan Agong must have regard to the "importance of securing an EC which enjoys public confidence": Article 114(2).

The public may perceive this latest move by the EC – directed in such a short time before nomination day after which the campaign officially starts – as ill-advised and even unfair. First, the campaign material is said to have been already prepared or in the midst of being printed. Second, the other main contesting party will be allowed to have pictures of its PM-elect displayed throughout the country. Third, pictures of this other party's various leaders have recently emerged on huge billboards – under the guise of people thanking them for accomplishing some governmental activity. All of which fits clearly under the definition of campaign material under the law.

Is it too late for the EC to retract these perceived unlawful and unfair last- minute requirements?

Gurdial is a former law professor at Universiti Malaya. Comments: