IN his recent statement, a deputy minister and Umno Supreme Council member argued that it was not wrong for ministers or ministries to organise programmes or announce allocations during by-elections.
In defending his argument, he contended that such matters had been brought to court prior to this, and the court’s decisions revealed that they (the ministers) were there based on their government leadership positions to meet the people, and coincidentally, there was a by-election.
Therefore, he reasoned, it is not an electoral offence.
Bersih, on the contrary, took exception to his remarks.
As far as Bersih is concerned, using government machinery and resources for campaigning is against internationally recognised good practices when it comes to ensuring free and fair elections.
Bersih also cited Article 4(1) of the Inter-Parliamentary Union Declaration, which stipulates that the state must ensure there is a separation between the government and party to ensure free and fair elections.
Bersih equally relied on the court’s judgement, which annulled the victory of Kuala Terengganu MP Ahmad Amzad Hashim on June 27 last year after Amzad’s opponent succeeded in proving that corruption had taken place, intending to influence voters during the 15th general election.
In addition to that, Bersih also relied on Prime Minister Datuk Seri Anwar Ibrahim’s own instruction on June 12 for cabinet members to adhere to electoral laws when campaigning for the Sg Bakap by-election.
Therefore, Bersih argued, the deputy minister’s excuses ran contrary to his boss’s own instructions.
As a lawyer, I have handled a plethora of election petition cases throughout Malaysia, hence, I can say that I am quite familiar with a slew of electoral laws that are currently enforced in Malaysia.
By virtue of Section 2 of the Election Offences Act 1954, the word election is defined as follows “an election held in accordance with the provisions of any written law relating to the election of persons to be members of the Dewan Rakyat, a legislative assembly, or a local authority.”
Based on the said definition, one may argue that any election that is not held in accordance with the provisions of any written law relating to the election could not be considered to be a true, genuine, free, and fair election.
Despite the fact that one may not find the phrase “free and fair” election in any provision contained in the Federal Constitution relating to elections (see Part VIII), it does not mean the Election Commission (EC) is not mandated to hold a free and fair election.
After all, there are also many things that are not spelled out in the constitution, such as the post of deputy prime minister.
Constitutional conventions normally plug in such constitutional holes.
It goes without saying that a free and fair election is a sine qua non of a real and functioning democracy.
Inherent in the doctrine of free and fair elections is the principle of fair play and a level playing field.
Lest we forget, in the current Sg Bakap by-election, the electoral fight is not between the government and any political party that participates in the contest.
On the contrary, the battle is between political parties only. Hence, both parties must agree to the same rights and opportunities.
It would be contrary to the basic tenets of a free and fair election if one of the parties is positioned in unfair advantages against its opponent.
To put it in simpler terms, it would be highly unfair for ministers in the present government to unfairly use their status or ministries in conducting their election campaign in such a manner.
Be that as it may, any attempt to unduly influence the voters via declarations of the approval of government or ministry projects during the by-election campaign would be clearly against the provisions of any written law relating to the election, such as the Election Offences Act.
It would also run against the principle of a free and fair election.
The argument that the declarations of government or ministry projects are coincidentally taking place during the by-election would, with due respect, insult people’s intelligence!
After all, there are no laws that deter the ministers from publicly proclaiming such projects on other dates. – June 26, 2024
Mohamed Hanipa Maidin is a former deputy law minister and has a master’s degree in international law