Sunday, February 24, 2008

Fulfilling the nomination process

TOMORROW is nomination day for the 2008 general election. Hundreds of candidates will vie for the 191 parliamentary seats and 505 state seats in Peninsular Malaysia and Sabah, and 31 parliamentary seats in Sarawak.

However, one hopes no candidate will make any mistake on his nomination papers.

Under Article 47 of the Constitution, a nominated candidate must be a citizen of 21 years old who is a resident here.

Article 48 then provides that he is disqualified if:

(a) he is of unsound mind; or

(b) he is an undischarged bank-rupt; or

(c) he holds an office of profit; or

(d) he has failed to lodge any return of election expenses unless this disqualification is removed by the Yang di-Pertuan Agong or five years have passed from the date on which the return was required to be lodged; or

(e) he has been convicted of an offence by a court of law and sentenced to imprisonment for a term of not less than one year or to a fine of not less than RM2,000 and has not received a free pardon unless this disqualification is removed by the Yang di-Pertuan Agong or five years have passed from the date on which the person convicted was released from custody or the date on which the fine mentioned was imposed on such person; or

(f) he has voluntarily acquired citizenship of or exercised rights of citizenship in a foreign country or he has made a declaration of allegiance to any other country; or

(g) he has resigned from the Dewan Rakyat less than five years ago.

Article 49 of the Constitution also prohibits a member of the senate to stand for election unless he has first resigned from the senate.

In addition, if the candidate is standing for a state seat, the state constitution also requires him to be a resident of that state. In Abdul Fattah Mogawan & Anor v MMC Power Sdn Bhd & Anor 1997, the word "resident" was judicially considered to denote a person's home.

Article 160 defines the phrase "office of profit" as any full-time office in any of the public services. The phrase "public services" is defined in Article 132.

In Lee Hie Kui @ Eric Lee v Song Swee Guan & Anor 1998, it was held that the office of a mayor is not an "office of profit".

One piece of legislation which a candidate must know is the Elections (Conduct of Elections) Regulations, 1981.

The regulations contain important provisions such as the following:

- A candidate for a parliamentary seat must submit Form 4 (nomination form) and Form 5 (statutory declaration) while Forms 4A and 5A are for the use of a candidate contesting a state seat.

- The nomination form must be signed by the candidate, his proposer and seconder and the witness who witnesses the signature of the candidate. The proposer and seconder must be registered voters of the constituency for which the candidate seeks election. This requirement does not apply to the witness.

Regulation 4(6) states that the failure to comply with the above shall render the nomination paper to be rejected.

The 1981 regulations also require a candidate to deposit the sum of RM10,000 and RM5,000 when submitting nomination papers for the parliamentary and state seats respectively. The deposit will be forfeited if the candidate fails to secure one-eighth of the total number of votes polled (not inclusive of rejected votes); otherwise the deposit can only be claimed one year later.

Then, the nomination papers (including the original copy of the statutory declaration in Form 5 or 5A, as the case may be), must be submitted in triplicate to the returning officer at the place of nomination between 9am and 10am.

However, the candidate and his proposer or seconder can still make any corrections on the nomination papers before 10am.

As regards the Election Commission's announcement two days ago that the statutory declaration has to be stamped with RM10 duty, I think the decision is unnecessary for the following reasons:

- the law allows any unstamped document to be stamped 30 days after execution (s. 47, Stamp Act 1949);

- if not stamped within 30 days, it can still be stamped later by paying a penalty up to RM100 (s. 47A, Stamp Act 1949; and

- an unstamped document will only be rendered inadmissible as evidence in court but its validity will not be affected (s. 52, Stamp Act 1949).

If the matter goes to court, the candidate can always pay up the stamp duty and penalty before admitting the document in court.

Further, it can also be argued that a statutory declaration in this case is a "declaration in writing" made pursuant to a statute and is therefore exempted from stamp duty under the 1949 Stamp Act. For these reasons, it will be wrong if any nomination is rejected on the ground that the statutory declaration is not stamped.

Thereafter between 10am and 11am, the returning officer will display the nomination papers in a conspicuous position outside the nomination place for examination by the candidates, their proposers, seconders and one other person, if any, appointed by each candidate.

Any registered voter in that constituency or candidate may then object to any nomination paper on any of the above-mentioned grounds only.

The objection must be in writing and signed by the objector.

It must be submitted to the returning officer between 10am and 11am. The returning officer shall decide on the validity of every objection and he may seek the advice of the Attorney-General's Chambers.

