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Phantoms on the Roll in Sabah

Judgment by Justice Datuk Hj Muhammad Kamil bin Awang on Election Petition No K11 of 1999

kamil 28.1 The Electoral Roll

28.1.5. The petitioner, Chong Eng Leong @ Ching Eng Leong (PWS), 54 years old and a surgeon by profession, stood as a PBS candidate in this election, and lost to the 3rd respondent.

28.1.6. The primary contention was that the certification of the 1998 Electoral Roll for Likas Constituency was fraudulent as there were illegal practices in the registration and preparation of the electoral roll....

28.1.7. The electoral roll for Likas Constituency was certified by SPR in Decernber 1998. Prior to that date, there were 4,585 objections raised in respect of List A and 246 objections in List B. List A consists of names of voters in a constituency... List B consists of names of voters who had made applications for transfer of constituency....

28.1.8. The petitioner testified that there was no hearing in respect of the 4,585 objections in List A, and as such he made an appeal against the non-hearing of the objections to SPR, Kuala Lumpur, which drew a blank.

28.1.9. Of the 246 objections in List B, only 10 objectors were present at the inquiry held on 15th November 1998. As a result 19 names were deleted in List B....

28.1.10. There were 4,197 persons having dubious identity cards (Exhibit P15) and the petitioner had written a letter dated 20th April, 1999 to the JPN about them but there was no response. Later his counsel wrote a letter (Exhibit P16) dated 8th September l999 to JPN on the same subject matter and received the same treatment.

28.1.11. On another occasion he received from the public 36 cases of dubious identity cards (Exhibit P25 (1-36)) which names appeared in the electoral roll for Likas Constituency, and he lodged a report with the police, vide Kota Kinabalu Report No. 1438/1999. It appeared that no investigation had been carried out on the report.

28.1.12. The petitioner’s evidence found corroboration in the testimony of the Pegawai Pendaftar Likas, (Registering Officer Likas), Ewol B Muji @ Edward Ewol Muji (PW10).

28.1.13. As a Registering Officer, he registered electors (voters) for the State Election, and he received objections from voters. He testified that he received 4,585 objections to List A and 246 objections to List B, Regarding the objections to List A, there was no public inquiry held. The reason being that there was a strict instruction by SPR that no objection to List A could be entertained except in cases of death or disqualification. The instructions were contained in SPR’s letters dated 7th and 8th October 1998 (Exhibits P21 and P22) addressed to Pegawai Pilihanraya Negeri Sabah and all Pegawai Pendaftar. A letter ref. SPR(S)273/(42) dated 7th October 1998 (Exhibit P22) addressed to Pegawai Pilihanraya Negeri Sabah, which stated, inter alia:-

“2. Sukacita dimaklumkan bahawa Suruhanjaya Pilihanraya telah memutuskan bantahan terhadap Senarai “A” 1997 tidak akan diterima melainkan atas alasan kematian atau hilang kelayakan. Ini bermakna bantahan kepada Senarai “A” 1997 yang diterima atas alasan-alasan selain yang dinyatakan tersebut dari mana-mana pembantah ditolak oleh Pegawai Pendaftar” ....

28.1.14. The Pegawai Pilihan-raya Negeri Sabah in its letter ref. PPN(O) 1/6(66) dated 8th October 1998 (Exhibit P21) conveyed the decision of SPR to all Pegawai Pendaftar (Registering Officers) including PW10, as follows:-

“ … dimaklumkan bahawa Suruhanjaya Pilihannya Malaysia telah memutuskan bahawa bantahan Senarai A Daftar Permilih 1997 yang telah disahkan pada 31 Disember 1997 tidak boleh diterima kecuali atas alasan kematian atau hilang kelayakan.”

28.1.15. As a result, the petitioner and a few others made applications to PWI0 appealing against the decision not to hold a public inquiry, whereby the applications were forwarded by PW10 to SPR (HQ) Kuala Lumpur (Exhibit P49). There was no response.

28.1.16. PW10 further testified that he did not verify the identity cards during the registration of voters. It was not a practice that he had to verify identity cards nor the citizenship documents of those people who wish to register in the electoral roll. In other words, PW10 just followed orders of his superiors not to hold a public inquiry to an objection except in cases of death or disqualification. Superior orders or state authority are no defence to an action otherwise illegal....

28.1.18. The SPR has to face the truth. The 4,585 objections in List A were cases of persons having dubious identity cards or persons who had been convicted of having fake identity cards. The people who raised the objections were exercising their rights as citizens, and it is unthinkable that the SPR should shut-off the objections in List A without a public inquiry. It is a constitutional wrong for SPR to have rejected the objections outright. More importantly, it is wrong for SPR to allow non-citizens and disqualified persons to be on the electoral roll as voters. It appears that the certification of the electoral roll for the 1998 Likas Constituency by SPR is ultra vires the Constitution and is in fact illegal.

