Second Schedule SECOND SCHEDULESupplementary
[Subsection 42(1)] ELECTION OFFENCES ACT 1954 ELECTION PETITION RULES 1954 Citation 1. These rules may be cited as the Election Petition Rules 1954. Interpretation 2. In these Rules, unless the context otherwise requires— “advocate” includes, in the State of Terengganu, a pleader; “Judge” means the Election Judge as defined in section 2 of the Election Offences Act 1954; “Registrar” means the Registrar of the High Court and includes the Deputy Registrar and the Senior Assistant Registrar of the High Court. Manner of presentation of petition 3. (1) The presentation of an election petition shall be made by delivering it at the office of the Registrar, and the Registrar or the officer of his department to whom the petition is delivered shall, if required, give a receipt in the following form: Received on the ………...............…………………………… 20 ……… at the Registry of the High Court, a petition touching the election of A.B., ………………………… for …………………… purporting to be signed by …………………………………… (insert the names of petitioners). C.D., Registrar, or other officer to whom the petition is delivered (2) There shall also be left with the petition two copies thereof. Contents and form of election petition 4. (1) An election petition shall contain the following statements: (a) it shall state the right of the petitioner to petition within section 34 of the Act; and (b) it shall state the holding and result of the election, and shall briefly state the facts and grounds relied on to sustain the prayer. (2) The petition shall be divided into paragraphs, each of which, as nearly as may be, shall be confined to a distinct portion of the subject, and every paragraph shall be numbered consecutively, and no costs shall be allowed for drawing or copying any petition not substantially in compliance with this rule, unless otherwise ordered by the Court or a Judge. (3) The petition shall conclude with a prayer as, for instance, that some specified person should be declared duly returned or elected, or that the election should be declared void, and shall be signed by all the petitioners. (4) The following form, or one to the like effect, shall be sufficient: IN THE HIGH COURT OF ....................... Election Offences Act 1954 Election for …………………… (state the constituency or electoral ward) held on the ……………………………………….................... 20 …………… The petition of A., of .................. (or of A., of ........................... and B., of ...................... , as the case may be) whose names are subscribed. (1) Your petitioner A., is a person who voted (or had a right to vote, as the case may be) at the above election (or claims to have had a right to be returned at the above election or was a candidate at the above election), and your petitioner B. (here state in like manner the right of each petitioner); (2) And your petitioners state that the election was held on the ..................... ..................................... 20 ................, when A.B., C.D., and E.F. were candidates, and the Returning Officer has returned A.B. as being duly elected. (3) And your petitioners say that (here state the concise facts and grounds on which the petitioners rely). Wherefor your petitioners pray that it might be determined that the said A.B. was not duly elected or returned, and that the election was void (or that the said E.F. was duly elected and ought to have been returned). (Signed) A B Evidence not to be stated in petition but particulars may be ordered 5. Evidence need not be stated in the petition, but the Judge may, upon application in writing by a respondent, order such particulars as may be necessary to prevent surprise and unnecessary expense, and to ensure a fair and effectual trial upon such terms as to costs and otherwise as may be ordered. Where more than one petition is presented in relation to same election 6. Where more petitions than one are presented relating to the same election or return, all such petitions shall be dealt with as one petition, so far as the inquiry into the same is concerned. List of votes objected to where seat claimed by unsuccessful candidates 7. When a petitioner claims the seat for an unsuccessful candidate, alleging that he had a majority of lawful votes, the party complaining of or defending the election or return shall, six days before the day appointed for trial, deliver to the Registrar, and also at the address, if any, given by the petitioners and respondent, as the case may be, a list of the votes intended to be objected to, and of the heads of objection to each such vote, and the Registrar shall allow inspection and office copies of such lists to all parties concerned; and no evidence shall be given against the validity of any vote, nor upon any head of objection not specified in the list, except by leave of the Judge, upon such terms as to amendment of the list, postponement of the inquiry, and payment of costs, as may be ordered. List of objections in recriminatory case 8. The respondent in a petition complaining of an undue return and claiming the seat for some person may lead evidence to prove that the election of such person was undue, and in such case such respondent shall, six days before the day appointed for trial, deliver to the Registrar, and also at the address, if any, given by the petitioner, a list of the objections to the election upon which he intends to rely, and the Registrar shall allow inspection of office copies of such lists to all parties concerned; and no evidence shall be given by a respondent of any objection to the election not specified in the list, except by leave of the Judge, upon such terms as to amendments of the list, postponement of the inquiry, and payments of costs, as may be ordered. Appointment of advocate by petitioner 9. With the petition the petitioner or petitioners shall leave at the office of the Registrar a writing, signed by him or them, giving the name of an advocate whom he or they authorize to act as his or their advocate or stating that he or they act for himself or themselves, as the case may be, and in either case giving an address within Malaysia at which notices may be left. Every such writing shall be stamped with the duty payable thereon under the law for the time being in force. 