Report exonerating candidate in certain cases of corrupt and illegal practice by agents
Where, upon the trial of an election petition respecting an election, the Election Judge reports that a candidate of such
election has been guilty by his agents of the offence of treating or undue influence or of any other corrupt or illegal practice in reference to such election, and the Election Judge further reports, after giving the Attorney General, or in the case of an election to the Legislative Assembly in Sabah and Sarawak, the State Attorney General, an opportunity of being heard, that the candidate has proved to the Court—
(a) that no corrupt or illegal practice was committed at such election by the candidate or his election agent and the offences mentioned in the said report were committed contrary to the orders and without the sanction or connivance of such candidate or his election agent;
(b) that such candidate and his election agent took all reasonable means for preventing the commission of corrupt and illegal practices at such election;
(c) that the offences mentioned in the said report were of a trivial, unimportant and limited character; and
(d) that in all other respects the election was free from any corrupt or illegal practice on the part of such candidate and of his agents,
then the election of such candidate shall not, by reason of the offences mentioned in such report, be void, nor shall the candidate be subject to any incapacity under this Act.
Power to except innocent act from being illegal practice, etc.
Where, on application made, it is shown to an Election Judge or to a Judge of the High Court by such evidence as seems to the Judge sufficient—
(a) that any act or omission of a candidate at any election, or of his election agent or of any other agent or person, would, by reason of being the payment of a sum or the incurring of expense in excess of any maximum amount allowed by this Act, or of being a payment, engagement, employment, or contract in contravention of this Act, or of otherwise being in contravention of any of the provisions of this Act, be, but for this section, an illegal practice; and
(b) that any such act or omission arose from inadvertence or from accidental miscalculations or from some other
reasonable cause of a like nature, and, in any case, did not arise from any want of good faith,
and in the circumstances it seems to the Judge, after giving the candidates, the returning officer, and any elector within the constituency or electoral ward an opportunity of being heard, to be just that the candidate in question and the said election and other agent and person, or any of them, should not be subject to any of the consequences under this Act of the said act or omission, the Judge may make an order allowing such act or omission to be an exception from the provisions of this Act which would otherwise make the same an illegal practice, payment, employment, or hiring, and thereupon such candidate, agent or person shall not be subject to any of the consequences under this Act of the said act or omission.
Authorized excuse for non-compliance with provisions as to return and declaration respecting election expenses
(1) Where the return and statements respecting election expenses of a candidate at an election have not been transmitted as required by this Act, or being transmitted contain some error or false statement, then—
(a) if the candidate applies to an Election Judge or a Judge of the High Court and shows that the failure to transmit such return and declarations, or any of them, or any part thereof, or any error or false statement therein, has arisen by reason of his illness, or of the absence, death, illness, negligence or misconduct of his election agent or of any clerk or officer of such agent, or by reason of inadvertence or any reasonable cause of a like nature, and not by reason of any want of good faith on the part of the applicant; or
(b) if the election agent of the candidate applies to an Election Judge or a Judge of the High Court and shows that the failure to transmit the return and statements which he was required to transmit, or any part thereof, or any error or false statement therein, arose by reason of his illness, or of the death, illness, negligence or misconduct of any prior election agent of the candidate, or of the absence, death, illness or misconduct of any clerk, or officer of an election agent of the candidate, or by reason of inadvertence or of any reasonable cause of
a like nature, and not by reason of any want of good faith on the part of the applicant,
the Judge may, after such notice of the application, and on production of such evidence of the grounds stated in the application and of the good faith of the application, and otherwise, as to the Judge seems fit, and after giving the other candidates, the State Elections Officer and any elector within the constituency or electoral ward an opportunity of being heard, make such order for allowing an authorized excuse for the failure to transmit such return and statements, or for an error or false statement in such return and statements, as to the Judge seems just.
