Statement of Claim against the EC - Pakatan Rakyat
In the High Court of Malaya at Kuala Lumpur in the state of Wilayah Persekutuan, Malaysia (Civil Division). BETWEEN
1. PART I ISLAM SE-MALAYSIA [Suing as a registered society under the Societies Act, 1966]
2. DEMOCRATIC ACTION PARTY [Suing as a registered society under the Societies Act, 1966]
3. PARTI KEADILAN RAKYAT [[Suing as a registered society under the Societies Act, 1966]
4. DZULKEFLY AHMAD
5. M. MANOGARAN
6. SAIFUDDIN NASUTION ISMAIL
7. ARIFIN BIN ABO RAHMAN
8. ABBO AIL RAJOO ... PLAINTIFFS
1. TAN SRI DATO' SERI ABDUL AZIZ BIN MOHO YUSOF
2. DATUK WIRA HJ. WAN AHMAD BIN WAN OMAR
3. DATO HJ. MOHAMAD RAMJI ALI 4. DATUK DR. P. MANOGRAN 5. DATUK CHRISTOPHER WAN SOO KEE 6. DATO' HAJI MD YUSOP BIN HAJI MANSOR 7. ABDUL AZIZ BIN KHALIDIN
[Sued as Members of the Election Commission] ... DEFENDANTS
STATEMENT OF CLAIMA. PARTIES (i) Plaintiffs
1. The First Plaintiff ("PAS") is a society registered under the Societies Act, 1966. It is a political party which fielded candidates for the parliamentary elections in the 13th General Elections ("GE 13") held on s" May 2013.
2. The Second Plaintiff ("DAP") is a society registered under the Societies Act, 1966. It is a political party which fielded candidates for the parliamentary elections in GE 13.
3. The Third Plaintiff ("PKR") is a society registered under the Societies Act, 1966. It is a political party which fielded candidates for the parliamentary elections in GE 13. The First to Third Plaintiffs are members of the Pakatan Rakyat coalition (UPakatan") which worked together as an opposition coalition in GE 13.
4. The Fourth Plaintiff was the unsuccessful candidate nominated by PAS and representing Pakatan in the Kuala Selangor parliamentary constituency in GE 13
5. The Fifth Plaintiff was the unsuccessful candidate nominated by DAP and representing Pakatan in the Cameron Highlands parliamentary constituency in GE 13
6. The Sixth Plaintiff was the unsuccessful candidate nominated by PKR and representing Pakatan in the Kulim-Bandar Baharu parliamentary constituency in GE 13
7. The Seventh Pia i ntiff is a citizen of Mal aysi a, and a registered voter who voted in GE 13.
8. The Eighth Plaintiff is a citizen of Malaysia, and a registered voter who voted in GE 13.
9. The First Defendant is the Chairman of the Election Commission ("EC").
10. The Second Defendant is the Deputy Chairman of the EC.
11. The Third to Seventh Defendants are members of the EC.
12. The First to Seventh Defendants constitute the entire membership of the EC. Each of the said Defendants is individually responsible for the acts and/or omissions of the EC. All the said Defendants are collectively responsible for the acts and/or omissions of the EC. As members of the EC, all the Defendants are public servants pursuant to Section 7 of the Election Commission Act, 1957 or otherwise.
13. As members of the EC, each of the Defendants is, and was at all times, required by the terms of Article 114(2) of the Federal Constitution to enjoy "public confidence" in the discharge of their public duties and obligations.
B. DUTIES IMPOSED ON THE ELECTION COMMISSION
14. The primary duty of the EC, pursuant to Article 113(1) of the Federal Constitution, is to conduct elections to Parliament and the Legislative Assemblies of the 13 states of Malaysia.
15. The intention of the Founding Fathers, as expressed in the Reid Commission Report and provided for in Part VIII of the Federal Constitution, in establishing the EC as a constitutional body was, and is, to ensure that it would be completely independent and impartial of all political parties, and free from any interference from the executive branch of government.
16. In conducting elections, the EC is obliged to ensure under Article 119(1) of the Federal Constitution that-
(i) only citizens of Malaysia are eligible and entitled to vote in elections;
(ii) no citizen should, in the same election, vote in more than one constituency; and
(iii) each citizen only has one vote in the same election.
17. Further, the EC is obliged to ensure that the following fundamental liberties of citizens of Malaysia who are registered voters are given full practical effect :-
(i) their personal liberty under Article 5(1) of the Federal Constitution; (i i ) their equality rights under ArticIe 8 ( 1) ; (iii) their right not be discriminated under Article 8(2); (iv) their right to freedom of speech and expression under Article 10 1)(a); (v) their right to property under Article 3 ( 1); and (vi) their right to the secrecy of voting under Section 5 of the Election Offences Act, 1954.
