QUESTIONABLE GE-13 ELECTORAL ROLL

DR HIEW King Cheu, the newly elected ADUN N16 Luyang, questions SPR or Election Commission (EC) on the electoral roll for the first quarter ending 31st March 2013 was gazette on the 11th April 2013, and that was only 11 days after the closing date of the first quarter 2013, and was immediately used for the 13th General Election (GE13) on 5th May, 2013.

The dissolution of Parliament was on 3rd April 2013. The election was held on 5th May 2013, and the early voting on 30th April 2013. The EC Chairman Tan Sri Abdul Aziz Mohd Yusof in his announcement of the 13th General Election on 10th April 2013 said that the electoral roll to be used shall be the gazette on 11th April 2013 (the next day) comprising 13,268,002 Malaysian to vote of which 12,992,661 ordinary voters, 275,341 early voters and 2,954 absent voters from overseas.

SPR or EC Deputy Chairman Datuk Wan Ahmad Wan Omar, in his press statement (as published in the Daily Express Page 3 on Thursday 13th June 2013), stated that the EC updates the electoral roll on a daily basis and gazette it “quarterly” after a stringent due process with the list being exhibited for 14 days and the names verified by the National Registration Department (NRD).

It appeared that the electoral roll, as announced on 10th April 2013 by EC Chairman Tan Sri Abdul Aziz, used for the 13th General Election (GE13) was an immediate gazette following the announcement. How did the electoral roll satisfy the two time requirements as stated by the EC Deputy Chairman Datuk Wan Ahmad - (1) exhibit for 14 days, and (2) verification by NRD? There are obviously other administrative procedures such as filing of objections, questions and answers, petitions, et cetera before an electoral roll will proceed to be a government gazette document.

It has been observed that the two previous gazette electoral rolls (attached) for the second quarter 30th June 2012 and last quarter 31st December 2012 were gazette on 16th August 2012 and 22nd February 2013 respectively. It took more than one and a half months from the date of the ending quarters. Was the electoral roll used for GE13 gazette according to the proper administrative procedures and time frame required? These raise the issues of invalidity for breaches of the rules by electoral administrators and in this case the EC Chairman and Deputy Chairman.

It appeared that the gazette of electoral roll for the first quarter (31st March 2013) had not followed the administrative procedures before it was finalized as a requirement under Section 9A of the Election Act 1958.

In the first place, there was definitely insufficient time for public exhibit of 14 days and following which the filing of objections (questions and answers) and petitions to the EC on any irregularities on the electoral roll, verification of names by NRD, etc. It is only after clearing all issues pertaining to the electoral roll that the EC will proceed to grant the roll for gazette to become an officially approved document under Section 9A of the Election Act 1958.

On 15th June 2002, the Legislature passed an amendment to the Election Act 1958 with the inclusion of Section 9A that deems an electoral roll that has been certified with the notice of the certification published in the gazette to be final and binding and shall not be questioned or appealed against in, or reviewed, quashed or set aside by any court.

Section 9A states that 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 ineffective until and unless it followed the administrative procedures for it to be gazette and become an official document to be used in the election. The electoral roll is in breach of the administrative procedures if it does not follow the prescribed steps to ensure that it is a properly gazette document.

The electoral roll is not law. Its survival and effectiveness depends on the gazette. If the electoral roll is not gazette 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 if and when it has passed the administrative procedures and becomes a gazette document, but not just the gazette by itself.

So logically the people should not disturb the roll that has gone through the procedures to make a “gazette electoral roll” such as the second quarter 2012 and last quarter 2012 electoral rolls. We are instead after the process by which the document was gazette, that is, for the first quarter 2013 electoral roll that was officially used for the GE13.

A gazette is only lawful if the documents to be published are made in accordance with the law. Since the electoral roll used for the GE13 did not follow the procedures prior to it becoming a gazette document, it is therefore unlawful and “null and void”.

Dr Hiew said by looking at the facts that the 11th April 2013 gazette electoral roll which was used in the GE13 apparently did not follow the statutory requirements and procedures of establishing it as a gazette document.

The question now stands, whether the 11th April 2013 electoral roll, is gazette according to the prescribed procedures remains to be answered by the SPR or EC. This is alleged “administrative breaches” and procedural non-compliance. Therefore, this has raised big doubts on its validity, and this may cause the result of the GE13 to be “null and void”. We are expecting the SPR to give a full explanation on this matter.