High Malaysian election petition costs seen as punishment for appellants, say lawyers

The Malaysian courts have been breaking all sorts of records by awarding costs as high RM150,000 when dismissing election petitions this year, up from the normal range of about RM20,000.

The Bar Council, lawyers and former judicial officers said the high costs as well as dismissal of the petitions on technical grounds have given the impression that the judges are punishing candidates and voters and also discouraging litigants from taking the matter further by instilling fear of huge monetary losses.

They added the election petitions cannot be equated to civil and commercial cases where costs are awarded on preliminary objections, noting it was unprecedented to award exorbitant amounts.

Senior lawyer Karpal Singh, who has handled election petitions for years, said the costs awarded previously were less than RM20,000, adding the costs was not meant to enrich any party.

"Ideally, it should be minimum costs, or each party should be ordered to bear their own costs," Karpal told The Malaysian Insider in Kuala Lumpur this week.

But this was not the case recently with the latest decision on Thursday when an election court awarded  RM150,000 after allowing a preliminary objection for the Kuala Berang state seat in Terengganu.

Similarly, the judge presiding over the Pasir Panjang state seat in Perak, ordered the petitioner to pay RM120,000 in costs to three respondents, including the Election Commission (EC).

For the election petition filed for the Balik Pulau federal seat in Penang, another court ordered payment of RM120,000.

Bar Council chairman Christopher Leong (pic) said election petitions were of public interest and should not be equated to civil and commercial cases.

"Since the petitions are of public nature, the award of costs should not be exorbitant.

"It is also important to note that almost all petitions were dismissed without going through the merits of the cases," he said.

Leong said the high awards gave the impression that the courts were punishing the litigants.

He said the Bar was concerned that petitions were dismissed merely on technical grounds which were long outdated and it was time a comprehensive re-examination was carried out.

A senior lawyer who spoke on the condition of anonymity said the award of costs would only be high if there was trial.

"A very high cost can only be considered if a trial takes a few days and there are many witnesses," he said.

Lawyer Malik Imtiaz`Sarwar said the current high costs were an exception from the elections petitions he handled previously.

"Even in interlocutory matters in commercial cases and civil cases, it is usual for the high court to order a few thousand ringgit only," he said.

Bersih co-chairperson Datuk Ambiga Sreenevesan said the judiciary was sending a negative message to candidates and the public by awarding higher costs.

She said dissatisfied parties would be fearful to obtain justice due to the cost factor.

"It discourages one to exercise the fundamental right to appeal," she told The Malaysian Insider in Kuala Lumpur.

The former Bar Council chief also said costs were awarded to a winning party to partially cover their expenses and the current trend did not make sense.

She pointed out that the unprecedented awards of costs was a way to deny access to justice.

Ambiga said candidates were elected to serve the people and the courts should not impose high costs as this was seen as a form of punishment.

"This discourages one from going to court and even proceed to appeal," she added.

She also questioned why the EC was asking for costs as it was the constitutional duty for them to conduct a free and fair election.