18. Pursuant to Section 5(1 )(a) of the Elections Act, 1958 the EC shall exercise control and supervision over the conduct of elections, and shall enforce "fairness, impartiality and compliance with Part VfJl of the Constitution" on the part of all its election officers. In consequence, in addition to its constitutional duties, the EC and its staff have a statutory duty to act fairly and impartially.
C. BIAS OF THE ELECTION COMMISSION
19. The EC, constitutionally intended to be independent and impartial of the political parties, must refrain from showing preference to any party. The EC must act as a matter of fact and be perceived as always being neutral and above the fray of political parties. Further, EC must treat all political parties equally, and withjout discrimination.
20. The office of the EC reports to and is under the purview of the Prime Minister's Department, thereby compromising its status as a neutral, impartial and independent electoral agency.
21. More significantly, the First and Second Defendants are ccustomed to accepting instructions from the Prime Minister and other members of the Cabinet, thereby compromising the independence, impartiality and neutrality of EC.
22. The Plaintiffs contend, inter alia, by reason of the following public statements made by EC, that it has consistently adopted a partisan role, always favouring the ruling coalition, Barisan Nasional (UBN") : -
(i) On 20 May, 2010, EC claimed that they had no power to investigate the allegation that Prime inister Najib Razak had committed an offence of bribery under Section 10 of the Election Offences Act, 1954. The allegation involved Najib Razak announcing to a crowd on the eve of the by-election in Sibu that he would allocate RM5 million for flood mitigation projects in Rejang Park, if BN won. He told the crowd, "If Robert Lau becomes the MP on Sunday, on Monday I will ask [for] the cheque to be prepared. Do we have a deal or not? We do! You want the RM5 million, I want Robert Lau to win". The Second Defendant, on behalf of EC, stated that the 1954 Act only governed offences by candidates and their agents, other persons including cabinet ministers, cannot be charged for the offence of inducement or bribery under the Act;
(ii) On 13th July 2010, the First Defendant, on behalf of
EC, told reporters that the earliest Najib Razak would call for GE 13 was in 2013, stating that it was too early to call for General Election when Najib was way ahead of his five-year mandate. He added that "this is only the first gear and we are now entering second gear. There are five gears, so why the rush?" The Second Defendant was reported to have used the analogy of a song to characterize the Prime Minister's leadership, stating "It is like a song that is just becoming popular. When a song is becoming a hit, we should not cut it short. We should let people hear it first until everyone can sing it".
When the Second Defendant was asked about various statements made by UMNO leaders informing party members to prepare for elections in 2010, he said that it was just a reminder that party members must not be too complacent. He added, "You must look at the party preparations and whether the party is united. All BN component parties must move forward, and Datuk Seri Najib must be satisfied with their performance. That is at the party level". He concluded by stating that Najib Razak still had so many more years, there was no rush to call for General Election and that "if [he] were the prime minister, [he] would not do that";
(iii) On 5th April 2012, after Bersih 2.0 ("Bersih") announced its intention of organising a nationwide sit-in to voice their dissatisfaction with the failure of the Parliamentary Select Committee to fully implement the recommended electoral reforms, the Second Defendant stated at a press conference that decision of Bersih was hasty and rash.
Bersih is an unincorporated association dedicated to establishing clean, fair and free elections in Malaysia;
(iv) In April 2012, the fact that the First and Second Defendants were members of UMNO, the senior component party in the BN coalition, became public. On 27th April 2012, the First and Second Defendants admitted that "they could have been UMNO members a long time ago". When the Second Defendant was asked whether he was still an UMNO member, he said "I don't know and have never bothered to find out. I am not a politician, I am a government servant and this has stayed till this day. I am speaking the truth". The First Defendant was also reported to have said "I can't even remember which branch (I was an UMNO member in) because after I finished my studies I lived in several areas - Segambut, Se/ayang and Ampang. So if anyone had named me (as an UMNO member) I don't know which branch".
