Pensiangan a ‘worrisome precedent’, says Kitingan

Joe Fernandez | Mar 14, 09 1:03pm

PKR (Parti Keadilan Rakyat) vice-president Dr Jeffrey Gimpoi Kitingan fears that yesterday’s Federal Court ruling, averting a possible by-election in the disputed Pensiangan parliamentary seat, would set a “worrisome precedent for the future”.

“This (the Federal Court ruling) would come back to haunt us all,” said Dr Jeffrey, a younger brother of Sabah Deputy Chief Minister Joseph Pairin Kitingan.

“This (rejection of candidates) has happened many times before but so far perhaps no one has gone to court over the matter. We cannot accept the theory that the early bird catches the worm when it comes to being accepted as a candidate.”

“Nobody expected this verdict, even the state BN which has been camped out in the seat since Sept 8, the day of the Election Court ruling, making all sorts of promises. Now, they would all probably disappear just as quickly from the scene and the people would be forgotten as usual.”

There had been very high hopes, according to Dr Jeffrey, that the Federal Court would uphold the Election Court ruling which stripped Joseph Kurup of the seat which he “won unopposed under controversial circumstances”.
The nominations papers of PKR candidate, Danny Anthony Andipai, and independent Saineh bin Usau, were rejected by Returning Officer (RO) Bubudan OT Majalu during objection time on the grounds that they were not submitted within the regulation time of 9 am and 10 am.

Earlier, the Deputy Director of the Sabah Election Commission had ruled that the nomination papers of candidates who arrived at the centre by 10 am be accepted.

Three candidates opposing Kurup rejected

Andipai filed an election petition on April 9 last year seeking a declaration that the election of Kurup be declared void under section 32(b) of the Election Offences Act 1954.

“One aspect which the Federal Court did not touch on was the fact that the nomination paper of candidate number 12, PKR’s Paul Gitang for Sook, was not rejected by the RO although it was submitted after that of Andipai (number 10) and Saineh (number 11),” said Dr Jeffrey.

“The fact remains that of the 12 candidates that day, four for the parliamentary seat of Pensiangan, and eight for the state seat of Sook, only the three candidates opposing Kurup were rejected.”

Andipai’s counsel Ansari Abdulah, also PKR Sabah deputy chief along with Dr Jeffrey, concurs with the latter on the non-rejection of the 12th candidate, a point not touched on by the Federal Court when it ruled that the RO was right to reject Andipai’s nomination paper since it was not submitted within the regulation time.

Also not taken into consideration, pointed out Dr Jeffrey, was the fact that despite the large number of candidates, the Election Commission opened one counter only and provided only one hour i.e. 9 am to 10 am for candidates to lodge their papers.

‘Only one counter opened for one hour’

“This is contrary to the democratic practice of holding free and fair elections,” said Dr Jeffrey.

Ansari had submitted that the RO had only dealt with three candidates by 9.40am and that it was humanly impossible for the remaining nine candidates to be attended to in the 20 minutes left by 10am.

Ansari’s submission, noted Dr Jeffrey, had prompted Election Court Judge David Wong to remark: “What if 20 citizens turned up on nomination day? Are we to say that only those who are able to submit their nomination papers before 10am are entitled to exercise their constitutional rights to contest in the election?”

Dr Jeffrey conceded that as he does not have the benefit of any formal legal training, he could not comment on the various authorities cited by the Federal Court in its verdict on Pensiangan.

“The only question that comes to my mind is whether the circumstances cited in the authorities were similar as in the case of Pensiangan including the fact that only one counter was open for one hour on nomination day to deal with a large number of candidates,” said Dr Jeffrey.

Other aspects in the Federal Court ruling that trouble him are on the need for the strict observation of the election laws as if they had been codified, the fact that the onus is not on the RO to ensure that sufficient time be given to ensure that all nomination papers can be submitted within the regulation time but only the proviso that the RO is not obliged to accept, in fact must reject, any nomination paper submitted after regulation time.

Looking to the EC for answers

The court remained silent on the case of candidates who are at the nomination centre within the regulation time.

“Our election laws are not codified but leaves the courts room for interpretation on not only the letter but the spirit of the law,” said Dr Jeffrey who has experience in legislative work. “I don’t think that it is the intent of the legislators to prevent a free and fair election. So, harping on the written law, without considering the spirit behind such legislation, can be a denial of justice to all.”

“Legislation is as much a process of the courts as of the law makers. While Parliament and the state assemblies invoke the letter of the law, the courts can in fact create new legislation via their rulings by interpreting the letter of these laws creatively by invoking the spirit of these laws.”

With the legal battle being so much water under the bridge, the PKR is looking to the Election Commission for answers and counting on support from NGOs like Mafrel (Malaysians for Free and Fair Elections), an elections watchdog.

“The EC must ensure that candidates who are at a nomination centre within the regulation time must have the right not to have their nomination papers rejected on the grounds that they were submitted outside the regulation time,” said Dr Jeffrey. “The most important criteria here is whether the candidate was at the centre within the regulation time.”

Generally, PKR leaders draw an example from banks which close their doors to the public at 4pm on working weekdays but “continue to serve all customers who are within the premises by 4pm.”

“So, often the bank staff have to work until 5pm or beyond to serve all the customers who were still within the premises,” pointed out Dr Jeffrey.

Kurup punched in the face on Feb 24

“If the EC had followed this common sense rule from the banking industry and elsewhere, a rule of thumb, Andipai would not have his nomination papers rejected since he was already at the nomination centre at 9.25 am when he was given slip number 10 to be served. He waited his turn only to be rejected during objection time after having been accepted at 10.25am i.e. 25 minutes after the regulation time.”

If the EC cannot ensure that the nomination papers of a candidate will not be rejected during objection time on the grounds that they were “submitted after regulation time although the candidate was at the centre within the same regulation time,” pleaded Dr Jeffrey, it (the EC) should ensure that the regulation hours and the number of counters available are sufficient for the submission of the nomination papers of all intending candidates.

The last word comes from Andipai who challenged Kurup to vacate the Pensiangan seat “if he was a gentleman” and allow a by-election in the seat, failing which he vowed to “thrash him the next time if he dared to re-contest the seat at the next general election”. He was incensed by Kurup’s remarks hailing the Federal Court verdict as “upholding the rule of law”.

Even if Kurup vacates the seat, which he would not, he would be barred by law from standing in any Parliamentary or state seat for five years.

Kurup had to flee the Pensiangan area for dear life on Feb 24 last year after a large angry local mob came after him, moments after Andipai’s nomination papers were rejected and he (Kurup) was declared as having won the seat unopposed. Kurup could not flee before he was punched in the face by an irate villager.

One complaint against Kurup is that he is not a local or a Murut who dominate the seat. Former Pensiangan MP, Bernard S Maraat, was denied the chance to stand in Pensiangan last March 8 when Kurup decided that he wanted the seat for himself.

He subsequently left PBRS – “after Kurup criticised his performance as Pensiangan MP in the media” – and joined PBS. He has since been appointed the chairman of the Sandakan Sawit Palm Oil Industrial Cluster.




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