10. ( Deleted by Act A1177). 11. ( Deleted by Act A1177). Security by petitioner for costs, etc., of election petition 12. (1) At the time of the presentation of the petition, security for the payment of all costs, charges, and expenses that may become payable by the petitioner shall be given on behalf of the petitioner. (2) The security required by this rule shall be given by a deposit of money of not less than ten thousand ringgit, and the Judge, in the course of the trial, may require the petitioner to deposit an additional sum of money by way of security as the Judge may think fit. (3) If security as provided in this rule is not given by the petitioner, no petition shall be registered at such Court. Security by deposit of money 13. (1) The deposit of money by way of security for payment of costs, charges, and expenses payable by the petitioner shall be made by payment to the Registrar which shall be vested in and drawn upon from time to time by the Chief Judge for the purposes for which security is required by these Rules. A receipt shall be given by the Registrar for the same. (2) The Registrar shall keep a book open to the inspection of all parties concerned, in which shall be entered from time to time the amount of deposit, the number and date of the receipt therefor, and the petition to which it is applicable. Return of money so deposited 14. (1) Money so deposited shall, if and when the same is no longer needed for securing payment of such costs, charges and expenses, be returned or otherwise disposed of as justice may require by order of the Judge. (2) Such order may be made after such notice of intention to apply and proof that all just claims have been satisfied or otherwise sufficiently provided for as the Judge may require. (3) Such order may direct payment either to the party in whose name the same is deposited or to any person entitled to receive the same. Notice of petition and copy of petition to be served on respondent 15. (1) Notice of the presentation of a petition, accompanied by a copy of the petition, shall, within fifteen days of the presentation of the petition, be served by the petitioner— (a) on the respondent personally which shall be effected by delivering the notice and a copy of the petition to the respondent; (b) by sending the notice and a copy of the petition by pre-paid registered post addressed to the respondent at his usual or last known place of residence or business; or (c) by posting a notice on the notice board of the High Court in the State in which that constituency or electoral ward is situated and by publishing a notice in a national language newspaper and in any other newspaper circulating within the constituency or electoral ward in which the election was held stating that such petition has been presented and that a copy of the notice of presentation of the petition and a copy of the petition may be obtained by the respondent free of charge on application at the office of the Registrar. (2) If the respondent to whom there has been addressed a pre-paid registered post referred to in subrule (1)— (a) is informed that there is such a letter awaiting him at a post office but he refuses or neglects to take delivery of that letter; or (b) refuses to accept delivery of that letter when tendered to him, the notice and a copy of the petition shall be deemed to have been served on him on the date on which he is informed that there is such a letter awaiting him or when the letter is tendered to him, as the case may be. (3) For the purpose of subrule (2), a statement by the officer in charge of a post office stating that to the best of his knowledge and belief— (a) there has been delivered to the address appearing on the pre-paid registered letter a post office notification informing the addressee that there is such a letter awaiting him; or (b) there has been tendered for delivery to the addressee such a letter, shall, until the contrary is proved, be evidence that the addressee has been so informed or that the registered letter has been tendered to him, as the case may be. (4) An affidavit of service of the documents referred to in subrule (1) stating by whom the documents were served, the day of the week and date on which the documents were served, where they were served and how they were served must be filed in the Court in which the petition was presented. When petition to be deemed at issue 16. On the expiration of the time limited for making petitions, the petition shall be deemed to be at issue. List of petitions 17. The Registrar shall make out the election petition list. In it he shall insert the names of the advocates of the petitioners appointed under rule 9 and of the respondents, and the addresses to which notices may be sent, if any. The list may be inspected at the office of the Registrar at any time during office hours, and shall be posted for that purpose upon a notice board appropriated to proceedings under these Rules, and headed “Election Offences Act 1954”. Time and place of trial of election petition 18. The time and place of the trial of each election petition shall be fixed by the Judge and not less than fourteen days’ written notice thereof shall be given to the petitioner and the respondent. Postponement of trial 19. The Judge may, from time to time, by order made on the application of a party to the petition, postpone the beginning of the trial to such day as he may name. Adjournment and continuation of trial 20. No formal adjournment of the Court for the trial of an election petition shall be necessary, but the trial is to be deemed adjourned, and may be continued from day to day until the inquiry is concluded; and in the event of the Judge who begins the trial being disabled by illness or otherwise, it shall be continued and concluded by another Judge. Withdrawal of election petition 21. (1) An election petition shall not be withdrawn without the leave of the Judge. Such leave may be given upon such terms as to the payment of costs and otherwise as the Judge may think fit. (2) Before leave for the withdrawal of an election petition is granted, there shall be produced affidavits, as required by this rule, by all the parties to the petition and their advocates, and by the election agents of all the said parties who were candidates at the election: Provided that a Judge of the High Court may, on cause shown, dispense with the affidavit of any particular person if it seems to such Judge on special grounds to be just so to do. (3) Each affidavit shall state that, to the best of the deponent’s knowledge and belief, no agreement or terms of any kind whatsoever has or have been made, and no undertaking has been entered into in relation to the withdrawal of the petition; but if any lawful agreement has been made with respect to the withdrawal of the petition, the affidavit shall set forth that agreement, and shall make the foregoing statement subject to what appears from the affidavit. (4) The affidavit of the applicant and his advocate shall further state the ground on which the petition is sought to be withdrawn. Form of application to withdraw petition 22. (1) An application for leave to withdraw a petition shall be in writing signed by the petitioner or petitioners or his or their advocate or advocates. It shall state the ground on which the application is supported. (2) The following form shall be sufficient: Election Offences Act 1954 Constituency/Electoral Ward of ………………………………………… petition of ……………………..........…… (state name of petitioner) presented ……………………………………………………............... 20 ……….. The petitioner applies to withdraw his petition upon the following ground (here state the ground), and prays that a day may be appointed for hearing his application. Dated this …………………………………………................. 20 ……… (Signed) ……………………… (3) The application for leave to withdraw shall be left at the office of the Registrar. Copy of application to be given to respondent 23. A copy of such application shall be given by the petitioner to the respondent, and a notice in the following terms signed by the petitioner shall be published forthwith in the Gazette by the petitioner at his own expense: Election Offences Act 1954 In the election petition for ……………… in which ……………… is petitioner and ……………………… respondent. Notice is hereby given the above petitioner did on the ……………………........ 20 ……… lodge at the office of the Registrar of the High Court an application for leave to withdraw the petition, of which application the following is a copy: (Set it out.) And take notice that under the Election Petition Rules 1954, any person who might have been a petitioner in respect of the said election may, within five days after the date of publication of this notice, give notice in writing to the Registrar of the High Court of his intention on the hearing of the application to be substituted as a petitioner. (Signed) ……………………… Application to be substituted as petitioner on withdrawal 24. Any person who might have been a petitioner in respect of the election to which the petition relates may, within five days after such notice is published by the petitioner, give notice in writing signed by him or on his behalf, to the Registrar, of his intention to apply at the hearing to be substituted for the petitioner, but the want of such notice shall not defeat such application, if in fact made at the hearing. Time and place of hearing of application 25. The time and place of hearing the application shall be fixed by the Judge but shall not be less than a week after the application for leave to withdraw has been left at the office of the Registrar as hereinbefore provided, and notice of the time and place appointed for the hearing shall be given to such person, if any, as shall have given notice to the Registrar of an intention to apply to be substituted as petitioners, and otherwise in such manner and such time as the Judge directs. Substitution of another petitioner 26. (1) On the hearing of the application for withdrawal, any person who might have been a petitioner in respect of the election to which the petition relates, may apply to the Judge to be substituted as a petitioner for the petitioner so desirous of withdrawing the petition. (2) The Judge may, if he thinks fit, substitute as a petitioner any such applicant as aforesaid; and may further, if the proposed withdrawal is, in the opinion of the Judge, induced by any corrupt bargain or consideration, by order direct that the security given on behalf of the original petitioner shall remain as security for any costs that may be incurred by the substituted petitioner, and that to the extent of the sum named in such security the original petitioner shall be liable to pay the costs of the substituted petitioner. (3) If no such order is made with respect to the security given on behalf of the original petitioner, security to the same amount as would be required in the case of a new petition, and subject to the like conditions, shall be given on behalf of the substituted