Following these disclosures, calls were made for their resignations from EC;
(v) On 11th May 2012, the Second Defendant, on behalf of EC, blamed Bersih and the opposition for being responsible for the withdrawal of the Election Offences Amendment Bill. One of the amendments in the Bill related to the removal of political party representatives from attending the counting of votes at polling stations. He explained that the Amendment Bill was presented because "some representatives are good, but there are those who disturb the EC staff from morning to evening",'
(vi) On 29th August 2012, it was reported that the EC accused organizers of the Janji Demokrasi gathering of having a political agenda. Instead of taking an impartial view, the Second Defendant, on behalf of EC, criticised Janji Demokrasi, a coalition of 47 NGOs, for staging their protest against the Government's failure to implement electoral reforms stating that by so doing, they were mocking the EC;
(vii) On 14th September 2012, the EC was reported to be criticising plans for states to call polls separate to the General Election. DAP responded by stating that as a neutral body, the EC should not be making such comments, with their role being merely to conduct elections;
(viii) On 22nd November 2012, the Second Defendant, on behalf of EC, told reporters that Pakatan Leader, Datuk Seri Anwar Ibrahim's request for Australia to monitor GE 13 was "disgusting and an embarrassment to the people". The Second Defendant labeled Anwar as an "attention-seeker who has no dignity in trying to tarnish the image of our country and the people";
(ix) On 10th January 2013, the Muslim American Election Observers, impartial observers of GE 13, told reporters that their biggest concern about Malaysia's electoral process is that the media in Malaysia is reflective of only one viewpoint, being heavily biased towards the Government. Inayat Malik, a member of the Muslim American Election Observers Committee, said that EC officials shrugged them off when the team raised this issue with them. The EC instead of using its power to take control of the pro-BN media, the said observers were told that "the Information Ministry or some other agency controls the licensing", thereby refusing to acknowledge that they could do something about the situation. He added that the EC was also unresponsive to the team's recommendation to ensure the integrity of electoral rolls and the proper establishment of a caretaker government after the dissolution of Parliament;
(x) On 8th March 2013, the Second Defendant announced that it was "normal" to have 28% out of 500,000 new voters in Selangor who cannot be identified given the fact that mobility in Selangor is high. He told reporters that factors such as people moving around in the cou ntry, people cha ng ing jobs and graduating, all contributed to the increase in number of voters who cannot be identified. He also attributed the increase to Pakatan's effort in registering voters and commented that "don't be surprised if I tell you, the Pakatan parties have been aggressively doing the registration in Selangor";
(xi) On 10th April 2013, when the EC was asked to comment on the legality of the caretaker government using state assets to campaign for party interest, the First Defendant, on behalf of EC, said "I don't want to respond ... But generally they are allowed to use it during the campaign period". This was not the correct position;
(xii) On 30th April 2013, the First Defendant, on behalf of EC, in rejecting the notion that the EC was subservient to the government, made the statement, "If the EC role is to ensure that BN wins, why these people work very hard. Look at our Prime Minister, he works very hard, how many hours daily I do not know. If they know they can easily win, why work so hard?";
(xiii) On 15th May 2013, 10 days after polling day, the First Defendant called Anwar Ibrahim, not to blame the EC for his coalition's loss and instead be Cia gentleman and a leader" by willingly accepting defeat. The First Defendant also urged Anwar Ibrahim CI to accept the results with an open heart";
(xiv) On allegations by the opposition that foreigners were brought in to vote for the ruling party, the Fi rst Defendant criticised those were "arresting people based on how they look", and said that it was unfair to assume that all Malaysians could sing the national anthem;
(xv) On 26th May 2013, on responding to allegations of gerrymandering on the part of the EC in favour of BN, the Second Defendant, on behalf of EC stated "Many people are unaware of how the review is conducted and merely believe some political parties which accuse us of not dOing our job in accordance with the law";
(xvi) On the issue of phantom voters, the First Defendant, on behalf of EC, was reported on 29th May 2013 to have instead blamed the public for the problem because they failed to inform the EC about the change of their voting addresses after having moved to other constituencies. The First Defendant said that the public has to cooperate with the EC, adding that political parties should stop discrediting the EC;
(xvii)On 5th June 2013, EC accused the opposition of being unfair in its allegation of the imbalance in the size of constituencies, and denied gerrymandering to help keep BN in power. The Second Defendant, on behalf of EC stated that claims of widespread malapportionment did not take into consideration the increase in voter population since the present constituencies were drawn in March 2003;
(xviii) On 10th June 2013, the Second Defend a nt, on behalf of EC, in rebuking the accusation of blackouts on polling day, criticized leaders of PKR and DAP as being "anti-democratic zealots" and those who supported them as "anti-establishment activists and youngsters ignorant of the law," He further stated that PKR and DAP won with comfortable majorities in the Permatang Pauh and Gelang Patah parliamentary constituencies respectively and "why are they instigating the rakyat with lies and slander without a shred of evidence?";
(xix) On 17th June 2013, despite admitting to the "failure" of the indelible ink during polling, the First Defendant, on behalf of EC, reiterated that GE 13 was fraud free, citing the opposition's win in Kelantan, Penang and Selangor as proof. He challenged the opposition to provide evidence of electoral fraud before calling for his resignation; and
(xx) On 20th June 2013, the Second Defendant, on behalf of EC, described the Opposition as "hypocrites" claiming that despite staging protests on the streets disputing the results of GE 13, the Opposition was not challenging the fact that they would be sworn in as Members of Parliament. The Second Defendant condemned the Opposition for shifting their stance and stated "If they had no confidence in the general election process and regulations in the first place, that it was not transparent and there would be cheating as they claimed, they should not have troubled themselves by participating in it".
