In his recent statement a deputy minister cum Umno supreme council member argued that it was not wrong for ministers or ministries to organise programmes or announce allocations during by-elections.
In defending his argument, Ahmad Maslan contended that such matters had been brought to the court prior to this and the court’s decisions revealed that they (the ministers) were there based on their government leadership positions to meet the people and coincidentally there was a by-election.
Therefore, Ahmad (above) reasoned, it is not an electoral offence.
Bersih, on the contrary, took exception to his remarks. As far as Bersih is concerned, using government machinery and resources for campaigning is against internationally recognised good practices when it comes to ensuring a free and fair election.
Bersih also cited Article 4(1) of the Inter-Parliamentary Union Declaration which stipulates that the state must ensure there is a separation between the government and party to ensure free and fair elections.
Bersih equally relied on the court’s judgment which annulled the victory of Kuala Terengganu MP Ahmad Amzad Hashim on June 27 last year after Amzad’s contender succeeded in proving that corruption had taken place intending to influence voters during the 15th general election.
In addition to that, Bersih also relied on Prime Minister Anwar Ibrahim’s own instruction on June 12 for cabinet members to adhere to electoral laws when campaigning for the Sungai Bakap by-election.
Therefore, Bersih argued, the deputy minister’s excuses ran contrary to his boss’ own instructions.
Free and fair election
As a lawyer I did a plethora of election petition cases throughout Malaysia, hence I can say that I am quite familiar with a slew of electoral laws which are enforced in Malaysia.
By virtue of Section 2 of the Election Offences Act 1954, the word election is defined as follows “an election held in accordance with the provisions of any written law relating to the election of persons to be members of the Dewan Rakyat, a Legislative Assembly or a local authority”.
Based on the said definition one may argue that any election which is held not in accordance with the provisions of any written law relating to the election could not be considered to be a true, genuine, free and fair election.
Despite the fact one may not find the phrase “free and fair” election in any provision contained in the Federal Constitution relating to election (see Part VIII) it does not mean the Election Commission is not mandated to hold a free and fair election.
After all, there are also many things which are not spelt out in the Constitution such as the post of deputy prime minister. Constitutional conventions normally plug in such constitutional holes.
It goes without saying a free and fair election is a sine qua non of a real and functioning democracy. Inherent in the doctrine of free and fair election is the principle of fair play and level playing field.
Lest we forget, in the Sungai Bakap by-election, the electoral fight is not between the government and any political party which participates in the contest.
On the contrary, the battle is between political parties only. Hence both parties must be accorded the same rights and opportunities.
Law violation
It would be contrary to the basic tenets of a free and fair election if one of the parties posited unfair advantages against its opponent.
To put it in simpler terms it would be highly unfair for ministers in the present government to unfairly use their status or ministries in conducting their election campaign in such a by-election.
Be that as it may, any attempt to unduly influence the voters via declarations of the approval of government or ministry projects during the by-election campaign would be clearly against the provisions of any written law relating to the election such as the Election Offences Act.
It would also run against the principle of a free and fair election.
The argument that the declarations of government or ministry projects are coincidentally taking place during the by-election would, with due respect, insult people’s intelligence.
After all, there are no laws deterring the ministers from publicly proclaiming such projects on other dates. - Mkini
MOHAMED HANIPA MAIDIN is a former deputy minister in the Prime Minister’s Department (law).
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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