The decision of the returning officer shall be final and shall not be called into question in any court. However, any person aggrieved by the returning officer's decision may still challenge it by presenting an election petition under the Election Offences Act 1954. Hence, if any candidate still does not get it right, then maybe he is not fit to be elected.

Saturday, February 23, 2008

Rush to have forms stamped

The Star

ALOR STAR:- Opposition candidates from Kedah, Terengganu and Kelantan, which observe Friday as a weekly rest day, had to rush to neighbouring states to have the stamp duties on their nomination forms validated by district offices.

PAS information chief Mahfuz Omar said the Election Commission (EC) informed political parties of the new ruling only on Thursday, forcing PAS, PKR and DAP candidates to hurry to other states to get the job done before nomination day tomorrow.

“The commission should not impose last minute rulings that could jeopardise opposition candidates’ right to contest,” he said during press conference to announce the PAS candidates’ list for Kedah yesterday.

It was reported that candidates submitting their nomination papers must have the accompanying statutory declaration stamped, or risk having the papers rejected.

Mahfuz said it was clearly stated on the top right corner of the declaration form, Duti Setem Dikecualikan (Stamp duty exempted).

In Kuala Lumpur, lawyer Roger Tan, who is the Malaysian Bar Council’s Conveyancing Practice Committee chairman, said it was legally wrong to reject any nomination if the statutory declaration was not stamped immediately.

He said the Regulation 4(7) of the Election Regulation (Conduct of Election) 1981 only provided that the original copy of the statutory declaration must be submitted and did not say it had to be stamped.

Tuesday, February 19, 2008

Fiji bans meeting of legal experts

The Australian

QUEENSLAND Supreme Court judge Roslyn Atkinson and a party of international legal experts have been barred from entering Fiji amid growing concern about the legality of the interim Government's actions.

Justice Atkinson had been due to fly to Fiji this week as part of an International Bar Association delegation that had planned to assess the state of the rule of law under the country's interim Government.

But the delegation, which also included Malaysian Bar Council member Roger Tan, has been banned because the Fiji Government says its presence could affect litigation under way in that country.

Fiji Law Society president Isireli Fa said yesterday he believed the real reason for the ban was to prevent international scrutiny of the way the interim Government had been dealing with the country's courts and legal system.

Justice Atkinson said she was very surprised by the attitude of the Fijian Government. "I hope that they reconsider and allow the visit of the IBA to proceed in the interests of openness and accountability," she said.

The incident, which was condemned yesterday by Australian Bar Association president Tom Bathurst QC, coincides with a series of challenges to the actions of the interim Government, which seized power in a military takeover in 2006.

Mr Fa said the interim Government had convened a tribunal and asked it to investigate accusations against Fiji's suspended chief judge Daniel Fatiaki. That tribunal adjourned last week to permit Chief Justice Fatiaki to take separate proceedings to determine the tribunal's jurisdiction.

The Fiji Law Society is running a constitutional challenge to the appointment of judges by the interim Government; and the deposed prime minister Laisenia Qarase is challenging the legality of the 2006 military takeover.

Mr Fa said the Fiji Law Society called on the Australian legal profession and the Australian Government to help it overturn the ban on the IBA delegation.

Foreign Minister Stephen Smith said in a statement last night: "Australia continues to urge the regime to return Fiji to democracy and the rule of law."

Australian Bar Association president Tom Bathurst QC said his organisation condemned the ban on the IBA delegation.

The ban was imposed after correspondence in which Attorney-General Aiyaz Sayed-Khaiyum told the IBA on February 3: "You are not welcome in Fiji at this time."

Malaysian lawyers criticise Fiji

Radio Australia

A senior Malaysian lawyer says Fiji has missed an opportunity to show its judicial process is above board and there is nothing to hide.

The Fiji Times says the head of the Malaysian Bar, Ambiga Sreenevasan, was commenting on Fiji's refusal to allow a visit by an assessment team from the International Bar Association.

Among those prevented from entering was Malaysian Lawyer Roger Tan.

Earlier, Fiji's interim Attorney General, Aiyaz Sayed-Khaiyum, said the delegation of international lawyers was not welcome because their presence would undermine the independence of judges hearing high-profile cases.

Malaysian lawyer barred from entering Fiji

The Star

PETALING JAYA: A member of the Malaysian Bar Council who was selected to join an international team to examine the independence of the judiciary in Fiji has been barred from entering the country.

The “stop arrival order” issued by the interim government to border officials at the Nadi International Airport last Friday was effective from yesterday till this Friday.

Senior lawyer Roger Tan said he was supposed to board the flight from here to Sydney en route to Fiji last Saturday evening.