23. The Plaintiffs contend that the public statements referred to in Paragraph 22 clearly indicate bias on the part of EC towards BN.
24. On 1st July 2013, Datuk Seri Shahidan Kassim, Minister in the Prime Minister's Department, stated in a written reply in the Dewan Rakyat that RM400 million was allocated to the EC for GE13, of which RM200 million was paid to EC officials and workers on duty on GE13 as bonuses and allowances.
25. Datuk Seri Shahidan Kassim added that "The payment for services and bonus to all election workers is RM204, 100, 000". It was also noted that the expenditure was a 100 per cent increase from the budget for the 2008 General Election.
26. On 9th July 2013, during the Case Management hearing of the Election Petition filed in the Kuala Lumpur High Court by Dr Dominic Lau, BN's unsuccessful candidate for the Batu parliamentary seat against PKR's successful candidate, Tian Chua and EC, the said Dominic Lau claimed that the RM2,000 fine imposed by the High Court in June 2010 on Tian Chua meant that Tian Chua should be disqualified from contesting at GE 13, and therefore he (Dominic) should have been elected. The EC had, by letter dated 19th April 2013, declared that Tian Chua was not disqualified by such fine. Most significantly, the EC did not disqualify Tian Chua from standing as a candidate for GE 13 on nomination day. Finally, EC is estopped from altering its position on the matter.
27. Nevertheless, the EC, having agreed to allow Tian Chua to contest on nomination day, shifted its position in the Election Petition instituted by the said Dr. Lau by claiming that EC was wrong in allowing Tian Chua to contest in the first place. The Plaintiffs contend that EC's shift demonstrates their partisan political stance, plainly and obviously biased against Pakatan and in favour of BN.
28. By the matters pleaded in Paragraphs 21 to 27 above, the EC was biased against Pakatan.
D. MANNER OF VOTING
29. Section 13(2) of the Elections Act, 1958 provides that every voter "should cast his vote by means of a ballot paper to be marked by him", and further that the said vote should be secret.
30. Any person who :-
(i) votes at any election when he is not entitled to vote thereof; or
(ii) votes in an election at more than one polling station in the same constituency or at a different constituency shall be guilty of committing an electoral offence, and, on conviction, to imprisonment for a term not exceeding 2 years pursuant to Section 3( 1) of the Election Offences Act, 1954.
31. The offence of "person ati a n", th at is, whe n a person applies for a ballot paper in the name of some other person, is provided for in Section 7 of the Election Offences Act, 1954. It is deemed a "corrupt practice" in Section 11 of the same Act, and is a seizable criminal offence, punishable with imprisonment. Hence, the gravity of such conduct cannot be over-emphasized.
E. INDELIBLE INK
32. Acting under powers conferred by Section 16 of the Elections Act, 1958, the EC made the Elections (Conduct of Elections) Regulations, 1981, which came into force in December 1981. The said 1981 Regulations were amended with effect from 12th February 2012 to cater for the use of indelible ink to govern both normal voting and postal or advanced voting.
33. In order to prevent multiple voting at GE 13, Regulations 19(3), (4), (7), (8) and (13) which came into force in February 2012, contain substantial laws that have to be complied by EC and its staff with regard to the manner of voting, by requiring the marking of indelible ink on the left forefinger of each and every voter prior to the said voter casting his ballot.
34. Further, Regulation 19A(1 )(c) of the 1981 Regulations (as amended) expressly states that if an EC officer finds that a voter's left forefinger had been marked with indelible ink and he or she was attempting to vote again, the said officer should not issue a ballot paper to the said voter and shall record his decision in Form 10A of the First Schedule to the Regulations.
35. Bersih had organised nationwide rallies in the years leading up to GE 13 to press for electoral reform with the objective of EC conducting free and fair elections. Among the demands made by Bersih, even before the holding of GE 12 on 8th March 2008, was the introduction of indelible ink to combat multiple voting in Malaysian elections.
36. Thus, by Press Statements issued on 4th June 2007 and 10th August 2007, Bersih welcomed the decision by EC to use indelible ink for GE 12.
37. However, on 4th March 2008 that is, on the eve of GE 12, the EC, without giving any public explanation, announced that indelible ink would not be used for that election.