28.2 Identity Card Bot Proof of Citizenship

28.2.1 The identity card is not proof of citizenship. It appears that the SPR takes the identity card as proof of citizenship and a person who produces a blue identity card will be registered in the electoral roll. PW10 (Pegawai Pendaftar Likas) testified at the trial that it was the normal practice that the Pegawai Pendaftar accepts for registration on the electoral roll persons who have blue identity cards and also those with temporary identity cards, that is form JPN 1/9 and form JPN 1/ll. This has been much abused. For example, INDAH MAHIYA BTE ABDULLAH had lost her blue identity card and reported the loss to the police, vide Report No, 2429/98. Based on the police report she was issued with a temporary identity card, form JPN 1/9. It seemed that based on the same police report No. 2429/98; seven other people were issued with form JPN 1/9 (i.e.temporary identity card)…

28.2.3 In another election case, No. K 1/99 before this court, the petitioner had notified the SPR that there were cases of the use of duplicate identity card numbers in the registration of names in an electoral roll [5 cases given]

28.2.5 The Tawau Court had convicted the following persons in 1996 for the offence of possession of fake identity cards:- (3 names given)...

But their names were not deleted and were still in the 1998 certified electoral roll for Likes Constituency.

28.2.6. How easily many of the immigrants, Filipinos and Indonesians, had obtained citizenships in this maner, i.e. through their applications for identity cards, was well illustrated by the testimony of ASAINAR B IBRAHIM @ HASSAN, (PWll), a former District Chief for Bandar Sandakan from 1982 - 1985. A system which was established before Malaysia Day 1953 where an appointment of District Chief, a parallel appointment (a political appointment), vis-a-vis the District Officer was appointed by the government PW11 was a Pegawai Perbadanan Kemajuan Sabah, later Ahli Lembaga Bandar Sandakan and Ketua Daerah Sandakan in 1985.

28.2.7 He testified that there were two categories of applicants for the blue identity cards.

Those persons under 12 years old and who have birth certificates have no difficulty in obtaining blue identity cards. Those above 12 years old and who have no birth certificates may obtain identity cards by using form HMR 10 (JPN). This form is filled up by the parents and submitted to the District Chief.... When PW11 was first appointed as the District Chief, he had no idea of what was going on and he recommended, without question, the 1,000 and more of such applications that he received from the Native Court and, on his recommendation, they were issued with blue identity cards. He said that “the main factor causing loss to Berjaya Government in 1985 to PBS was because Berjaya leaders sold the rights of Sabahans to foreigners, totaling 40,000 by making them blue identity cards, thus they became citizens.” He was a Berjaya Party candidate in Sungei Sibuga Constituency in the 1986 State Election but lost.

In 1998 it was alleged that he was involved in a project to process and distribute blue identity cards to illegal immigrants in Sabah, the Filipinos and the Indonesians. On 9th July 1998 he was detained under the ISA for 60 days and thereafter he was placed under restricted residence for 2 years....

PW13 Mutalib Md Daud, is a former Executive Secretary for Silam Umno Division and is still a member of Umno. Mutalib was born in Kg. Lanai, Kedah and initially held a Malaya identity card. In 1970 he migrated to Sabah under the “Untuk kemajuan Ba” programme and settled down at a village name Kg. Burong, Lahad Datu where he found that a large number of illegal immigrants from Indonesia and Philippines had settled down.

He observed that there were numerous immigrants who had obtained blue identity cards in a relatively short time, 3 months or 3 years, while it took him 23 years to change his Malayan identity card into an identity card of Sabah through the normal process. He testified that of the 43,000 new Umno members recruited at the time, only 14,000 had genuine blue identity cards, the rest he did not know how they got their blue identity cards.

From 21st October 1996 there was an exercise to recruit Umno members for 3 days which attracted 10,211 new Umno members. They applied for identity cards, but only 180 applications for identity cards from these members were approved by Jabatan Pendaftaran Negara, and the rest were rejected.

The instances of non-citizens and phantom voters in the electoral roll as disclosed at their trial may well be the tip of the iceberg....

The failure of SPR to maintain an electoral roll in accordance with the law makes the electoral roll illegal. Such is the case in the 1998 electoral roll for Likas Constituency (N13). I would in the circumstances, uphold the petitioner’s petition that the 1998 electoral roll for Likas Constituency (N13) was illegal.

