2) SUMMARY DISMISSALS OF ELECTION PETITIONS
We are greatly concerned with the spate of summary dismissals of the election petitions filed by Pakatan Rakyat candidates with regard to electoral fraud in the 13th general election.To summarily dismiss these petitions purely on so-called technical grounds and ignoring the fact that the issues raised in the petitions are matters of public interest which have a direct bearing on the conduct of free and fair elections.Some of the technicalities raised can be considered frivolous. For example; the petitions for Machang and Selising were struck off on the basis purportedly that the petition was not served personally by the petitioner himself on the respondents. This is quite ridiculous when everyone understands that parties in court act through lawyers and do not go around trying to serve court documents themselves!Judges are also saying that the facts stated in the petitions are not sufficient. However I am advised that provisions also exist in the election law for any party to apply for particulars and for the court to direct provision of such details. Surely this would be a better way to handle disputes when such important issues of election abuses are raised regardless by whom whether BN or PR. - extract from Press Statement issued by Anwar Ibrahim on 29/7/2013
An election petition may be presented to the High Court by any one or more of the following persons:
(a) some person who voted or had a right to vote at the election to which the petition relates;
(b) some person claiming to have had a right to be returned or elected at such election; or
(c) some person alleging himself to have been a candidate at such election.
The Election Court here today dismissed petitions by Pakatan Rakyat to challenge the results of a parliamentary seat and two state seats which were won by Barisan Nasional (BN) in the 13th General Election.They are Air Lanas and Kok Lanas state seats and Ketereh parliamentary seat.Judge Datuk John Louis O'hara also ordered the petitioners to pay a total of RM200,000 in cost to all the respondents including to Air Lanas assemblyman Datuk Seri Mustapa Mohamed. At the same court, O'hara also rejected BN's petitions against two Pas state seats - Mengkebang and Manik Urai and ordered the petitioners to pay RM60,000 in costs. -New Starits Times, 23/7/2013, Six election petitions dismissed
Meanwhile, in the capital, the High Court struck out an election petition for Setiawangsa filed by PKR candidate Ibrahim Yaacob on grounds that the petition was defective.Justice Zabariah Mohd Yusof, in her decision, said the petitioner failed to fulfil the mandatory requirements of the election law in filing the petition. She ordered costs of RM50,000 to be paid to the returning officer (RO) of the Setiawangsa constituency and the Election Commission (EC).Zabariah also ordered costs of RM20,000 to be paid to the first respondent, Ahmad Fauzi, who was also the Barisan Nasional candidate, reports Bernama. - The Sun Daily, 24/7/2013, Election petitions by PR, BN dismissed
In PENANG, the High Court dismissed two petitions filed by PKR's Mohd Baktiar Wan Chik and Datuk Abdul Halim Hussain for both the Balik Pulau parliamentary and Teluk Bahang state seats respectively. Justice Hadariah Syed Ismail dismissed the petitions as both failed to comply with provisions under the Election Petition Rules 1954.Hadariah ordered Mohd Baktiar to pay costs of RM40,000 each to three respondents. The respondents are Balik Pulau MP Datuk Seri Dr Hilmi Yahaya, the constituency RO and EC.She also ordered Abdul Halim to pay RM10,000 each in costs to BN Teluk Bahang assemblyman Datuk Shah Headan Ayoob Hussain Shah, the constituency RO and EC. - The Sun Daily, 24/7/2013, Election petitions by PR, BN dismissed
"...The second trend is awarding high costs on the petitioners when their petitions are struck off. Petitioners have been ordered to pay as much as RM120,000 in the case of BalikPulau.I am informed by lawyers that such costs are not in line at all with the trend of costs awarded for similar civil litigation. For example similar preliminary objections in the High Court will probably be awarded RM5,000 to RM10,000. Full appeals in the Court of Appeal are awarded RM15,000 to RM 20,000.Such high costs are oppressive bearing in mind the public interest nature of the litigation and invites the inference that there is a decided policy to inflict punitive costs to discourage petitions. Judge Hadhariah Syed Ismail handling BalikPulau was heard to say that the RM30,000 costs that were awarded for the DUN TelokBahang petition against the KEADILAN petitioner were not high enough and proceeded to award RM 120,000..." - extract from Press Statement issued by Anwar Ibrahim on 29/7/2013
(2) When any matter is not expressly provided for in the Election Petition Rules 1954, the High Court Rules 1980 [P.U.(A) 50/1980] shall apply.
Order 92 Inherent powers of the Court. (O. 92 r. 4 Rules of the High Court 1980)
For the removal of doubts it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.
Order 1A Court or judge shall have regard to justice. (Rules of the High Court 1980)
In administering any of the rules herein the court or a judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of the rules herein.
Order 2 Effect of Non-Compliance.(Rules of the High Court 1980)
Rule 3. Preliminary objection for non-compliance of rules not allowed (O 2 r 3).
A court or judge shall not allow any preliminary objection by any party to any cause or matter or proceedings only on the ground of noncompliance of any of these Rules unless the court or judge is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice.