Challenge electoral roll through its gazette

Many people have asked me what else can be done to clean up the electoral roll when the law itself does not allow the roll to be challenged once gazetted, let alone declared null and void.

It may appear so if one looks at the law at a glance.

But my personal view is that the roll can still be challenged albeit from a different angle. I always believe that if there is a will, there is a way.

When there's a disease there's always a cure, no matter how chronic the disease may be.

As a Muslim I believe that only the Quran cannot be changed or amended. Other human made laws are subject to evolution and can be changed, amended or repealed.

If some unscrupulous public servants can conspire to constantly find new ways and means to cheat the rakyat and deprived them of their basic rights directly or otherwise, then it is not wrong for the rakyat to search for ways and means to turn the tables on them but in a lawful and civilised manner.

Take the matter to court. If there is such a thing as ‘creative accounting', there might also be ‘creative pleadings'.

It will be an uphill task though if the people challenge the validity of the electoral roll head-on.

But the chances are better if the challenge is about the validity of the gazette instead.

While taking the route of referring to the EC is unlikely to succeed as it will probably only fall on deaf ears, a judge will probably not simply dismiss an application without giving a fair hearing as they are now very much aware of the grouses of citizens.

I don't think the EC officials dare to be cross-examined in court. That is the reason why the amendment to Section 9A of the Act was made after the Likascase.

The EC never appealed the decision made by judge Muhammed Kamil Awang in that case. The best way out to allow the roll to be challenged, is by amending the law.

First we look at the wording of Section 9A of the Election Act 1958 upon being amended and made effective in 2003 as follows;

‘Certified or re-certified electoral roll shall be deemed to be final'

9A. After an electoral roll has been certified or re-certified, as the case may be, and notice of the certification or re-certification has been published in the gazette as prescribed by regulations made under this Act, the electoral roll shall be deemed to be final, binding and shall not be questioned or appealed against, or reviewed, quashed or set aside by, any court. 

Here we can see two distinct ‘entities'. One is the electoral roll and the other is the gazette.

The electoral roll is not law. Its survival and effectiveness depends on the gazette. If the roll is not gazetted then it is useless or if the gazette is ruled invalid, the roll is dead.

A gazette is also not law.

It is just a public journal of the government. Where our government is concerned, publishing information in a gazette is a legal necessity by which official documents come into force and enter the public domain.

The one that is being ‘protected' by Section 9A, is the electoral roll only, but not the gazette.

So logically the people should not disturb the roll but to go after the gazette instead.

A gazette is only lawful if the documents to be published are made in accordance with the law.

If the documents or records to be gazetted were made or obtained through fraud or misrepresentation then it would be unlawful for the AG's chambers to approve the publications of such documents.

There are supposed to be several check points at the chambers assigned to do this type of verification.

Similarly like newspapers or online news portals. it's their duty to verify the truthfulness or correctness of the information they received before publishing them or face being dragged to the courts like what is happening almost every day now.

The principles of responsible reporting and publication apply to all publishers and printers, especially the government's printers.

So in this case, it's not the EC that is being dragged to court but the government printers that published the false information.

Of course the EC and the AG's chambers and the government of Malaysia will have to be named as defendants as well.

Selangor should be the spearhead

Since the issue of ‘phantom voters' and ‘instant citizenship for votes' are more prevalent in Selangor and certain parts of Kuala Lumpur I think, they should be the ones to spearhead this challenge, particularly Selangor.

Not only Selangor has the best lawyers at their disposal and also the menteri besar has allotted several million ringgit for this type of exercise, most importantly, Selangor has an abundance of evidence to mount the challenge.

Now is the appropriate time for the menteri besar to show the Selangorians, me included ,that the state government is serious in wanting to clean up the electoral roll before the general election.

The recent complaint where a house owner in Petaling Jaya received 28 new year letters of greetings from premier Najib Abdul Razak under the names of unknown persons supposed to be living in the same house with the owner, is godsend evidence to prove that the latest electoral roll gazetted for Selangor, is mired with fraud and misrepresentation.

For the record the latest ‘Notice of completion of revision and inspection of supplementary Electoral roll for Selangor' under Election Act 1958 was published in the gazette on Jan 16, reference no: PU (B) 20/2013.

And that was just about 10 days ago.

So how could the EC and the chambers claim or defend themselves that they have "revised and inspected" the roll when we can still find several more complaints similar to that of the PJ house owner.

Over and above that, similar complaints had already been made public several months ago.

So if the names of dubious voters or suspected "phantom voters" highlighted before the latest publication have not been purged from the roll by the EC, then the gazette can be declared invalid since the documents being gazetted contain fraudulent or false information.

That's how I interpret Section 9A. If attorney general Gani Patail  (right) can rule that private investigator P Balasubramaniam had not committed any criminal offence when making his second statutory declaration since it was not used in court, then my interpretation of Section 9A cannot be wrong as well.

The owners of premises who have discovered that their addresses have been used by unknown persons should not take the matter lightly.

They must be advised of the risks they might face. Say an identity card belonging to a person (whose registered address in that IC is your house) was found at a scene of crime or worse still, at a clandestine drug processing laboratory, then you may land yourself in really big trouble without being at fault.

Using strategic information

I agree that the party that issues the identity cards to create ‘instant citizens' is the national registration department.

Should there be an attempt to influence elections, there is no point to scatter the instant citizens all over the country or just station them in one place or where they like.

That serves no purpose.

I am of the opinion that information regarding which constituencies need the support of these instant voters and the numbers required, is within the EC.

Is it possible that the information is somehow leaking out to certain parties in the NRD?

They in turn may have to find addresses for these people within that certain constituency to enable them to be registered as voters there.

In certain areas there are not many addresses with which to play around.

Is that why we find in some premises there might be few (or even a few hundred) people registered at the same address?

It's not necessary these instant voters physically move to that address where they are registered.

It's all on paper only.

They don't even know anything about where they are supposed to be residing.

They just vote there on election day.

They don't care which address they are registered to, as long as they get their MyKad and made citizens of this country and enjoy all the benefits and perks as citizens.

After all it's not every day that they have to vote.

So you can imagine the amount of funds spent to maintain these instant citizens just to vote for them once in five years.

It's money that belongs to you and me.

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MAT ZAIN IBRAHIM is former chief of Kuala Lumpur Criminal Investigation Department.