Lydia Chai:

A couple of relevant chapters from Prof Abdul Aziz Bari's Malaysian constitution : a critical introduction published in 2003. Btw, he will be on a panel discussion this Sunday at Syed Husin Ali's book launch in Selangor, for those of you who are interested.

Chapter 6: The offices of the Head of State

This is useful for us 'amateurs' who want to know the role of the Yang di-Pertuan Agong, Sultans, the Conference of Rulers etc.

Chapter 16: Elections

Some points Prof makes:

on Election Petitions

"However, it must be admitted that an electoral system that is too dependent on the court is not a good one: a good system must be able to perform without being too dependent on the court; it must be able to weed out the problems itself. The system must have an in-built mechanism to do so.

Prof says the reasons that sole dependence on the courts for petitions is not a good idea:

1. It has been ruled before that the decision of an election court is final and not allowed to be brought up to Court of Appeal. (Yong Teck Lee v Harris Mohd. Salleh & Anor [2002] 3 CLJ 422, [2002] 3 MLJ 230)

2. Certain decisions made by judges in the past have indicated that the courts don't accept the role of making elections free and fair. They also seem to treat corrupt practices lightly as in a case where the minister of finance made a promise to bring development to the area if BN was elected – "the court seems to suggest that it was normal and legitimate for the government to do so" (Re Pengkalan Kota Bye-Election; Teoh Teik Huat v Lim Kean Siew & Anor [1981] 1 MLJ 265).

3. In another case, the court held that corrupt practices are not criminal in nature and here the court ruled that it sat as a civil, not a criminal one. (Hamid bin Mat Noor v Tengku Sri Paduka Raja & Ors [1993] 3 MLJ 533)

4. The court ruled that although Election Offences 1954 (Revised 1969) was passed to prevent corrupt and illegal practices, the court is just a judicial tribunal, not an inquisitorial one. The court also emphasized its function to hear and determine according to law, and not a commission armed with power to inquire into and suppress corruption. This, in a sense, underlines the inability of the court to be the main guardian of electoral fairness. (Sabdin bin Ghani v Mohamad Saidi Lampoh and 25 other election petitions [1983] 2 MLJ 61)

on independence of the EC

"It has been argued above that the manner the Election Commission is to be appointed is important as it would determine the commission's independence and integrity. However apparently it is not the only thing that matters. What is even more important is the integrity and commitment of the commission's members. This was evident in 2000 when the Conference of Rulers, quite contrary to the wording of the provision, seemed to have 'appointed' the commission's chairman who did not seem to have been favoured by the government. That notwithstanding the independence and integrity of the commission does not seem to have significantly improved as a result. Although the Conference has done what it could to improve the image of the commission the problem does not seem to have been solved."

We can discuss further when we delve into the Election Offences Act in (hopefully) a few week's time...