Phantom Voters
Operation Gembeling

Radin Malleh (PW14), a Member of Parliament and the Secretary General of PBS, holds a LLB degree from Kent University, and had served the police force for 20 years, holding the rank of DSP when he left the force in 1990 to join politics. As the Secretary General of PBS he received a lot of information and material of public interest from members of the public, including documents of pengundi luar or phantom voters.

In early March 1999 he received via Pos Laju a box containing lists of names and dubious identity card numbers of 40,000 people and he had forwarded them to the police, vide report No. 1061/99 dated 10th March 1999 (Exhibit P60). 31,845 names were found in the 1998 electoral roll, of which 2,975 names were registered in the Likas electoral roll.

He lodged a report with the police, re: pengundi luar three times but unfortunately no action was taken. In particular, 12 fake identity cards were sent to the police for investigation, vide report KK 1794/96 dated 18th January 1996, and 10 names appeared in the 1998 electoral roll of Likas Constituency, N13....

Between 1996-1998 several people were arrested under ISA for involvement in the issuing of fake identity cards: Mohd Agjan b Ariff, Jabar Khan, Bandi Pilo and Shamsul Alang - all from Sabah Umno; and Mohd Nasir Sunjit, Asbi b Abdul Karim, Jamah Ariffin, Asli bin Ariffin and Kee Dzulkifli b Kee Abdul Jalil - all were officers in JPN Sabah. They were involved in the Ops Gembeling.

This operation called Ops Gembeling whereby the JPN officers were asked to collect the names of the illegal immigrants, and with the aid of some political leaders, they were given the blue identity cards. PW14 had written to JPN in respect of these illegal immigrants who were given blue identity cards (Exhibit P54) and he also wrote to the Ketua Pengarah Pendaftaran Negara Malaysia on 15th December 1998 before the electoral rolls were certified by SPR on 31st December 1998. There was no response.

The target of this operation was the Malays of Bugis origin, and these people formed an association known as Persatuan Kebajikan Bugis Sabah. For example, Pirsing Siraji, 22 years old, was in possession of identity card No. H0481706, and his name was found in the 1998 electoral roll (but with the identity card No. H04817096) for Likas Constituency. It is noted that the Sabah identity card number has 7 digits, Pirsing had an identity card number with 8 digits, and he was convicted by the court on 28th September 1992.

On 15th December 1998 when PW14 wrote to the JPN for verification of the identity cards, there was no response. On 7th October 1999 Hamid b Hassan wrote an open letter (Exhibit P66) to the Deputy Prime Minister - there was no response.

As a Member of Parliament, PW14 raised this issue in Parliament, in a letter addressed to Setiausaha Dewan Rakyat (Exhibit P65) and it was rejected under Rule 23(1)(f) as it was a secret matter which the government could not disclose....

PW14 referred to a letter (ID14) written by the Chief Information Officer Umno (Datuk Hj Karim bin Abd Ghani) PW17, which was sent to 31 State Constituencies .... PW17 in his testimony stated that he did not sign the letter (ID14) and he suggested that the signature was forged. This letter was distributed to all Umno branches in Sabah, and in the trial of three persons (Exhibit P62) in Tawau High Court the Judge had accepted the evidence of the accused that they were just following the directions of a superior as contained in ID14. If ID14 carries a forged signature, therefore it is a forged document. This is a serious allegation, but why is it that PW17 did not publicly disown it as soon as he knew that ID14 had been sent and received by all Umno branches in Sabah? Why didn’t PW17 or Umno refute this at the trial in the High Court at Tawau? ... But there is no evidence of this alleged forgery (ID14) and it was never reported to the police. Umno Chief Information Officer thought it fit to ignore and allow ID14 to be made use of extensively, including in court proceedings, without taking any action or step to deny or stop it. As a matter of fact, PW17 had made no mention of ID14 at all in his affidavit in Petition No. K 7/99. The veracity of PW17’s evidence here is highly questionable.

Corrupt Practices and Bribery

The allegations of corrupt practices or bribery made by the petitioner in the petition were too general in nature. PW16 testified that days before the election day, many candidates from various political parties including the 3rd respondent and their supporters, visited the constituency. Some brought and distributed to the people food stuff such as 25 kg rice each, milk, sugar, cooking oil and flour; some were supplied building materials such as zinc roofs, planks, boards and water tanks; the more ambitious, built roads, canals, boats and perahus. Some distributed money. The display of generous concern and care is a very welcome thing to the voters although it happens at a five-yearly interval, as a prelude to each election. It is fast becoming a Malaysian way of life, a tradition as it were, that prior to an election, contesting candidates will visit their constituency with all types of gifts or presents in their endeavour to win or influence the voters to their side. Whatever it is, there is not sufficient evidence before the court to support the allegation of corrupt practices by the BN candidates. There was no specific charge that could be brought against the 3rd respondent in the case. Corrupt practice is quasi criminal in nature and the petitioner has to prove beyond reasonable doubt the offence of corrupt practice. In the case of WONG SING NANG v TIONG THAI KING (1996) 4 MLJ 261, the court held that there was no direct evidence that the voters in the constituency were in any way influenced by the gift. Therefore the petitioner had failed to prove beyond reasonable doubt the offence of bribery or corrupt practices.