38. The 14th September 2011 issue of the Star newspaper reported that a European based international company with 25 years experience in over 40 countries had questioned the fool-proof status of indelible ink by stating that indelible ink could easily be removed by common solvents and easily substituted with other inks.
39. On 19th December 2011, the First Defendant, on behalf of EC, announced that indelible ink would be used in GE 13 to prevent 22 multiple voting. He assured voters that the indelible ink would contain at least 4-7% silver nitrate and would last for at least 7 days. He further assured the public that the indelible ink would not be easily removed as it would be absorbed into the skin and nails for a number of days. Finally, the EC stated that the relevant Regulations would have to be amended before the ink could be used. The representations by the EC that the ink would have sufficient silver nitrate and last for at least 7 days were repeatedly made by the EC prior to GE 13.
40. EC's announcement on 19th December 2011 (as pleaded above) was a resu It of a long-sta nd i ng ca m pa i g n by politi ca I parties and groups such as Bersih for the implementation of indelible ink as an effective preventative measure to neutralise/prevent fraud by multiple voting arising from questionable registrations in the electoral roll. Indelible ink was also one of the key recommendations made by the Parliament Select Committee on Electoral Reform which the EC accepted.
41. On 16th February 2012, the First Defendant, on behalf of EC, confirmed that indelible ink would be used in GE 13 as the amendments to the Regulations had been gazetted on 12th February 2012 (as pleaded in Paragraph 32 above). He also stated that EC would not order the indelible ink early because the "indelible nature" of such ink normally lasts for only 3 months. EC would therefore only order the ink after Parliament is dissolved.
42. On 14th March 2012, EC announced that the indelible ink would be in 2 different colours to distinguish advance voters from those voting on polling day.
43. On 24th May 2012, Bersih issued a Press Statement inquiring why the Regulations made by EC with regard to the use of indelible ink had not been extended to advance voters. Bersih also questioned the efficacy of applying a single line on the finger of a voter rather than dipping the finger in indelible ink.
44. On 1st July 2012, the First Defendant, on behalf of EC, announced that Gu ide line s had been prepared for the use of indelible ink.
45. On 4th December 2012, EC conducted a simulation exercise for the use of indelible ink for the benefit of political parties in Selangor.
46. On 11th April 2013, the First Defendant, on behalf of EC, assured the public that the indelible ink to be used in GE 13 would be completely different from those available in the market, thereby making duplication difficult. He also announced that the EC would be purchasing 230,000 bottles of indelible ink, out of which 12,000 bottles would be used for advance voting, and the balance on polling day.
47. On 14th April 2013, concerns were raised by Bersih and election education movement, Tindak Malaysia, of the usage of indelible ink during polling day. EC announced that voters were to mark their forefingers with the ink before voting, as opposed to marking after voting, which is the common practice in other countries. The concern raised was that, if indelible ink were applied before voting, there would be an increased likelihood of ballot papers becoming smudged by the ink, resulting in the vote being counted as a spoilt vote.
48. On 27th April 2013, the EC's secretary, Kamaruddin Mohamed Baria, announced that only 3 people knew the colour of the ink, that is, the EC Chairman, the secretary himself, and a third person, whom the said secretary refused to publicly identify.
F. ADVANCE VOTING
49. Advance voting in GE 13 was held across Malaysia on so" April 2013, that is, 5 days before polling day on s" May 2013. It was fundamental to the integrity of the electoral process that EC had to take all steps to ensure that not a single advance voter voted a second time on polling day or cast multiple advance votes. A key mechanism to prevent such multiple voting was the use of indelible ink on all advance voters which had to remain on their finger for more than the entire duration of 5 days, that is, until 5pm on 5th May 2013 when polls closed.
50. Wrongfully, and in breach of their constitutional and statutory duties, EC maliciously and fraudulently occasioned the failure of the implementation of the indelible ink on advance voting day on 30th April 2013 by using ink that was not indelible and which could be easily removed in order to facilitate multiple voting.
51. Bersih and other non-governmental received numerous complaints that the indelible organisations ink used for advance voters were easily removed by using a variety of means, including hand sanitizer gel, alcohol swabs, petrol and even soap. Pictures of such removal were disseminated widely and contemporaneously on social media networks. Many police reports were also lodged.
52. On the day allotted for advance voting, that is, on 30th April 2013, PKR vice-president, Tian Chua announced that 20 security personnel had informed him that ink was entirely removed from their fingers by hand sanitizer gel. Tian Chua lodged a police report in Batu Caves at 2 p.m. on 30th April, and even the police officer who received his report informed him (Tian Chua) that the ink had been washed off from her finger.