(2) Where it appears to the Judge that any person, being or having been election agent, has refused or failed to make such return or supply such particulars as will enable the candidate and his election agent, respectively, to comply with the provisions of this Act as to the return and statements respecting election expenses, the Judge before making an order allowing the excuse as in this section mentioned shall order such person to attend before the Judge, and shall, unless he attends and shows cause to the contrary, order him to make the return and statements, or to deliver a statement of the particulars required to be contained in the return, as to the Judge seems just, and to make or deliver the same within such time and to such person and in such manner as the Judge may direct, or may order him to be examined with respect to such particulars, and, in default of compliance with any such order, such person shall be guilty of an illegal practice.
(3) The order may make the allowance conditional upon the making of the return and statements in a modified form or within an extended time, and upon the compliance with such other terms as to the Judge seems best calculated for carrying into effect the objects of this Act, and an order allowing an authorized excuse shall relieve the applicant for the order from any liability or consequences under this Act in respect of the matter excused by the order; and where it is proved by the candidate to the Judge that any act or omission of the election agent in relation to the return and statements respecting election expenses was without the sanction or connivance of the candidate, and that the candidate took all reasonable means for preventing such act or omission, the Judge shall relieve the candidate from the consequences of such act or omission on the part of his election agent.
(4) The date of the order, or, if conditions and terms are to be complied with, the date at which the applicant fully complies with them, is referred to in this Act as the date of the allowance of the excuse.
Period for making application for excuse
An application for an authorized excuse under section 30 shall be made before the expiration of the period of thirty-one days that is specified in section 23 and a copy of the application shall be served on the State Elections Officer.
P ART VI GROUNDS FOR AVOIDING ELECTIONS
Avoidance by conviction of candidate
(1) The election of a candidate at any election is avoided by his conviction for any corrupt or illegal practice at such election.
(2) Within fourteen days of the conviction by a Sessions Court of a candidate for any corrupt or illegal practice at an election, the Sessions Court Judge or the Registrar of the Sessions Court shall certify the Court’s determination—
(a) to the Election Commission in the case of an election of a person to be a member of the Dewan Rakyat, a Legislative Assembly, a local authority under the jurisdiction of the Federal Government or of any other election that the Election Commission may be authorized to conduct; or
(b) in the case of any other election, to the State Authority.
Avoidance of election on election petition
The election of a candidate at any election shall be declared to be void on an election petition on any of the following grounds only which may be proved to the satisfaction of the Election Judge:
(a) that general bribery, general treating or general intimidation have so extensively prevailed that they may be reasonably supposed to have affected the result of the election;
(b) non-compliance with the provisions of any written law relating to the conduct of any election if it appears that the election was not conducted in accordance with the principles laid down in such written law and that such non-compliance affected the result of the election;
(c) that a corrupt practice or illegal practice was committed in connection with the election by the candidate or with his knowledge or consent, or by any agent of the candidate;
(d) that the candidate personally engaged a person as his election agent, or as a canvasser or agent, knowing that such person had within seven years previous to such engagement been convicted or found guilty of a corrupt practice by a Sessions Court, or by the report of an Election Judge; or
(e) that the candidate was at the time of his election a person disqualified for election.
P ART VII ELECTION PETITIONS
Appointment and powers of Election Judge
(1) Every election petition shall be tried by the Chief Judge or by a Judge of any High Court nominated by the Chief Judge for the purpose:
Provided that the Chief Judge shall not nominate a Judge of a High Court of which he is not Chief Judge without consulting the Chief Judge of that High Court.
(2) Witnesses shall be subpoenaed and sworn in the same manner as nearly as circumstances admit as in a trial by the High Court in the exercise of its original civil jurisdiction and shall be subject to the same penalties for the giving of false evidence.
(3) On the trial of an election petition under this Act the Election Judge may, by order under his hand, compel the attendance of any person as a witness who appears to him to have been concerned in the election to which the petition refers, and any person refusing to obey such order shall be guilty of contempt of court. The Election Judge may examine any witness so compelled to attend or any person in Court, although such witness
is not called and examined by any party to the petition. After the examination of a witness as aforesaid by the Election Judge, such witness may be cross-examined by or on behalf of the petitioner and respondent, or either of them.
