KOTA KINABALU: Upko has called for the restoration of Sabah and Sarawak’s right to have at least 34% of the total number of parliamentary seats in the country.
Its secretary-general Datuk Wilfred Madius Tangau said the present seat allocation in both states was lower than what was agreed in two key documents drawn up during the formation of the Federation of Malaysia.
He said the party had studied the Cobbold Commission report and the Malaysia Agreement signed on Aug 28, 1963 and found that the distribution of seats in the peninsula must not be more than two-thirds of the nation’s parliamentary seats.
“Peninsular Malaysia was allocated 104 seats, Singapore 15, Sabah 16 and Sarawak 20, making it 51 seats outside the peninsula, or 34% of the 155 parliamentary seats at the time.
“Unfortunately by 1974, the peninsula was given an additional 10 seats while there were no additional seats for Sabah and Sarawak,” Tangau said.
With the withdrawal of Singapore from the federation, it was now possible for the peninsula to secure a two-thirds majority without the support of Sabah and Sarawak, he pointed out, adding that the peninsula had 166 seats now against Sabah and Sarawak’s 51 seats.
He said that to rectify the situation, Upko had proposed to the Parliamentary Select Committee (PSC) on electoral reforms last week that Sabah be allocated 10 seats and Sarawak 21 seats, making it a total of 87 seats for both states.
Also highlighted in the 101-page proposal to the PSC was the party’s resolve to set up a Royal Commission of Inquiry to investigate the existence of Project IC holders and clean up the electoral roll.
Until the RCI cleared all doubts on the existence of Project IC holders, he said Upko would not support the automatic registration of voters who turn 21.
Upko also wants the restoration of the distribution of seats according to racial composition.
Tangau said the redelineation of electoral boundaries by Election Commission in 1993 saw the beginning of a systematic reduction of non-Muslim natives and Chinese-dominated seats.
PENAMPANG 30th Nov, 2011: Barisan Nasional component, United Pasok-Momogun Kadazandusun Murut Organisation (Upko) wants the Election Commission (EC) to maintain the 34 per cent allocation of parlimentary seats for Sabah and Sarawak in the upcoming re-delineation exercise.
In making the call, Upko secretary-general Datuk Wilfred Madius Tangau said the party wanted the EC to strictly follow the policy and spirit of the Malaysia Agreement.
He said the demand was justified as it was stated very clearly in the agreement that the EC should not only take into consideration the population or number of voters but also the size of parliamentary constituencies in the re-delineation process.
“For example, the Tuaran parliamentary constituency is bigger than Perlis and likewise, the Kinabatangan parliamentary constituency is bigger than the state of Pahang.
“That’s why, we want the Election Commission to rectify the situation in the present re-delineation exercise for the good of the people and the state, and we presented the highlights of our proposal to the Parlimentary Select Committee (PSC), in a public hearing here last Friday,” he told reporters here yesterday.
Also present were Upko Vice President, Datuk Maijol Mahap, Upko Women Head, Datin Jainah Sintian and Upko Komulakan Head, Ewon Benedict.
Madius said a careful analysis of the geographical sizes of the three territories showed that Peninsular Malaysia with a land size of 131,598 sq km was allocated 166 seats as opposed to Sabah and Sarawak, with a total of 198,081 sq km, being allocated with a mere 56 seats.
In this respect, he said Upko proposed that Sabah be given an additional 10 parliamentary seats, making it 35, and a corresponding 21 parliamentary seats increase for Sarawak (in addition to the present 31 seats), making it a total of 87 seats for Sabah and Sarawak.
“With 87 seats (Sabah and Sarawak) versus 166 seats for Peninsular, it will no longer be possible for members of parliament from Peninsula to amend the Federal Constitution, without the support from Sabah and Sarawak,” he said.
Madius said, apart from demanding that the EC reinstate the state constituency of Langkon in Kota Marudu, the re-delineation excercise must take into account the ethnic groups such as Kimaragang, Tabilung, Lotud, Lundayeh, Tatana, Papar and Membakut Kadazan and the Orang Asli in Peninsula Malaysia when processing the redrawing of parliamentary boundaries so that these ethnic groups are represented in the State Assembly and Parliament.
Madius said, apart from that, Upko has also reiterated their stand that the EC should restore the state seat of Langkon. He said, the past redrawing of electoral constituencies has resulted in the reduction of seats for non-Muslim bumiputeras areas and the Chinese areas.
“In this instance, the Kadazandusun Murut (KDM) lost more than eight seats, including the Langkon and Sook seats before Sook was eventually reinstated,” he said.
He said Upko will also continue to demand that the federal government heed the concerns and unanswered questions of the people on the existence of ‘Project IC’ and establish a Royal Commission of Inquiry (RCI) to investigate into the matter including the sworn statements that were made during the Likas election petition in 1999.
“Besides this, Upko also wants the dramatic increase of Sabah population to be given attention in the establishment of the RCIwhile at the same time calling for the electoral rolls to be cleaned up,” he said.
Madius said, Upko would not support the automatic registration of a voter as an option when a person reaches the age of 21, as the question on the existence of ‘Projects IC’ has not yet been fully addressed by the authorities.
