Latest expose' on EC link to indelible ink supplier PROVES Pakatan's lawsuit - Nurul

VIDEO INSERTED  KUALA LUMPUR - PKR leaders Nurul Izzah and Sivarasa Rasiah rubbished the reply from the Election Commission deputy chairman Wan Ahmad Wan Omar that the civil lawsuit filed by the Malaysian Opposition against all 7 panel members of the commission was "unconstitutional".

Instead, Nurul said the string of startling expose's that have begun leaking into the public domain only proves the Pakatan's case.

"For him hide behind the cloak of the Constitution is typical especially for one who is among the big 7 (in the EC panel) who did not protect the sanctity and credibility of the EC as an independent institution to provide free and fair elections in this country," Nurul Izzah, the MP for Lembah Pantai, told Malaysia Chronicle at the Parliament lobby on Wednesday.

"We are looking at (legal) precedents that exist in other countries and India is a fine example of how the EC can be brought to court . Today we also heard that the person Mohamed Salleh is indeed the supplier (of the indelible ink used in the May 5 general election) and just by virtue of the refusal of the Speaker Shahidan Kassim to deny or say otherwise brings home exactly why we must pursue the case, why we must pursue convictions because we cannot allow them to get away with what they have done.

"If we have a supplier given (the deal to supply indelible ink) by direct tender, we must ascertain what was paid using taxpayers' money, was it based according to specifications, was it doomed to fail due to the conspiracy that exist between the EC, the supplier and the people colluding with them. I think the recent expose's bit by bit have really proven our case and I do hope the courts will be empowered to do the right thing."

Damages, costs and cost of new GE

The Pakatan Rakyat coalition, led by Opposition Leader Anwar Ibrahim, had earlier this week sued the EC panel, making them personally liable for allegedly defrauding Malaysian citizens over the indelible ink used in the May 5 general election. The EC had promised the ink would stay on for between 4 to 7 days but many voters found that it could be washed off within hours.

If found liable, the EC panel would be discharged in disgrace and a new general election called. All 7 EC members would also have to bear damages if awarded by the court, plus legal costs as well the costs of holding a new general election.

The 7 members are chairman Abdul Aziz Mohd Yusof, deputy chairman Wan Ahmad Wan Omar, Mohamad Ramji Ali, P Manogran, Christopher Wan Soo Kee, Md Yusop Mansor and Abdul Aziz Khalidin.

"I would advise him (Wan Ahmad) to review his views with with his legal advisers," said Sivarasa, the MP for Subang, who was also at the presser.

Dubious courts

Wan Ahmad, the EC No.2, had reacted by calling the Pakatan suit "unconstitutional". "Their action is well outside the legal line. Only through an election petition can the court act but I leave it to the judiciary," Wan Ahmad told the press.

According to him, Article 118 provides that no election to the Dewan Rakyat and state assemblies could be questioned unless by way of a petition to an election court. Nonetheless, Wan Ahmad said the plaintiffs had the liberty to do what they liked as they had obtained legal advice.

"They should not claim the court was unfair when it makes a decision," he added, prompting criticism that he was already presuming the courts would act in his favour.

Malaysian courts have become somewhat notorious after several high-profile cases with doubt cast upon the judiciary's integrity and independence from politicians in power. One of the most damaging recent cases involved the legitimacy of the Perak state government after Prime Minister Najib Razak's Umno party conducted a coup d'etat on the Pakatan in 2009.

"Pakatan Rakyat is aware that the independence of the Malaysian courts is a matter of controversy particularly when high-profile political cases are involved. However, Pakatan calls upon members of the judiciary to play their role as an independent institution and ensure that rights provided for under the Federal Constitution are upheld," said Siva.

It is the EC panel that is unconstitutional

A lawyer by profession, Siva claimed that it was the EC panel that breached the constitutional rights of voters by "deliberate acts" of misfeasance in public office.

"The deputy chairman is failing to appreciate that the suit filed against the 7 members of the EC is alleging that by willfully and knowingly causing the failure of the indelible ink, they acted fraudulently, breached the constitutional rights of the plaintiffs and also committed the tort of misfeasance in public office. If the Court after hearing the evidence agrees with the plaintiffs, the main reliefs sought are declarations to such effect and also payment of general damages. There is nothing unconstitutional about such a suit for such reliefs. Actions against public bodies based on such causes of action are well established all over the world in similar common law jurisdictions," he said.

"In the event that the court finds that the EC officials did act fraudulently, in breach of constitutional rights and committed misfeasance in public office, then Pakatan Rakyat is also seeking consequential reliefs that the election in all 222 parliamentary seats is declared void and that the same errant officials are removed from their positions so that a fresh election can be conducted by new and credible officials. Again, I see nothing unconstitutional in such consequential reliefs."

Precedents

According to Siva, there were "decided cases" in apex courts throughout the Commonwealth which have intervened in cases of election misconduct by election officials other than purely through election petitions.

He cited the case of Union Bank of India v Association for Democratic Reform (2005), where the Supreme Court of India in a constitutional challenge issued directions to the Election Commission.

"The case was not filed as an election petition. India has an identical provision to Article 118 of our Federal Constitution, which provides that a challenge to an election can only be done via an election petition.

Siva also reminded the EC No. 2 the legal doctrine of 'where there is a right, there is a remedy'.

"This means that any constitutional right if violated must have a remedy or redress, more so when the right involves the right to a free and fair election. Accordingly, Pakatan's civil suit seeks constitutional remedies for breaches of rights guaranteed under the Constitution. One need not and in fact does not pursue them by way of an election petition in an election court," said Siva.

Malaysia Chronicle