(4) Unless otherwise ordered by the Chief Judge, all interlocutory matters in connection with an election petition may be dealt with and decided by any Judge of the High Court whose decision shall be final.
Who may present petition
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.
Relief which may be claimed
All or any of the following reliefs to which the petitioner may be entitled may be claimed in an election petition:
(a) a declaration that the election is void;
(b) a declaration that the person was not duly elected or ought not to have been returned;
(c) (Deleted by Act A1177);
(d) where the seat is claimed for an unsuccessful candidate on the ground that he had a majority of lawful votes, a scrutiny.
Time for completion of trial of election petition
The trial of every election petition shall be completed not later than six months from the date of the presentation of the election petition.
Determination of Election Judge
(1) At the conclusion of the trial of an election petition, the Election Judge shall—
(a) determine whether the candidate whose return or election is complained of was duly returned or elected or whether the election is void; and
(b) pronounce such determination in open court.
(2) The Election Judge shall within fourteen days of making his determination under subsection (1) certify his determination—
(a) to the Election Commission in the case of an election of a person to be a member of the Dewan Rakyat, a Legislative Assembly, a local authority under the jurisdiction of the Federal Government or of any other election that the Election Commission may be authorized to conduct; or
(b) in the case of any other election, to the State Authority.
Appeal
(1) The petitioner or a candidate whose return or election is complained of may appeal against the determination of an Election Judge to the Federal Court.
(2) Every appeal under this section shall be presented within fourteen days from the date of the determination of the Election Judge under section 36 and such appeal shall be presented in accordance with the rules of court applicable to appeals to the Federal Court.
(3) The Registrar of the Federal Court shall, within fourteen days from the date of the decision of the Federal Court certify such decision—
(a) to the Election Commission in the case of an election of a person to be a member of the Dewan Rakyat, a Legislative Assembly, a local authority under the jurisdiction of the Federal Government or of any other election that the Election Commission may be authorized to conduct; or
(b) in the case of any other election, to the State Authority.
Time for completion of hearing of appeal
Notwithstanding any other law to the contrary, an appeal against the determination of an Election Judge shall be heard and decided upon by the Federal Court within six months from the date of presentation of the appeal.
Effect of decision of Election Judge or Federal Court
At the end of the period specified in subsection 36A(2), if there is no appeal to the Federal Court, or upon the certificate being given under subsection 36A (3), if there is an appeal to the Federal Court, the determination of the Election Judge or the decision of the Federal Court, shall be final, and the return or election shall be confirmed or the election shall be void and in such case within thirty days from the end of such period or from the date the certificate is given, the Election Commission or the State Authority, as the case may be, shall give notice of election in the constituency or electoral ward concerned in accordance with the certificate given under subsection 36A (2) or (3).
Report of Judge or Registrar as to corrupt or illegal practice
(1) At the conclusion of the trial of an election petition or of the hearing of an appeal against the determination of an Election Judge, the Election Judge or the Registrar of the Federal Court, as the case may be, shall also report in writing—
(a) to the Election Commission, in the case of an election of a person to be a member of the Dewan Rakyat, a Legislative Assembly, the city council of the federal capital or of any other election that the Election Commission may be authorized to conduct; or
(b) in the case of any other election, to the State Authority—
(i) whether any corrupt or illegal practice has or has not been proved to have been committed by or with the knowledge and consent of any candidate at the election, or by his agent, and the nature of such corrupt or illegal practice, if any; and
(ii) the names and descriptions of all persons, if any, who have been proved at the trial to have been guilty of any corrupt or illegal practice.
(2) Before any person, not being a party to an election petition nor a candidate on behalf of whom the seat is claimed by an election petition, is reported by an Election Judge or the Registrar of the Federal Court under this section, the Election Judge or the Registrar of the Federal Court shall give such person the right to be represented by counsel and an opportunity of being heard and of giving and calling evidence to show why he should not be so reported.