PENAMPANG Nov 30, 2011 : The Election Commission (EC) in its present re-delineation exercise, has been urged to adhere to the policy ensuring that 34 per cent of parliamentary seats must be from Sabah and Sarawak
This is because it is stated so in the Cobbold Commission Report and the Malaysia Agreement, United Pasokomogun KadazaDusun Murut Organization (Upko) leaders said.
Upko secretary general Datuk Wilfred Madius Tangau told reporters yesterday that Upko’s study of the Cobbold Commission Report and Malaysia Agreement signed on August 28, 1963 found that it was carefully decided that the number of parliamentary seats in Peninsular Malaysia must not be more than two thirds of the total parliamentary seats.
This is to ensure that any attempt to amend the Federal Constitution, especially those touching on the special safeguards of the Borneo states, must have support from the Borneo states, he said in a press conference which was also attended by Upko vice president Senator Datuk Maijol Mahap, Women Movement chief Datin Dr Jainah Sintian, Komulakan chief Ewon Benedick and party members.
“Thus the peninsula was allocated 104 seats as opposed to 15 seats for Singapore, 16 for Sabah and 20 for Sarawak giving them a total 51 seats which constitute 34 per cent of the total 155 parliamentary seats.
“Unfortunately by 1974, Peninsular Malaysia was given an additional of 10 seats increasing the number there to 114 while there were no additional seats for Sabah and Sarawak. And with the withdrawal of Singapore from the federation, it was now possible for the peninsula to secure a two-third majority without the support of Sabah and Sarawak,” he stressed.
He pointed out that to date, Peninsular Malaysia has 166 parliamentary seats as opposed to 56 seats for Sabah and Sarawak.
According to Madius, in addition to the anomaly, a careful analysis of the geographical sizes of the three territories showed that Peninsular Malaysia with a land size of 131,598 sq km was allocated 166 seats compared to Sabah which is 73,631 sq km (25 seats) and Sarawak, 124,450 sq km with 31 seats.
To rectify the situation, Upko had proposed to the Parliamentary Select Committee on Electoral Reform to ensure that in the present re-delineation exercise, Sabah should be given an additional of 10 parliamentary seats and Sarawak 21 making the total 87 seats.
With 87 seats against the 166 seats in Peninsular Malaysia, it will no longer be possible for members of parliament there to amend the Federal Constitution without the support from Sabah and Sarawak, he stressed.
“In doing so, we would have followed the spirit of the Cobbold Commission and the Malaysia Agreement,” he said and reminded the Election Commission to strictly follow the policy of ensuring that 34 per cent of parliamentary seats is always maintained for Sabah and Sarawak in subsequent re-delineation exercises.
Upko, he added, also proposed to the Parliamentary Select Committee that the re-delineation exercise must be done with the view to ensure that major native communities such as the Kimaragang, Tabilung, Lotud, Lundayeh, Tatana, Kadazan Papar and Membakut as well as the Orang Asli of Peninsular Malaysia are represented.
According to Madius, the removal of the Langkon state constituency had denied certain groups in the area of representation and in line with that, Upko demanded for the Election Commission to reinstate the state constituency.
If the Election Commission can reinstate Sook, then there is no reason why it cannot do the same for Langkon, he stressed.
Upko, he added, also cautioned the Election Commission to be truly autonomous and independent as well as more professional in treating proposals, complaints as well as objections from the State Government and leaders in the aspect of its re-delineation exercise.
Non action by the Election Commission of the views, proposals and objections by various parties to the 1993 re-delineation exercise saw the beginning of a systematic reduction of non-Muslim natives and Chinese dominated seats by the Commission.
“We lost more than eight seats including the removal of Langkon and Sook,” he lamented and added that Upko wants the Election Commission to reinstate the 1967, 1976, 1981, 1985, 1990 distribution of seats according to racial composition.
The setting up of the Parliamentary Select Committee on Electoral Reform is a golden opportunity to rectify past arbitrary decision of the Election Commission to one that is based on the spirit of formation of Malaysia which is to seek harmony, stability, progress and prosperity for all, Madius pointed out.
He also took the Election Commission to task for going against its own guidelines in the issue of creating a new parliamentary constituency such as Putrajaya.
Madius said, according to the Election Commission, for an area to be gazetted as a parliamentary constituency, it must have a population of more than 60,000 people.
For a suburban area, the population must be between 30,000 to 59,000 while a rural constituency must have a population of less than 30,000 people.
“But this is not so with Putrajaya as it has a population of less than 20,000 people and therefore is not qualified to be a parliamentary constituency. So this is clearly the case of the Election Commission going against its own guidelines,” he stressed.
Party seeks 10 extra seats for Sabah in Parliament
PENAMPANG: United Pasokmomogun Kadazandusun Murut Organisation (Upko) has proposed for the creation of an additional 10 parliamentary seats in Sabah in the next electoral redelineation exercise.
(Seated from left) Upko Wanita Chief Dr Jainah Sintian, vice-president Datuk Maijol Mahap, secretary-general Datuk Wilfred Madius Tangau, and Komulakan wing (a pre-youth wing in the party) chief Ewon Benedick showing copies of the party’s proposal and 1963 Malaysia Agreement at the Upko headquarters in Penampang yesterday.
