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.

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