He was part of an International Bar Association (IBA) delegation scheduled to arrive in Fiji on Sunday evening to examine the independence of the judiciary and the state of the rule of law in the country.

A check on the Malaysian Bar website revealed that the order also prohibited other members of the delegation – including Justice Roslyn Atkinson of the Supreme Court of Queensland, Australia and Felicia Johnston, from the IBA’s Human Rights Institute – from entering Fiji. 

The site reported that Johnston, who arrived in Fiji at 5.30am on Saturday morning from Los Angeles, was unaware of the order when she was denied entry. She left for Brisbane, Australia, seven hours later.

The site quoted Fiji Law Society President Isireli Fa as saying that the action taken by the government was totally unnecessary and had put the country in a bad light.

The site also posted a press release by the IBA yesterday quoting its president Fernando Pombo and executive director Mark Ellis.

While Pombo called on the Fijian interim government to reverse its decision on the bar order, Ellis described the ban as depriving Fijians of “the opportunity to have an open discussion and objective feedback on issues that are clearly of concern for both the country and the international community”.

Malaysian Bar president Ambiga Sreenevasan called the episode “a missed opportunity for the Fiji government to show that its judicial process is above board and that they have nothing to hide”.

“I am confident that the IBA will be very professional and neutral in its observations as they are highly experienced in undertaking missions of this sort,” she said.

Fiji, which achieved independence in 1970, has been affected by several military coups; the most recent being in December 2006.

Monday, February 18, 2008

Fiji misses opportunity: Malaysian lawyer

The Fiji Times

FIJI has missed an opportunity to show its judicial process is above board and they have nothing to hide as the International Bar Association was very neutral in their observations and were highly experienced.

Malaysian Bar President, Ambiga Sreenevasan made the comment on the Malaysian Bars website in reaction to the barring of members of the International Bar Association members from travelling to Fiji to conduct an independent assessment.

"I am confident that the IBA will be very professional and neutral in its observations as they are highly experienced in undertaking missions of this sort", Mr Ambiga said.

Malaysian Lawyer Roger Tan was barred from entering Fiji after the interim government issued a stop arrival order to border officials at the Nadi International Airport last Friday prohibiting him from entering the country.

The order prohibits Tan, Peter Maynard, Justice Roslyn Atkinson, Felicia Johnston and Cecelia Burgman from entering the country and it is effective from the 18th to the 22nd of this month.

Tan is the Chair of the Conveyancing Practice Committee of the Malaysian Bar Council.

He holds a Bachelor of Laws with Honours from Queen Mary College of the University of London, and a Master of Laws from the National University of Singapore.

On January 30, interim Attorney General of Fiji, Aiyaz Sayed-Khaiyum said the IBA Human Rights Insitute was not welcome to visit Fiji now because their presence would undermine the independence of judges hearing high-profile cases.

Tan, who was supposed to board the flight from Malaysia to Sydney en route to Fiji yesterday evening.

Sunday, February 3, 2008

Choice for Chinese is here already

I rarely write about politics but when I was asked by some close friends why they should vote for the MCA and therefore, Barisan Nasional, I thought I should take a stand and say a few words.

In fact, the Chinese in this country face this conundrum every general election for the simple reason that the DAP fields most of its candidates against the MCA each election.

Many of my friends have always thought that one day I would join the DAP. I do not blame them.

As a boy, I was already interested in politics. In secondary school, I borrowed Lim Kit Siang's book, Time Bomb, from a Malay teacher. It contained fiery speeches made by him in parliament. At the Tunku Abdul Rahman College, I won with a huge majority in student representative elections after taking on the incumbent, who was the preferred choice of the college authorities.

I remember one particular general election when Kit Siang, the late V. David and Chan Kok Kit turned up at the Yong Peng High School to campaign. Their speeches, even though delivered partly in Hokkien before a huge crowd, were fiery and they received loud cheers and applause.

I was fired up by Kit Siang as I shared his anti-establishment feeling. I was inspired and I admired his intrepidity in taking upon the government.

But over the years, as I grew older and more experienced, my views on Chinese politics in the country have also undergone some changes.

My respect for Kit Siang, notwithstanding, I not only did not join the DAP but its anathema, as I began to question whether Chinese interests can be best protected by the DAP or the MCA.

Of course, if not for a domestic injunction imposed by the home affairs minister, I would have been in politics earlier. But whatever it is, my family comes first.

On that score, how we vote is important for the sake of our family and the next generation.

I have again watched the fiery Kit Siang on an Internet news portal.