53. In response, the First Defendant, on behalf of Ee, stated in a text message on 30th April 2013 that as police reports had been lodged, it was for the police to investigate claims that the indelible ink had been easily washed off. This was despite an earlier statement issued by him that indelible ink will not stain ballot papers as they dry within 4 seconds, and would last for at least 7 days.
54. Furthermore, all EC's Returning Officers knowing of the systematic failure of the indelible ink, wilfully failed to discharge their statutory duty under Section 24A of the Elections (Conduct of Elections) Regulations 1981 in reporting the matter to the Secretary of the EC. The fact that no such reports were made at all clearly infers that this was an instruction for the EC in order to cover up fraud.
55. On 30th April 2013, Bersih, through its associated group, Pemantau Pilihan Raya Rakyat, issued a Press Statement expressing shock at the ease by which indelible ink had been washed away from the fingers of thousands of advance voters. Pemantau demanded that EC purchase new ink and also hold a public demonstration on its usage.
56. On t " May 2013, EC's secretary announced that EC had run tests which revealed that stains marked on fingers with indelible ink from bottles that had been shaken prior to use had lasted longer than those which had not. He also assured the public that advance voters cannot vote again on polling date because their names would not exist in the electoral roll for ordinary voters.
57. On 3rd May 2013, Tian Chua and Nurul Izzah Anwar, Vice-Presidents of PKR, attended the Deputy Secretary of EC, Nordin Che Ngah at EC's office in Putrajaya to request EC to send samples of the indelible ink for testing by a reputable independent laboratory, after widespread reports were made public of indelible ink being washed away when advance voting took place on 30th April. They also requested for a list of those who had carried out advance voting on 30th April 2013 so that Pakatan could independently verify if any multiple voting was going to take place on 5th May 2013. However, EC did not accede to both requests.
58. On 4th May 2013, the First Defendant, on behalf of EC, announced that although indelible ink used in other countries contained 7% to 15% silver nitrate, the ink to be used in Malaysia would only contain 1% silver nitrate. The Plaintiffs contend that EC dishonestly, maliciously and wilfully decided to reduce the level of silver nitrate in the indelible ink to enable it to be easily washed off so that dishonest voters could vote more than once.
59. On 4th May 2013, the Second Defendant, on behalf of EC, informed reporters that he was not worried that EC's indelible ink would be washed off because voters cannot vote twice with 1 identity card.
G. POLLING DAY
60. According to data released by EC, out of the 13,268,002 registered voters who were entitled to vote in GE 13, 11,257,147 voted to elect 222 Members of Parliament, representing a 84.84% voter turnout. Regulation 19 of the 1981 Regulation (as amended) required all the 11,257,147 voters to have their left forefingers marked with indelible ink before they voted, and such ink was to remain on their fingers for 7 days to prevent multiple voting.
61. Thousands of voters lodged police reports stating that they were able to wash off the indelible ink from their fingers within hours of such ink being marked on them and after they had voted on 5th May 2013. As at the date hereof, neither EC nor the police have publicly announced the results of their investigations into these complaints. The Plaintiffs contend that on polling day on 5th May 2013, the same deliberate and fraudulent failure of indelible ink was again (after the advance voting exercise) perpetuated by the EC by knowingly using ink that was in fact not indelible.
62. Despite the assurances made by the EC that the indelible ink would last for 7 days, the Second Defendant on polling day told reporters at SMK Bukit Bandaraya polling centre in Bangsar that "I'm not worried about indelible ink washed off today because tomorrow you cannot vote". When he was asked about the quality of the indelible ink, he said that he could not confirm the quality that was supplied by the supplier and added that even though the EC had a year to obtain the best quality ink, it was a complicated process.
63. The Plaintiffs contend that these actions/omissions of EC occasioned the deliberate failure of the indelible ink so as to allow voters who had dubious and multiple registrations to vote more than once, contrary to the law.
64. In Sabah on polling date, reports were made that indelible ink was removed by merely rubbing the fingers of voters with blades of grass.
65. In responding to allegations that the indelible ink could be easily washed off, the EC told reporters on polling date that the ink used in GE13 was different from those used in other countries because the ink used in Malaysia had to comply with halal and health regulations. The First Defendant said that the Ministry of Health issued an official letter stating the content of silver nitrate in the ink must not exceed 1%. The norm elsewhere is that the ink usually contains 7% - 15% silver nitrate. He also revealed that a higher content of silver nitrate would cause internal organ failure and therefore the ink had been replaced with herbal ingredients. He further admitted that the failure of the indelible ink in some cases was due to teething problems with using the ink for the first time.
