Was Harapan’s ‘duit minyak’ an election offence?

Since nomination day for the Cameron Highlands by-election, an image showing a number of Orang Asli receiving money from Pakatan Harapan has gone viral, with many claiming this is evidence of bribery.

These claims are supported by the fact that the BN candidate in the 14th general elections, MIC vice-president C Sivarraajh, was disqualified, in part, for handing out "duit minyak" (money for petrol). 

DAP adviser Lim Kit Siang has countered that the money was simply money to reimburse party volunteers, and would be included in their election expenses.

The first issue to untangle is to consider this case in contrast to the disqualification of Sivarraajh for corrupt practices. In order for an election to be declared void under Section 32(c) of the Election Offences Act 1954, there must be proof that it was done with the direct knowledge of the candidate.

This was proven in the case of Sivarraajh. For an election petition on this act, it would have to be shown that Harapan candidate M Manogaran had direct knowledge of the act which he has denied.

The Election Court also found in the case of Sivarraajh that the corrupt practices under Part IV of the Election Offences Act were done in order to induce voters to vote for that candidate. Election law is very strict about this interpretation.

For a successful election petition over the issue of bribery or treating or for a criminal case, there is a high burden proof to show the intention of the bribe. 

If Lim’s claim that these were party volunteers receiving reimbursements is true, then this cannot be an offence under Section 10 of the Election Offences Act.

MACC and Bersih have highlighted the use of travel allowances as bribes for voters. In these instances, voters receive money for attending campaign events or for voting.

The distinction must be made between if the people receiving the money were doing volunteer work for the campaign, or if they were the target of campaigning.

I would argue that the mass processions on nomination day, where political parties mobilise people to 'show off' their levels of support are a form of campaign theatre, and would not constitute an act of bribery even under international best practices.

Even if the paying of party volunteers is not a corrupt practice, it could still be illegal. 

Section 15A of the act requires third parties incurring expenses on behalf of the candidate to be authorised by the election agent and include these expenses as part of the spending limit of RM200,000.

These expense statements must be submitted to the Election Commission within a month of the results being gazetted, and include receipts of all expenditure except for costs under RM10. The public can view these statements for a period of six months.

Strongest argument

It would be interesting to see if there are receipts for these payments. If there is no such receipt or authorisation, it would be an illegal act by the third party that incurred the expense without the authorisation of the candidate.

There are legitimate concerns that political parties could hand out cash to voters, with receipts, claim it as payment for party work and it be legitimate so long as it is within the spending cap.

Section 21 of the act, however, puts restrictions on payments for campaigning. According to this section, no person may be employed or engaged to campaign unless they are the election agent, a polling agent or a clerk or messenger (of a limited number).

Party volunteers, therefore, must not receive payment, unless they are counted in the limited number of clerks and messengers for that constituency. This is the strongest argument against the actions of Harapan on nomination day, not one of bribery.

I believe, though, that this section of law must be interpreted to reflect the realities of campaigning and not to restrict the activities of candidates to conduct legitimate campaign activities. 

Campaigns must be allowed to provide travel reimbursements, food and drink to their legitimate volunteers. If not, campaigns will have little to no volunteers, particularly in poorer areas of the country where people are unable to afford the costs incurred.

Restrictions would limit campaign involvement to only those who can afford to cover their own expenses, allowing only the rich to participate. Section 21 should only, therefore, restrict paid employment, rather than volunteer expenses.

This incident demonstrates there is an urgent need to provide clarity in these areas of election law and ensure these interpretations are in line with international best practices and uphold democratic principles. 

The EC should use its powers under Section 16(2)(o) of the Elections Act to create clear regulations on illegal practices during elections.

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ZOE RANDHAWA is the former advocacy and education officer for Bersih. - Mkini