It also suggested an additional 21 parliamentary seats for Sarawak. The party said its proposal was based on the Cobbold Commission report and the 1963 Malaysia Agreement.
"Upko has studied the Cobbold Commission report and the Malaysia Agreement signed on Aug 28, 1963, and found that it was carefully decided that the total number of parliamentary seats in the peninsular must not be more than two thirds of the total parliamentary seats," said Upko secretary-general Datuk Wilfred Madius Tangau.
The provision in the report and agreement was to ensure that any attempt to amend the Federal Constitution, especially those touching on the special safeguards of Sabah and Sarawak, must have support from the two states.
Madius argued that based on the 1963 agreement, the peninsular was allocated 104 seats, Singapore (15), Sabah (16) and Sarawak (20).
The 51 seats for Singapore, Sabah and Sarawak constituted 34 per cent of the total 155 parliamentary seats. In 1974, 10 seats were created for the peninsular, making it 114 seats.
Coupled with the withdrawal of Singapore from the federation in 1965 meant that the peninsular could now secure two thirds in Parliament without the support of Sabah and Sarawak, said Madius.
To date, the peninsular, with a land size of 131,598sq km, is allocated 166 seats while Sabah (73,631sq km) has 25 seats and Sarawak (124,450sq km) has 31.
In 1962, the British and Malayan government set-up the Cobbold Commission to find out if the people of North Borneo (Sabah) and Sarawak were interested join forces to create the present day Malaysia.
Headed by former Bank of England governor, the late Lord Cobbold, the commission comprised luminaries such as the late Tan Sri Wong Pow Nee, who was then Chief Minister of Penang (1957-1969), the late Tun Mohd Ghazali Shafie, former foreign minister (1981-1984), former governor of Sarawak Sir Anthony Abell (1950-1959) and former chief secretary of Malaya, Sir David Watherston (1952-1957).
Hoping to get its proposal heard, Upko took it to the Parliamentary Select Committee on electoral reforms, which conducted its public hearing here over the weekend.
Madius claimed that the party's proposal was aimed at improving the electoral process and determining the optimum number of parliamentary seats for the country, among others.
Nov 30, 2011 Penampang: Sabah and Sarawak risk losing the special safeguards provided for both under the Malaysia Agreement if nothing is done to realign the policy on distribution of the country's parliamentary seats back to what had been agreed upon during the formation of Malaysia in 1963.
The peninsula, with its present total number of parliamentary seats, can easily secure a two-third majority without the need of support from Sabah and Sarawak and amend the Federal Constitution, in which all the special safeguards for both Borneo states are also preserved.
This is against what had been agreed upon by all the parties involved during the formation, i.e. the distribution of parliamentary seats in the peninsula should not be more than two-third of the total number of seats.
United Pasokmomogun Kadazandusun and Murut Organisation (Upko), which uncovered this after studying in depth the Cobbold Commission report and the Malaysia Agreement, also noticed that the Election Commission (EC) is not following this policy on parliamentary seat distribution.
"Upko's study of the Cobbold Commission report and the Malaysia Agreement signed on Aug. 28, 1963, found it was carefully decided that the total number of parliamentary seats in the distribution of seats in the peninsula must not be more than two-third of the total parliamentary seats, to ensure that any attempt to amend the Federal Constitution, especially those touching on the special safeguards of the Borneo states, must have support from the Borneo states," said its Sec-Gen, Datuk Wilfred Madius Tangau.
"Thus, the peninsula was then allocated 104 seats, as opposed to 15 seats for Singapore, 16 for Sabah and 20 for Sarawak, giving it a total of 51 seats.
That 51 seats constitute 34 per cent of the total parliamentary seats of 155 seats," he explained.
"Unfortunately by 1974, the peninsula was given an additional 10 seats making it 114 seats, while there were no additional seats for Sabah and Sarawak. And with the withdrawal of Singapore from the Federation, it was now possible for the peninsula to secure two-thirds without the support of Sabah and Sarawak," he said.
Presently, peninsula has 166 seats as opposed to Sabah and Sarawak with 56 seats, he told a press conference at the party's headquarters, Tuesday.
Party Vice President Senator Datuk Maijol Mahap, Wanita Chief Dr Jaina Sintian and Komulakan Chief Ewon Benedict, were present.
Madius also raised this matter on the distribution of parliamentary seats during the recently concluded Parliamentary Select Committee on Electoral Reform public hearing here.
In addition to the anomaly, Madius said a careful analysis of the geographical sizes of the three territories showed that the peninsula with a land size of 131,598 sq km was allocated 166 seats, as opposed to Sabah (73,631 sq km) only given 25 seats and Sarawak (124,450 sq km) 31 seats, where both combined a total area of 198,081sq km but allocated a mere 56 seats.
Upko proposed to the Parliamentary Select Committee that in the present re-delineation exercise Sabah should be given an additional 10 parliamentary seats making it 35 seats and a corresponding 21 parliamentary seat increase for Sarawak, making a total of 87 seats.
Madius said with 87 seats (Sabah and Sarawak) versus 166 seats for peninsula, it will no longer be possible for Members of Parliament from the peninsula to amend the Federal Constitution without support from Sabah and Sarawak.