(3) When an Election Judge or the Registrar of the Federal Court reports that a corrupt or illegal practice has been committed by any person, that person shall be subject to the same incapacities as if at the date of the said report he had been convicted of that practice and a person shall be subject to the same incapacities if he was a candidate at the election and the Election Judge or the Registrar of the Federal Court reports that such corrupt or illegal practice was committed with his knowledge and consent or by his agent.
(4) The Election Commission or the State Authority (as the case may be) shall cause a copy of such report to be published in the Gazette, and it shall be the duty of every registering officer forthwith to peruse the report and forthwith to delete from the register or list of electors assigned to him the name of every person appearing from the report to be incapable of voting at an election.
Time for presentation
(1) Every election petition shall be presented within twenty-one days of the date of publication of the result of the election in the Gazette:
Provided that—
(a) an election petition questioning the return or the election upon the ground of a corrupt practice and specifically alleging a payment of money or other act to have been made or done since the date aforesaid by the person whose election is questioned or by an agent of the person or with the privity of the person or his election agent in pursuance or in furtherance of such corrupt practice may, so far as respects such corrupt practice, be presented at any time within twenty-eight days after the date of such payment or act;
(b) an election petition questioning the return or the election upon an allegation of an illegal practice may, so far as respects such illegal practice, be presented within the time following:
(i) at any time before the expiration of fourteen days immediately after the date of the publication in the Gazette of the notice required by section 24 as to the election expenses of the person whose election is questioned;
(ii) if the election petition specifically alleges a payment of money or other act to have been made or done since the said date by the person whose election is questioned or by an agent of the person or with the privity of the person or of his election agent in pursuance or in furtherance of the illegal practice alleged in the petition, the petition may be presented at any time within twenty-eight days immediately after the date of such payment or other act.
(2) An election petition presented in due time may, for the purpose of questioning the return or the election upon an allegation of a corrupt or illegal practice, be amended with the leave of a Judge of the High Court within the time within which an election petition questioning the return or the election upon that ground may be presented.
(3) For the purposes of this section, where there is an authorized excuse for failing to make and transmit the return and statements respecting election expenses, the date of the allowance of the excuse or, if there was a failure in two or more particulars and the excuse was allowed at different times, the date of the allowance of the last excuse shall be substituted for the date of the publication of the notice mentioned in the proviso to paragraph (1)(b).
Prohibition of disclosure of vote
No elector who has voted at any election shall, in any proceeding to question the election, be required to state for whom he has voted.
Votes to be struck off at a scrutiny
(1) On a scrutiny at the trial of an election petition the following votes only shall be struck off:
(a) the vote of any person whose name was not on the register or list of electors assigned to the polling station at which the vote was recorded or who has not been authorized to vote at such station;
(b) the vote of any person whose vote was procured by bribery, treating, or undue influence;
(c) the vote of any person who committed or procured the commission of personation at the election;
(d) where the election was an ordinary election, the vote of any person proved to have voted at such ordinary election in more than one constituency or electoral ward;
(e) the vote of any person, who, by reason of a conviction of a corrupt or illegal practice or by reason of the report of an Election Judge or the Registrar of the Federal Court, or by reason of his conviction of an offence under section 3 was incapable of voting at the election; and
(f) votes given for a disqualified candidate by a voter knowing that the candidate was disqualified or the facts causing the disqualification, or after sufficient public notice of the disqualification, or when the disqualification or the facts causing it were notorious.
(2) The vote of a registered elector shall not, except in the case specified in paragraph (1)(e), be struck off at a scrutiny by reason only of the voter not having been or not being qualified to have his name entered on the register or list of electors.
(3) (Deleted by Act A1177).
Rejection of ballot paper by returning officer or presiding officer to be final
On an election petition the decision of a returning officer or presiding officer, whether or not a ballot paper shall be rejected, under any written law relating to the election, shall not be questioned.
Procedure and practice on election petitions
(1) The procedure and practice on election petitions shall be regulated by the Election Petition Rules 1954 as provided for in the Second Schedule.
(2) When any matter is not expressly provided for in the Election Petition Rules 1954, the Rules of the High Court 1980 [P.U.(A)50/1980] shall apply.
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