Kit Siang said in his speech in support of the DAP candidate for the Petaling Jaya Utara parliamentary seat, Tony Pua, that to punish Umno, we must vote out the MCA incumbent, Datin Paduka Chew Mei Fun. He went on to complain about the weak Chinese leadership in Penang after Tun Dr Lim Chong Eu.

Wait a minute. Is that how the Chinese in this country should vote? If it is the case that to take on Umno, one should vote against the MCA, then the same applies that to punish Pas, one should vote against the DAP.

If the DAP, which preaches a Malaysian Malaysia, cannot even defend this simple principle by continuing to co-operate with Pas in the Barisan Rakyat, then it has lost every credibility to speak up for the rights of the Chinese in this country.

I have also come to the conclusion that the DAP should bear part of the responsibility for the decline of Chinese political clout. Kit Siang should not lament a weak Chinese leadership in Penang when he had no qualms in removing a strong and charismatic Chinese leader in Chong Eu. I hope it is not making the same mistake in diluting the Chinese political clout in Penang by positioning all its generals there.

Having also worked hand-in-hand with many other races in the business world for many years reminds me of the concept of power-sharing practised by Barisan Nasional. It is the best form of government in a multiracial, multicultural and multi-religious society like ours.

My family and I have always subscribed to the belief in the politics of moderation rather than confrontation. We believe that to change things, it is more effective to do it within the system than outside.

We know that in a country like ours, with its racial, cultural and religious diversity, it is not that easy to govern. Yet in the last 50 years, save for the May 13, 1969 incident, we have generally experienced peace and stability.

Whenever Umno hits out at the MCA, the party suffers in the eyes of the Chinese. Likewise, when the MCA hits out at Umno, the latter suffers in the eyes of the Malays. This is the price to pay if we are unable to co-exist. But the will by all the component parties in BN to co-operate for the common good in the last five decades speaks volumes of the friendship and moderation among the many races. This is a feat which many countries cannot emulate.

I then chanced upon this interview shown on the same Internet portal where four Chinese in Kuala Terengganu were interviewed.

How true indeed that one will not appreciate the status quo unless he is deprived of it. In the video clip, four Chinese were asked whether they would vote for Pas in Terengganu. These are their replies:

Tam Kin Heng, gingseng seller: "BN baik sikitlah. Dia membangun, jalan pun semua OK. Saya undi BN."

Tan Eng Hock, temple caretaker: "Pas itu janji tak buat. Dia janji-janji tak buat. Dia janji sahaja. Tapi Barisan dia janji, ada buat. Macam tengok dia buat Terengganu sekarang banyak maju, bangunan-bangunan semua naik. Pas tak buat. Buat apa?"

Chong Kein Lean, housewife: "Macam Paslah, tak ada harapanlah. Gelap. Sekarang Barisan bagi semua pun OK. Undi siapa? Inilah... Biru... Barisan."

Linda Yoong, retiree: "I prefer Umno. (Under Pas), the town seemed so quiet. You see, the karaoke joints were all closed down. At night-time, there is nowhere to go. Now at least more outsiders come here."

I hope the Chinese in this country will not have to feel this way again.

Speaking about freedom and rights, the improvement and awareness process takes time, not overnight. But one ought to give credit when it is due.

It cannot be denied that the Abdullah administration created the space and room for much intellectual activity in this country.

The Royal Commission on the Lingam video clip would not have been possible if he had not listened to the stakeholders in the administration of justice.

Speaking about the economy, the Chinese smallholders in new villages are also enjoying a boom in unprecedented high commodity prices. Our ringgit is also at its strongest in the last 10 years.

Like many other graduates of TAR College, we Tarcians are grateful to the MCA. So, whenever I play the Chinese MCA election song, Treasure and Strive, it carries a special feeling of gratitude for it also summed up the struggles and achievements of the MCA. When translated, it goes like this:

"We really want to accompany you

To walk the next half of the century

To work hard because our roots are here

So that our children will not suffer

As we face the winding roads in the years ahead

We need you to give us more encouragement

Even in times of wind and storm

We will be your guardian in the rain

For the past difficult years

We thank you for standing by us without abandoning us

For the many years ahead

Let's cherish and work hard together

No matter how heavy the storm

We'll stick together throughout

We will never run away from fear

We'll be with you forever

Stop vacillating and searching

For your choice is here."

All in all, with a shrinking Chinese population and voting power, the need for a strong Chinese representation in the government outweighs all other considerations.

Every MCA seat matters. So, just change? No, not if we get shortchanged.

This article was first published in the New Sunday Times on March 2, 2008.