"In doing so we should have followed the spirit of the Cobbold Commission and the Malaysia Agreement and at the same time allay the fear of leaders of the Borneo states such as expressed by the late Tun Jugah, as reported by the Cobbold Commission when he said: "Anang Malaysia sebaku tebu, manis dipohon, tawar di hujung (Malaysia should not be like the sugar cane, sweet at the head and getting less and less sweet towards the end)," he said.
"Hence in any subsequent re-delineation exercise when it comes to the creation of new parliamentary seats, the EC must strictly follow the policy of ensuring 34 per cent of parliamentary seats are always maintained for Sabah and Sarawak," said Madius.
In addition, he said Upko also proposed that the re-delineation exercise with the objective of creating parliamentary and state constituencies must be done with the view to ensure that major native communities are represented such as the Kimaragang, the Tabilung, the Lotud, the Lundayeh, the Tatana, the Kadazan Papar and Membakut, the Orang Asli of Semenanjung, etc.
"In line with that Upko demands that the EC reinstate the State constituency of Langkon," he said, adding that the party also cautioned the EC to be truly autonomous and independent as well as to be more professional in treating State Government and community leaders' proposal, complaints as well as objections to the EC's proposal for re-delineation.
Referring to the EC's non-action to various proposals, views and objections by various parties to the 1993 re-delineation proposal by the EC, Madius said that re-delineation of electoral boundaries was the beginning of a systematic reduction of non-Muslim natives and Chinese dominated seats by the EC.
"We lost more than eight seats including the removal of Langkon and Sook," he said.
Upko also wants the EC to re-instate the 1967, 1976, 1985 and 1990 distribution of seats according to racial composition, he said, adding the setting up of the Parliamentary Select Committee is a golden opportunity to rectify past arbitrary decisions of the EC to one that is based on the spirit of the formation of Malaysia which seeks harmony, stability, progress and prosperity for all.
THE party submitted a comprehensive 101-page document to the Parliamentary Select Committee during its public hearing and presented the highlights of the proposals.
This included explaining the party's proposal for the establishment of a Royal Commission of Inquiry (RCI) to investigate and clean up the existence of "Project IC" holders in the electoral roll.
Madius said Upko's stand on this matter is consistent with Upko's position calling on the Federal Government to establish RCI to resolve issues pertaining to the "Project IC" and IMM13 holders once and for all.
"We cannot be calling for a RCI on the Project IC and not on the cleaning up of the electoral roll.
The two are actually related especially after a careful reading of the written judgement by Justice Datuk Haji Muhammad Kamil Awang in the Likas Election Petition 1999," he said.
"That is why Upko will not support any automatic registration of voters on reaching the voting age of 21 for the simple reason that questions raised on the existence of Project IC holders have not been dealt with by the authorities concerned," he said.
Once the RCI has clearly provided answers to each and every question raised, he said then Upko will be in a better position to support the proposal for automatic registration of voters, he said.
30th Nov 2011 PENAMPANG: Pertubu- han Pasok Momogun Kada- zandusun Murut Bersatu (Upko) meminta Suruhanjaya Pilihan Raya (SPR) supaya mematuhi dasar perjanjian pembentukan Ma- laysia yang memastikan 34 peratus daripada kerusi Parlimen di negara ini terus kekal untuk Sabah dan Sarawak.
Sehubungan itu, Upko mencadangkan kepada Jawa- tankuasa Pilihan Khas Parlimen (PSC) supaya dalam proses persempadanan semula pilihan raya akan datang, Sabah seharusnya diberikan tambahan 10 kerusi Parlimen menjadikan kesemuanya 35 kerusi.
Manakala bagi Sarawak pula tambahan 21 kerusi kepada 31 kerusi Parlimen sedia ada, menjadikan semua kerusi Parlimen Sabah dan Sarawak meningkat kepada 87 kerusi.
Atas prinsip itu, maka Upko meminta supaya 34 peratus daripada kerusi-kerusi Parlimen hendaklah kekal diberi- kan kepada Sabah dan Sara- wak setiap kali penambahan kerusi Parlimen.
Setiausaha Agung Upko Datuk Madius Tangau berkata Perjanjian Malaysia jelas menyatakan bahawa sebarang perubahan untuk persempadanan seluruh kawasan pilihan raya hendaklah mengambil kira bukan sahaja jumlah penduduk tetapi dari segi keluasan kawasan yang diwakili.
“Sebagai contoh, kawasan Parlimen Tuaran lebih besar dari Perlis begitu juga dengan Kinabatangan yang lebih besar daripada Pahang.
“Ini bermakna keluasan kawasan juga perlu diambil kira dalam urusan persempadanan semula kawasan pilihan raya di negara ini,” katanya pada sidang akhbar di pejabat Upko, di sini, kelmarin.
Turut hadir Naib Presiden Upko Datuk Maijol Mahap, Ketua Wanita Upko Datin Jainah Sintian dan Ketua Komulakan Upko, Ewon Benedict.
Madius berkata, mengikut analisis geografi, Semenanjung Malaysia mempunyai keluasan tanah 131, 598 kilometer persegi diperuntukkan 166 kerusi sekarang ini berbanding dengan Sabah dan Sarawak yang mempunyai keluasan keseluruhan 198,081 kilometer persegi yang hanya diperuntukkan 56 kerusi Parlimen.