Conspiracy?

“The gist of the tort of conspiracy is not the conspiratorial agreement alone, but that agreement plus the overt act causing damage . . . . The tort of conspiracy, however, is complete only if the agreement is carried into effect so as to damage the plaintiff.” per Salmon J. in MARRINAN v VIBARI (1962). 1 All ER p. 871.

HALSBURY’s LAWS OF ENGLAND, 4th Edition Vo. 45 p. 721 states that:-

“In order to make out a case of conspiracy the plaintiff must establish -
1. an agreement between two or more persons;
2. an agreement for the purpose of injuring the plaintiff; and
3. that acts done in execution of that agreement resulted in damage to the plaintiff.”

Warrington LJ in DAVIES v THOMAS (1920) 2 Ch. 189 said:-

‘’That is to say, to be a conspiracy - that is an unlawful conspiracy, one which gives rise to either an indictment or a right of action - it must have an unlawful object, that is, the act which it is intended to bring about must be in itself unlawful, or, if not in itself unlawful, then it must be brought about by unlawful means.”

Lord Dunedin in SORRELL v SMITH & ORS (1925) AC 700 held that an act that is legal in itself will not be made illegal because the motive of the act may be bad.

I can find no evidence that there was a conspiracy between the Government and the Barisan Nasional (BN) at the highest level as suggested by Mr Maringking. Not an iota of evidence to show the existence of an agreement between the Prime Minister or any other Minister with the Saban BN regarding the registration of disqualified persons or non-citizens in the electoral roll. The semblance of an agreement in the Operation Gembeling or the ‘Mahathir’s Project’ where blue identity cards were sold to these people at RM300 a piece, evidently has no nexus to connect these to the fake identity cards sold. It is a mere gimmick to lend legitimacy to these operations. It is incredible to say that the government is involved in a conspiracy to register phantom voters especially as no such agreement existed between the government and the BN. It is true that too many politicians and public officials have exercised power and responsibility not as a trust for public good but as an opportunity for private gains.

It has been brought to my attention that the SPR has come up wtih the revised 1999 electoral roll for Sabah in which more than 19,900 names have been dropped there from, presumably the names are those who have died and/or have lost their eligibility to vote as citizens.

No Response

I seize this opportunity to record a few observations that a worrisome trend or culture, not borne out of Malaysian culture, has evolved where public institutions or government departments do not seem to care to respond to letter or reports received from the public. Such letters or reports seemed simply ignored, invariably no response or acknowledgement or receipt whatsoever has been made, for example, from personal knowledge in a few cases; where my son had applied for a temporary work permit which was refused, and I wrote an appeal to the authority concerned; and in another case, my daughter had applied for a scholarship for a one-year post graduate course. In both cases there was no acknowledgement despite reminders, although earlier on, personal assurances of favourable consideration had been given. Rgrettably this is the very antithesis to good governance in as much as a threat to the government’s effort to foster good relationship and integration between East and West Malaysia.

It has been said that a government is a trustee of the people, and being elected by the people, it owes a higher responsibility to the people. The government must act honestly and responsibly.

Directive Over the Phone

The only guide to a man is his conscience, the only shield to his memory is the rectitude and the sincerity of his action. In my view, it is an insult to one’s intelligence to be given a directive over the phone that these petitions should be struck off without a hearing, and above all, it is with a prescient conscience that I heard these petitions. God has given me the strength and fortitude, as a lesser mortal, to act without fear or favour, for fear of a breach of oath of office and sacrifice justice, and above all to truly act as a Judge and not a ‘yes-man”.

In conclusion, I would declare that the 1998 Electoral Roll for Likas Constituency (N13) is illegal, and that the election held in March 1999 for Likas Constituency is null and void. I will inform the SPR of this decision in due course.

In Petition No. K.5 of 1999, costs to the petitioner against the 2nd respondent, and in Petition No. K11 of 1999 costs to the petitioner against the 1st and 2nd respondents. In both cases, costs are to be taxed unless agreed.

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