66. On 7th May 2013, the Second Defendant, on behalf of EG, stated that EG had stored some 250,000 bottles of indelible ink in police lock-ups for safe keeping, and probably due to the "long storage period, the ink content dropped and it became thinner".
67. On 13th May 2013, in an interview with The Star, the First Defendant, on behalf of EG, blamed the failure of the indelible ink on voters' fingers being oily and that some of the staff did not shake the bottle properly before applying the ink.
68. On 215t May 2013, the First Defendant, on behalf of EG, announced the formation of a special team within EC to study the problem of indelible ink being washed away, which would complete its investigation in a month. Although the specified period has passed, no reports of such investigations have been released by EC.
69. The 23rd May 2013 issue of the New Strait Times newspaper reported the EC secretary, Kamarudin Mohamed Baria stating that some of its staff members may have failed to use the indelible ink properly during polling.
70. On 6th June 2013, the Health Minister, Dr S Subramaniam, denied at a press conference that his Ministry had been asked by the EC to provide a safety report on the indelible ink (as alleged by the EC) that silver nitrate had adverse effects on users. The EC has so far not released the purported official letter from the Health Ministry.
71. In the same report, the alleged health hazard in silver nitrate was disputed by a voter, a chemist by training, who pointed out that there is no mention of carcinogenic, teratonic or mutating effects in the material safety data sheet for silver nitrate.
72. On 17th June 2013, the First Defendant, on behalf of EC, admitted to the failure of the indelible ink.
73. On 26th June 2013, Shahidan Kassim, a Minister in the Prime Minister's Deoartment, informed Parliament that the EC had used food dye instead of silver nitrate in the indelible ink. He went on to say that the strength of the ink depended on the individual voter as well as their efforts to wash off the ink. Shahidan Kassim also revealed that a total of 216,600 bottles of indelible ink worth RM6.9 million were used during GE13, a further RM200,OOO was incurred for transporting, packaging and storing of the ink, bringing the cost to a total of RM7.1 million.
74. The next day, on 27th June 2013, it was reported that despite the disclosure by Shahidan Kassim, the Second Defendant maintained that the indelible ink contained silver nitrate. The Second Defendant confirmed that the EC had agreed that the content of silver nitrate would be 4 per cent. Given the failure of the ink, however, he added that the EC is currently investigating the level of silver nitrate that was used by the supplier.
75. On 28th June 2013, Shahidan Kassim said that the EC was not responsible for fixing the amount of silver nitrate to be used during GE13. He said that the EC's standard operating procedure did not state the percentage of the chemicals to be used.
76. The Plaintiffs contend that the effects or consequences of fraudulent or dishonest conduct on a massive scale which may have affected as many as hundreds of thousands of voters washing off ink from their fingers and re-voting were to completely change or distort election results, and to pollute the entire election process nationwide in all the 222 constituencies. The Plaintiffs further contend that such conduct resulted in prejudice and detriment to Pakatan and their candidates.
77. Approximately 43 seats were lost by Pakatan in GE 13 with narrow majorities of less than 10% of the votes. Therefore even if a small percentage of dishonest voters were able to wrongfully vote more than once because of the deliberate failure of the EC to implement indelible ink, they were sufficient to affect the results in a significant number of seats.
78. In so acting, the EC dishonestly aided and abetted the commission by dishonest voters of the offence of personation which the indelible ink was intended to prevent. The EC was thereby privy and part of the commission of a corrupt practice, and a seizable offence under the Election Offences Act, 1954.
79. The Plaintiffs contend that the commission of such a flagrant and deliberate fraud amounting to corrupt practice was committed by the EC with the intent of violating Regulation 19(3), (4), (8) and 19A(1)(c) of the 1981 Regulations (as amended).
80. The Plaintiffs contend that such massive, systematic and deliberately occasioned fraud of the electoral process must be deemed to have affected the result of elections in GE 13. This was the natural, direct and foreseeable consequence of EC's acts/omissions.
81. The PI ai ntiffs contend tha t the massive cheating caused by the washing away of indelible ink destroyed the integrity of the entire voting process of GE 13. It vitiates the results of GE 13. It further resulted in Pakatan being deprived or denied the opportunity of beco m i ng the m aj ority party that aug ht to have formed the federal government of Malaysia at the conclusion of GE 13.
82. The Fourth to Sixth Plaintiffs contend that each of them were defeated in their respective constituencies by result of cheating through the misuse of indelible ink. The Fourth and Fifth Plaintiffs have, in separate Election Petitions, challenged the validity of the elections in their respective constituencies on various grounds, including the misuse of indelible ink.
83. The Seventh and Eighth Plaintiffs washed off the indelible ink from the fingers on polling day itself. Each of them only voted once in GE 13.