“Oleh itu Upko berharap SPR akan memperbetulkan keadaan dalam urusan per- sempadanan semula kawasan Parlimen di negara ini akan datang, dengan mengambil kira kandungan Perjanjian Ma- laysia yang memberi pene- kanan kepada dasar 34 peratus kerusi Parlimen diberikan kepada Sabah dan Sarawak,” katanya.
Beliau berkata, dengan mengambil kira semangat asal Perjanjian Pembentukan Ma- laysia ia pasti sedikit seban- yak melenyapkan kerisauan dan kebimbangan pemimpin dari kedua-dua negeri di Pulau Borneo itu, khususnya kelu- huran perlembagaan negara.
Upko juga mahu SPR mengambil kira kumpulan-kumpulan etnik Anak Negeri seperti Kimaragang, Tabilung, Lotud, Lundayeh, Tatana, Kadazan Papar dan Membakut dan Orang Asli di Sememanjung Malaysia dalam proses persempadanan semula agar kumpulan etnik itu diwakili dalam Dewan Undangan Negeri dan Parlimen.
Madius berkata, selain itu Upko turut mengulangi pendi- rian bahawa SPR seharusnya mengembalikan kerusi negeri kawasan Langkon.
Katanya, persempadanan semula yang dibuat sebelum ini memperlihatkan permulaan pengurangan kerusi bumiputera bukan Islam dan juga kawasan Cina.
“Dalam hal ini, KadazanDusun Murut (KDM) kehilangan lebih lapan kerusi termasuk pemansuhan kerusi Langkon dan Sook sebelum kerusi Sook dikembalikan semula,” katanya.
Beliau berkata, Upko juga akan terus mendesak kerajaan persekutuan supaya menubuhkan Suruhanjaya Siasatan Diraja (RCI) bagi menyiasat apa juga persoalan atau keraguan mengenai kewujudan projek IC termasuk kenyataan bersumpah yang dibuat ketika petisyen pilihan raya kawasan Likas pada tahun 1999.
“Selain itu Upko juga mahu supaya peningkatan penduduk di Sabah yang mendadak diberikan perhatian dalam penubuhan RCI dan seterusnya menuntut supaya daftar pemilih dibersihkan,” katanya.
Madius berkata, Upko tidak akan menyokong pendaftaran cara automatik sebagai pilihan apabila seseorang itu mencapai umur 21 tahun ke atas alasan bahawa persoalan mengenai kewujudan projek IC belum lagi ditangani sepenuhnya oleh pihak-pihak berwajib.
Judgment by Justice Datuk Hj Muhammad Kamil bin Awang on Election Petition No K11 of 1999
28.1 The Electoral Roll
28.1.5. The petitioner, Chong Eng Leong @ Ching Eng Leong (PWS), 54 years old and a surgeon by profession, stood as a PBS candidate in this election, and lost to the 3rd respondent.
28.1.6. The primary contention was that the certification of the 1998 Electoral Roll for Likas Constituency was fraudulent as there were illegal practices in the registration and preparation of the electoral roll....
28.1.7. The electoral roll for Likas Constituency was certified by SPR in Decernber 1998. Prior to that date, there were 4,585 objections raised in respect of List A and 246 objections in List B. List A consists of names of voters in a constituency... List B consists of names of voters who had made applications for transfer of constituency....
28.1.8. The petitioner testified that there was no hearing in respect of the 4,585 objections in List A, and as such he made an appeal against the non-hearing of the objections to SPR, Kuala Lumpur, which drew a blank.
28.1.9. Of the 246 objections in List B, only 10 objectors were present at the inquiry held on 15th November 1998. As a result 19 names were deleted in List B....
28.1.10. There were 4,197 persons having dubious identity cards (Exhibit P15) and the petitioner had written a letter dated 20th April, 1999 to the JPN about them but there was no response. Later his counsel wrote a letter (Exhibit P16) dated 8th September l999 to JPN on the same subject matter and received the same treatment.
28.1.11. On another occasion he received from the public 36 cases of dubious identity cards (Exhibit P25 (1-36)) which names appeared in the electoral roll for Likas Constituency, and he lodged a report with the police, vide Kota Kinabalu Report No. 1438/1999. It appeared that no investigation had been carried out on the report.
28.1.12. The petitioner�s evidence found corroboration in the testimony of the Pegawai Pendaftar Likas, (Registering Officer Likas), Ewol B Muji @ Edward Ewol Muji (PW10).
28.1.13. As a Registering Officer, he registered electors (voters) for the State Election, and he received objections from voters. He testified that he received 4,585 objections to List A and 246 objections to List B, Regarding the objections to List A, there was no public inquiry held. The reason being that there was a strict instruction by SPR that no objection to List A could be entertained except in cases of death or disqualification. The instructions were contained in SPR�s letters dated 7th and 8th October 1998 (Exhibits P21 and P22) addressed to Pegawai Pilihanraya Negeri Sabah and all Pegawai Pendaftar. A letter ref. SPR(S)273/(42) dated 7th October 1998 (Exhibit P22) addressed to Pegawai Pilihanraya Negeri Sabah, which stated, inter alia:-
�2. Sukacita dimaklumkan bahawa Suruhanjaya Pilihanraya telah memutuskan bantahan terhadap Senarai �A� 1997 tidak akan diterima melainkan atas alasan kematian atau hilang kelayakan. Ini bermakna bantahan kepada Senarai �A� 1997 yang diterima atas alasan-alasan selain yang dinyatakan tersebut dari mana-mana pembantah ditolak oleh Pegawai Pendaftar� ....