petitioner before he proceeds with his petition, and within three days after the order of substitution. (4) Subject as aforesaid a substituted petitioner shall stand in the same position, as nearly as may be, and be subject to the same liabilities, as the original petitioner. (5) If a petition is withdrawn, the petitioner shall be liable to pay the costs of the respondent. (6) Where there are more petitioners than one, no application to withdraw a petition shall be made except with the consent of all the petitioners. Abatement of petition by death 27. (1) Subject to rule 28, an election petition shall be abated by the death of a sole petitioner or of the survivor of several petitioners. (2) The abatement of a petition shall not affect the liability of the petitioner or of any other person to the payment of costs previously incurred. Application to be substituted as petitioner on abatement 28. (1) Notice of abatement of a petition, by death of the petitioner or surviving petitioner, shall be given by the party or person interested in the same manner as notice of an application to withdraw a petition. (2) Any person who might have been a petitioner in respect of an election to which the petition relates may apply to the Judge to be substituted as a petitioner and such application shall be made within one calendar month from the day of filing of the notice of abatement or such other time as, upon consideration of any special circumstances, the Judge may allow. (3) The Judge may, if he thinks fit, substitute as a petitioner any such applicant who is desirous of being substituted and on whose behalf security to the same amount is given as is required in the case of a new petition. (4) Any person substituted as a petitioner under this rule shall stand in the same position, as nearly as may be, and shall be subject to the same liabilities, as the original petitioner. On death, resignation, or notice not to oppose of respondent the petition to continue 29. (1) If before the trial of an election petition a respondent dies or resigns, or gives notice in writing to the Registrar that he does not intend to oppose the petition, the petition shall not be abated but shall continue whether or not any person applies to be admitted as respondent as hereinafter provided. (2) Notice of the fact that a respondent has died, or resigned, or that he has given notice in writing that he does not intend to oppose the petition, shall be posted on the notice board of the Court appropriated to proceedings under these Rules referred to in rule 17 by the Registrar. (3) Any person who might have been a petitioner in respect of the election to which the petition relates may apply to the Judge to be admitted as a respondent to oppose the petition within ten days after such notice has been posted on the notice board of the Court appropriated to proceedings under these Rules referred to in rule 17 or such further time as the Judge may allow. (4) The manner and time of the respondent’s giving notice to the Registrar that he does not intend to oppose the petition, shall be by leaving notice thereof in writing at the office of the Registrar, signed by the respondent not less than six days before the day appointed for trial, exclusive of the day of leaving such notice. Respondent not opposing petition not to appear as party 30. A respondent who has given notice of his intention not to oppose a petition shall not be allowed to appear or act as a party against such petition in any proceedings thereon. Countermanding notice of trial where petition abated, etc. 31. After receiving the petitioner’s application for leave to withdraw or notice of the respondent’s intention not to oppose, or of the abatement of the petition by death, or of the happening of any of the events mentioned in rule 29, if such notice is received after notice of trial shall have been given, and before the trial has commenced, the Registrar shall forthwith countermand the notice of trial. The countermand shall be given in the same manner, as near as may be, as the notice of trial. Costs 32. All costs of and incidental to the presentation of a petition and to the proceedings consequent thereon shall be defrayed by the parties to the petition in such manner and in such proportions as the Judge may determine, regard being had to the disallowance of any costs which may, in the opinion of the Judge, have been caused by vexatious conduct, unfounded allegations, or unfounded objections, on the part either of the petitioner or the respondent and regard being had to the discouragement of any needless expense by throwing the burden of defraying the same on the parties by whom it has been caused, whether such parties are or are not on the whole successful. Taxation and recovery of costs 33. (1) Costs shall be taxed by the Registrar upon the order by which the costs are payable in the same manner as costs are taxed in the High Court, but subject to such express direction, either general or specific, as the Judge may give; and costs when taxed may be recovered in the same manner as the costs of an action at law. (2) The Judge may direct that the whole or any part of any moneys deposited by way of security under rules 12 and 13 may be applied in the payment of taxed costs. (3) The office fees payable for inspection, office copies and other proceedings under these Rules shall be such as may be prescribed by the Chief Judge. Notice of appointment of advocate 34. An advocate shall, immediately upon his appointment as such, leave written notice thereof at the office of the Registrar. Service of notices on advocates 35. Service of notices and proceedings upon such advocates shall be sufficient for all purposes under these Rules. LAWS OF MALAYSIA ELECTION OFFENCES ACT 1954