H. CAUSES OF ACTION
84. By the matters aforesaid, the Fourth to Eighth Plaintiffs contend that the fundamental liberties that each of them enjoys under the Constitution (and pleaded in Paragraph 17 above), were violated by the massive cheating occasioned by the misude of indelible ink.
85. The Plaintiffs contend that the EC maliciously and dishonestly planned, designed, implemented and practised a massive fraud on the electorate of Malaysia by wilfully and deliberately allowing the indelible ink to be so diluted that it could easily be washed off so that dishonest voters could undertake multiple voting and, in fact did so, to the detriment of the Plaintiffs.
PARTICULARS OF FRAUD
(i) The Plaintiffs shall rely on the matters pleaded in Paragraphs 19 to 83 above as particulars of fraud.
(ii) Despite having actual knowledge that indelible ink had been washed away from thousands of advance voters on 30th April 2013, EC insisted on the same ink (albeit a different colour), being used on 5th May 2013;
(iii) Introducing chaos to the polling station as inked fingers smudged the ballot paper,leading,to selective rejection during and counting by the presiding officer;
(iv) Some voters used the inked finger to mark their vote because there were no pens at the voting counter and voters mistakenly thought that they were supposed to use the indelible ink to mark.
86. In so conducting themselves to create the conditions for the washing off of the indelible ink, each of the Defendants illegally conspired with each other, with the staff of EC and with persons unknown.
PARTICULARS OF CONSPIRACY
The Plaintiffs shall rely on the same particulars as pleaded in Paragraphs 19 to 83 above as particulars of conspiracy.
85. Further or alternatively, by the matters aforesaid, each of the Defendants acted in breach of their constitutional and statutory duties, to the detriment of the Plaintiffs.
PARTICULARS OF BREACH
The Plaintiffs shall rely on the matters pleaded in Paragraphs 19 to 83 above as particulars of breach of constitutional and statutory duties.
86. By the matters aforesaid, each of the Defendants committed the tort of misfeasance by a public officer.
PARTICULARS OF TORT
The Plaintiffs shall rely on the matters pleaded in Paragraphs 19 to 83 above as particulars of the tort of misfeasance committed by a public officer.
87. By the matters aforesaid, each of the Defendants had taken oppressive, arbitrary and unconstitutional action. In consequence, each of the Defendants is liable to pay exemplary damages to the Plaintiffs.
Accordingly, the Plaintiffs pray for judgement against all the Defendants as follows:-
1.A Declaration that each of the Defendants, whether acting individually or collectively as the EC, jointly or severally, failed in their constitutional duty and obligation to properly conduct the 13th General Elections;
2.A Declaration that each of the Defendants, whether acting individually or collectively as the EC,maliciously and dishonestly practiced a fraud on the electorate of Malaysia by the misuse of indelible ink for voting in GE13;
3.By reason of the actions and omissions of each of the Defendants, whether acting individually or collectively as the EC, and whether jointly or severally, with regard to the misuse of indelible ink, a Declaration that the results announced by EC at the conclusion of GE13 for all the 222 parliamentary seats are hereby declared null and void;
4.In consequence of Paragrahp 3, an Order setting aside the results for all the 222 parliamentary seats in GE 13;
5.An Order that in consequence of their aforesaid conduct, each of the Defendants is hereby removed from office as members of EC with immediate effect;
6. An Order that a newly constituted EC conduct fresh general elections pursuant to Part VIII of the Federal Constitution (and other written laws) for all the 222 parliamentary seats within 120 days of the date hereof;
7. An Order that the said fresh general elections be conducted freely and fairly, and in accordance with the letter and spirit of the Federal Constitution (and other written laws), and that until the results of such fresh general elections become known, the ruling BN Government continues to remain in office as a Caretaker Federal Government;
8. An Order that each of the Defendants pay for the costs and expenses of the fresh general elections, without recourse to the Consolidated Fund;
9. An Order that each of the Defendants pay exemplary damages to the Plaintiffs, without recourse to the Consolidated Fund;
10. An Order that each of the Defendants pay general damages to the Plaintiffs, without recourse to the Consolidated Fund;
11. An Order that each of the Defendants pays interest at such rate and for such period as the Court deems fit on all damages ordered to be paid to the Plaintiffs, without recourse to the Consolidated Fund;
12. Costs to the Plaintiffs on a solicitor/client or full indemnity basis, without recourse to the Consolidated Fund; and
13. Further or other relief.
Dated this 15th day of July, 2013
Solicitors for the Plaintiffs. This Statement of Claim is filed by Messrs Tommy Thomas of 101, Jalan Ara, Bangsar, 59100 Kuala Lumpur, Solicitors for the Plaintiffs above-named.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.