28.1.14. The Pegawai Pilihan-raya Negeri Sabah in its letter ref. PPN(O) 1/6(66) dated 8th October 1998 (Exhibit P21) conveyed the decision of SPR to all Pegawai Pendaftar (Registering Officers) including PW10, as follows:-
� � dimaklumkan bahawa Suruhanjaya Pilihannya Malaysia telah memutuskan bahawa bantahan Senarai A Daftar Permilih 1997 yang telah disahkan pada 31 Disember 1997 tidak boleh diterima kecuali atas alasan kematian atau hilang kelayakan.�
28.1.15. As a result, the petitioner and a few others made applications to PWI0 appealing against the decision not to hold a public inquiry, whereby the applications were forwarded by PW10 to SPR (HQ) Kuala Lumpur (Exhibit P49). There was no response.
28.1.16. PW10 further testified that he did not verify the identity cards during the registration of voters. It was not a practice that he had to verify identity cards nor the citizenship documents of those people who wish to register in the electoral roll. In other words, PW10 just followed orders of his superiors not to hold a public inquiry to an objection except in cases of death or disqualification. Superior orders or state authority are no defence to an action otherwise illegal....
28.1.18. The SPR has to face the truth. The 4,585 objections in List A were cases of persons having dubious identity cards or persons who had been convicted of having fake identity cards. The people who raised the objections were exercising their rights as citizens, and it is unthinkable that the SPR should shut-off the objections in List A without a public inquiry. It is a constitutional wrong for SPR to have rejected the objections outright. More importantly, it is wrong for SPR to allow non-citizens and disqualified persons to be on the electoral roll as voters. It appears that the certification of the electoral roll for the 1998 Likas Constituency by SPR is ultra vires the Constitution and is in fact illegal.
28.2 Identity Card Bot Proof of Citizenship
28.2.1 The identity card is not proof of citizenship. It appears that the SPR takes the identity card as proof of citizenship and a person who produces a blue identity card will be registered in the electoral roll. PW10 (Pegawai Pendaftar Likas) testified at the trial that it was the normal practice that the Pegawai Pendaftar accepts for registration on the electoral roll persons who have blue identity cards and also those with temporary identity cards, that is form JPN 1/9 and form JPN 1/ll. This has been much abused. For example, INDAH MAHIYA BTE ABDULLAH had lost her blue identity card and reported the loss to the police, vide Report No, 2429/98. Based on the police report she was issued with a temporary identity card, form JPN 1/9. It seemed that based on the same police report No. 2429/98; seven other people were issued with form JPN 1/9 (i.e.temporary identity card)�
28.2.3 In another election case, No. K 1/99 before this court, the petitioner had notified the SPR that there were cases of the use of duplicate identity card numbers in the registration of names in an electoral roll [5 cases given]
28.2.5 The Tawau Court had convicted the following persons in 1996 for the offence of possession of fake identity cards:- (3 names given)...
But their names were not deleted and were still in the 1998 certified electoral roll for Likes Constituency.
28.2.6. How easily many of the immigrants, Filipinos and Indonesians, had obtained citizenships in this maner, i.e. through their applications for identity cards, was well illustrated by the testimony of ASAINAR B IBRAHIM @ HASSAN, (PWll), a former District Chief for Bandar Sandakan from 1982 - 1985. A system which was established before Malaysia Day 1953 where an appointment of District Chief, a parallel appointment (a political appointment), vis-a-vis the District Officer was appointed by the government PW11 was a Pegawai Perbadanan Kemajuan Sabah, later Ahli Lembaga Bandar Sandakan and Ketua Daerah Sandakan in 1985.
28.2.7 He testified that there were two categories of applicants for the blue identity cards.
Those persons under 12 years old and who have birth certificates have no difficulty in obtaining blue identity cards. Those above 12 years old and who have no birth certificates may obtain identity cards by using form HMR 10 (JPN). This form is filled up by the parents and submitted to the District Chief.... When PW11 was first appointed as the District Chief, he had no idea of what was going on and he recommended, without question, the 1,000 and more of such applications that he received from the Native Court and, on his recommendation, they were issued with blue identity cards. He said that �the main factor causing loss to Berjaya Government in 1985 to PBS was because Berjaya leaders sold the rights of Sabahans to foreigners, totaling 40,000 by making them blue identity cards, thus they became citizens.� He was a Berjaya Party candidate in Sungei Sibuga Constituency in the 1986 State Election but lost.
In 1998 it was alleged that he was involved in a project to process and distribute blue identity cards to illegal immigrants in Sabah, the Filipinos and the Indonesians. On 9th July 1998 he was detained under the ISA for 60 days and thereafter he was placed under restricted residence for 2 years....
