BN Admits Complicity In Illegal Practices Constituting Election Offences

Chartered flights paid for by 'friends of BN', says Ku Nan

Malaysiakini  

 

May 2, 2013

Comments by Sarawak Headhunter in red as usual.

 

BN secretary-general Tengku Adnan Tengku Mansor has denied PKR de facto leader Anwar Ibrahim's claims that "dubious" voters from East Malaysia will be flown in chartered flights to the peninsula to vote on Sunday.

Bernama quoted him as saying that the flights were in fact organised and paid for by "friends of BN" to send "registered" voters back to their hometowns to vote.

Whether or not these are "dubious" voters, paid for by "friends of BN", Tengku Adnan's admission of knowledge of these chartered flights shows BN's complicity in various breaches of section 20 of the Election Offences Act.

"There is no substance whatsoever to opposition allegations that passengers were anything other than registered Malaysian voters," he reportedly said.

Let us hear him and UMNo's Legal Advisers try to establish that there is no substance to Sarawak Headhunter's allegations that these acts are illegal practices constituting election offences under the Election Offences Act, and that BN is complicit in these offences.  

Anwar said his party has obtained photographic and documented evidence that 16 chartered flights have been flying to the peninsula everyday from various locations in East Malaysia.

He also claimed that the Prime Minister's Office (PMO) was involved in purported operations to fly in the voters.

According to the national news agency, the PMO officials however denied it. In a brief statement, the spokesperson said: "The Prime Minister's Office denies any involvement in these flights."

Meanwhile, Tengku Adnan also reportedly defended the move, saying that it is normal for political parties and NGOs to encourage voters to return to their polling centres.

He claimed that the opposition had chartered buses to ferry voters back from Singapore, and that pro-electoral reform group Bersih had paid to fly Malaysians back from Shanghai and Hong Kong.

"The opposition is casting doubts about the fairness of the electoral system in a cynical attempt to undermine Malaysia’s democracy.

"It is a calculated campaign to discredit the electoral system ahead of the election. The opposition are preparing an excuse for their likely loss," he was quoted as saying.

At a press conference in Petaling Jaya today, Anwar (right) also said that PKR has obtained a copy of email communications within Malaysian Airlines (MAS) that made a direct reference to the PMO in relation to the chartered flights.

MAS has however denied that it is ferrying phantom voters ahead of the polling day.

"MAS wishes to clarify that all chartered flights in the national carrier’s system are commercial chartered flights," The Star Online quoted it as saying today.

Well, this is what section 20 of the Election Offences Act says (relevant portions highlighted):

 

Certain expenditure to be illegal practice

20. (1) No payment or contract for payment shall, for the purpose of promoting or procuring the election of a candidate at any election, be made—

(a) on account of the conveyance of electors or voters to or from the poll, whether for the hiring of vehicles, vessels or animals of transport of any kind whatsoever, or for railway fares, or otherwise; or

So, "friends of BN" have definitely commited an offence here.

 

(b) to or with an elector or voter on account of the use of any house, land, building, or premises for the exhibition of any address, bill, or notice, or on account of the exhibition of any address, bill or notice.

(2) Subject to such exception as may be allowed in pursuance of this Act, if any payment or contract for payment is knowingly made in contravention of this section either before, during, or after an election, the person making such payment or contract shall be guilty of an illegal practice, and any person receiving such payment or being a party to any such contract, knowing the same to be in contravention of this section, shall also be guilty of an illegal practice. 

Under this subsection, not only the persons making such payment or contract ("friends of BN") are guilty but the airlines, being the persons receiving such payment or being a party to any such contract are also guilty of an illegal practice. How many counts of illegal practice will there be, if each passenger is taken into account?

It may also be argued that the passengers themselves are parties to the contract, even though they may not have paid for the fare. They would this be guilty too.

 

If somehow the airlines are not caught under subsection (2), they will definitely be caught under subsection (3) above, which is very clear.

(4) A person shall not hire, borrow, or use for the purpose of conveyance of electors or voters to and from the poll any vehicle, vessel or animal of transport of any kind whatsoever which he knows the owner thereof is prohibited by subsection (3) to let, lend, or employ for that purpose, and if he does so he shall be guilty of an illegal practice.

Even if the "friends of BN" make the argument that no payment was made, they cannot escape from subsection (4), which makes it clear that they cannot hire, borrow or use airplanes ("vessels of transport") which the airline owner is prohibited by subsection (30 from letting, lending or employing for the purpose of conveyance of electors or voters.

 

(5) Nothing in subsection (3) or (4) shall prevent a vehicle, vessel or animal of transport of any kind being let to, or hired, employed, or used by an elector or voter or several electors or voters at their joint cost for the purpose of being conveyed to or from the poll.

This is an exception clause where the airplanes may be let to, or hired, employed, or used by electors or voters at their joint cost. Let's see them scramble to arrange this after the fact and condemn themselves in further complicity.

(6) Notwithstanding anything in the preceding provisions of this section—

(a) where it is the ordinary business of an elector or voter as an advertising agent to exhibit for payment, bills and advertisements, a payment to or contract with such elector or voter, if made in the ordinary course of business, shall not be deemed to be an illegal practice within the meaning of this section;

(b) where electors or voters are unable at an election to reach their polling stations from their place or residence without crossing the sea or a branch or arm thereof or a river, means may be provided for conveying such electors or voters to their polling stations, or to enable them to cross the river in order to reach their polling stations, and the amount of payment for such means of conveyance may be in addition to the maximum amount of expenses allowed by this Act:

This is another exception, with a catch:

 

Provided always that such means of conveyance shall be made available equally to all such electors or voters who wish to avail themselves thereof.

If BN or the "friends of BN" have not made available equally such means of conveyance (by air & also by bus probably in this case) to all electors or voters, they are still guilty of an offence in each case.

It would be most interesting to see how BN and the "friends of BN" and also the Elections Commission wriggle out of this predicament.

Portions of the opinion given above were made by a lawyer friend and conveyed through Sarawak Headhunter.

Al Tugauw
Sarawak Headhunter