PW13 Mutalib Md Daud, is a former Executive Secretary for Silam Umno Division and is still a member of Umno. Mutalib was born in Kg. Lanai, Kedah and initially held a Malaya identity card. In 1970 he migrated to Sabah under the �Untuk kemajuan Ba� programme and settled down at a village name Kg. Burong, Lahad Datu where he found that a large number of illegal immigrants from Indonesia and Philippines had settled down.
He observed that there were numerous immigrants who had obtained blue identity cards in a relatively short time, 3 months or 3 years, while it took him 23 years to change his Malayan identity card into an identity card of Sabah through the normal process. He testified that of the 43,000 new Umno members recruited at the time, only 14,000 had genuine blue identity cards, the rest he did not know how they got their blue identity cards.
From 21st October 1996 there was an exercise to recruit Umno members for 3 days which attracted 10,211 new Umno members. They applied for identity cards, but only 180 applications for identity cards from these members were approved by Jabatan Pendaftaran Negara, and the rest were rejected.
The instances of non-citizens and phantom voters in the electoral roll as disclosed at their trial may well be the tip of the iceberg....
The failure of SPR to maintain an electoral roll in accordance with the law makes the electoral roll illegal. Such is the case in the 1998 electoral roll for Likas Constituency (N13). I would in the circumstances, uphold the petitioner�s petition that the 1998 electoral roll for Likas Constituency (N13) was illegal.
Radin Malleh (PW14), a Member of Parliament and the Secretary General of PBS, holds a LLB degree from Kent University, and had served the police force for 20 years, holding the rank of DSP when he left the force in 1990 to join politics. As the Secretary General of PBS he received a lot of information and material of public interest from members of the public, including documents of pengundi luar or phantom voters.
In early March 1999 he received via Pos Laju a box containing lists of names and dubious identity card numbers of 40,000 people and he had forwarded them to the police, vide report No. 1061/99 dated 10th March 1999 (Exhibit P60). 31,845 names were found in the 1998 electoral roll, of which 2,975 names were registered in the Likas electoral roll.
He lodged a report with the police, re: pengundi luar three times but unfortunately no action was taken. In particular, 12 fake identity cards were sent to the police for investigation, vide report KK 1794/96 dated 18th January 1996, and 10 names appeared in the 1998 electoral roll of Likas Constituency, N13....
Between 1996-1998 several people were arrested under ISA for involvement in the issuing of fake identity cards: Mohd Agjan b Ariff, Jabar Khan, Bandi Pilo and Shamsul Alang - all from Sabah Umno; and Mohd Nasir Sunjit, Asbi b Abdul Karim, Jamah Ariffin, Asli bin Ariffin and Kee Dzulkifli b Kee Abdul Jalil - all were officers in JPN Sabah. They were involved in the Ops Gembeling.
This operation called Ops Gembeling whereby the JPN officers were asked to collect the names of the illegal immigrants, and with the aid of some political leaders, they were given the blue identity cards. PW14 had written to JPN in respect of these illegal immigrants who were given blue identity cards (Exhibit P54) and he also wrote to the Ketua Pengarah Pendaftaran Negara Malaysia on 15th December 1998 before the electoral rolls were certified by SPR on 31st December 1998. There was no response.
The target of this operation was the Malays of Bugis origin, and these people formed an association known as Persatuan Kebajikan Bugis Sabah. For example, Pirsing Siraji, 22 years old, was in possession of identity card No. H0481706, and his name was found in the 1998 electoral roll (but with the identity card No. H04817096) for Likas Constituency. It is noted that the Sabah identity card number has 7 digits, Pirsing had an identity card number with 8 digits, and he was convicted by the court on 28th September 1992.
On 15th December 1998 when PW14 wrote to the JPN for verification of the identity cards, there was no response. On 7th October 1999 Hamid b Hassan wrote an open letter (Exhibit P66) to the Deputy Prime Minister - there was no response.
As a Member of Parliament, PW14 raised this issue in Parliament, in a letter addressed to Setiausaha Dewan Rakyat (Exhibit P65) and it was rejected under Rule 23(1)(f) as it was a secret matter which the government could not disclose....
PW14 referred to a letter (ID14) written by the Chief Information Officer Umno (Datuk Hj Karim bin Abd Ghani) PW17, which was sent to 31 State Constituencies .... PW17 in his testimony stated that he did not sign the letter (ID14) and he suggested that the signature was forged. This letter was distributed to all Umno branches in Sabah, and in the trial of three persons (Exhibit P62) in Tawau High Court the Judge had accepted the evidence of the accused that they were just following the directions of a superior as contained in ID14. If ID14 carries a forged signature, therefore it is a forged document. This is a serious allegation, but why is it that PW17 did not publicly disown it as soon as he knew that ID14 had been sent and received by all Umno branches in Sabah? Why didn�t PW17 or Umno refute this at the trial in the High Court at Tawau? ... But there is no evidence of this alleged forgery (ID14) and it was never reported to the police. Umno Chief Information Officer thought it fit to ignore and allow ID14 to be made use of extensively, including in court proceedings, without taking any action or step to deny or stop it. As a matter of fact, PW17 had made no mention of ID14 at all in his affidavit in Petition No. K 7/99. The veracity of PW17�s evidence here is highly questionable.
Corrupt Practices and Bribery
The allegations of corrupt practices or bribery made by the petitioner in the petition were too general in nature. PW16 testified that days before the election day, many candidates from various political parties including the 3rd respondent and their supporters, visited the constituency. Some brought and distributed to the people food stuff such as 25 kg rice each, milk, sugar, cooking oil and flour; some were supplied building materials such as zinc roofs, planks, boards and water tanks; the more ambitious, built roads, canals, boats and perahus. Some distributed money. The display of generous concern and care is a very welcome thing to the voters although it happens at a five-yearly interval, as a prelude to each election. It is fast becoming a Malaysian way of life, a tradition as it were, that prior to an election, contesting candidates will visit their constituency with all types of gifts or presents in their endeavour to win or influence the voters to their side. Whatever it is, there is not sufficient evidence before the court to support the allegation of corrupt practices by the BN candidates. There was no specific charge that could be brought against the 3rd respondent in the case. Corrupt practice is quasi criminal in nature and the petitioner has to prove beyond reasonable doubt the offence of corrupt practice. In the case of WONG SING NANG v TIONG THAI KING (1996) 4 MLJ 261, the court held that there was no direct evidence that the voters in the constituency were in any way influenced by the gift. Therefore the petitioner had failed to prove beyond reasonable doubt the offence of bribery or corrupt practices.
�The gist of the tort of conspiracy is not the conspiratorial agreement alone, but that agreement plus the overt act causing damage . . . . The tort of conspiracy, however, is complete only if the agreement is carried into effect so as to damage the plaintiff.� per Salmon J. in MARRINAN v VIBARI (1962). 1 All ER p. 871.
HALSBURY�s LAWS OF ENGLAND, 4th Edition Vo. 45 p. 721 states that:-
�In order to make out a case of conspiracy the plaintiff must establish -
1. an agreement between two or more persons;
2. an agreement for the purpose of injuring the plaintiff; and
3. that acts done in execution of that agreement resulted in damage to the plaintiff.�
Warrington LJ in DAVIES v THOMAS (1920) 2 Ch. 189 said:-
��That is to say, to be a conspiracy - that is an unlawful conspiracy, one which gives rise to either an indictment or a right of action - it must have an unlawful object, that is, the act which it is intended to bring about must be in itself unlawful, or, if not in itself unlawful, then it must be brought about by unlawful means.�
Lord Dunedin in SORRELL v SMITH & ORS (1925) AC 700 held that an act that is legal in itself will not be made illegal because the motive of the act may be bad.
I can find no evidence that there was a conspiracy between the Government and the Barisan Nasional (BN) at the highest level as suggested by Mr Maringking. Not an iota of evidence to show the existence of an agreement between the Prime Minister or any other Minister with the Saban BN regarding the registration of disqualified persons or non-citizens in the electoral roll. The semblance of an agreement in the Operation Gembeling or the �Mahathir�s Project� where blue identity cards were sold to these people at RM300 a piece, evidently has no nexus to connect these to the fake identity cards sold. It is a mere gimmick to lend legitimacy to these operations. It is incredible to say that the government is involved in a conspiracy to register phantom voters especially as no such agreement existed between the government and the BN. It is true that too many politicians and public officials have exercised power and responsibility not as a trust for public good but as an opportunity for private gains.
It has been brought to my attention that the SPR has come up wtih the revised 1999 electoral roll for Sabah in which more than 19,900 names have been dropped there from, presumably the names are those who have died and/or have lost their eligibility to vote as citizens.
I seize this opportunity to record a few observations that a worrisome trend or culture, not borne out of Malaysian culture, has evolved where public institutions or government departments do not seem to care to respond to letter or reports received from the public. Such letters or reports seemed simply ignored, invariably no response or acknowledgement or receipt whatsoever has been made, for example, from personal knowledge in a few cases; where my son had applied for a temporary work permit which was refused, and I wrote an appeal to the authority concerned; and in another case, my daughter had applied for a scholarship for a one-year post graduate course. In both cases there was no acknowledgement despite reminders, although earlier on, personal assurances of favourable consideration had been given. Rgrettably this is the very antithesis to good governance in as much as a threat to the government�s effort to foster good relationship and integration between East and West Malaysia.
It has been said that a government is a trustee of the people, and being elected by the people, it owes a higher responsibility to the people. The government must act honestly and responsibly.
Directive Over the Phone
The only guide to a man is his conscience, the only shield to his memory is the rectitude and the sincerity of his action. In my view, it is an insult to one�s intelligence to be given a directive over the phone that these petitions should be struck off without a hearing, and above all, it is with a prescient conscience that I heard these petitions. God has given me the strength and fortitude, as a lesser mortal, to act without fear or favour, for fear of a breach of oath of office and sacrifice justice, and above all to truly act as a Judge and not a �yes-man�.
In conclusion, I would declare that the 1998 Electoral Roll for Likas Constituency (N13) is illegal, and that the election held in March 1999 for Likas Constituency is null and void. I will inform the SPR of this decision in due course.
In Petition No. K.5 of 1999, costs to the petitioner against the 2nd respondent, and in Petition No. K11 of 1999 costs to the petitioner against the 1st and 2nd respondents. In both cases, costs are to be taxed unless agreed.