SPR or Election Commission electoral roll ending 31st of March 2013 (first quarter) was gazette on the 11th April 2013, and that was 11 days after the closing date of the quarter, and was used for the 13th General Election on 5th May, 2013.
The dissolution of Parliament was on 3rd April 2013. The election was held on the 5th May 2013, and the early voting on 30th April 2013. The Election Commission Chairman Tan Sri Abdul Aziz Mohd Yusof in his announcement of the 13th General Election on 10th April 2013 said that the electoral roll to be used shall be gazette on 11th April 2013 comprising 13,268,002 Malaysian to vote of which 12,992,661 ordinary voters, 275,341 early voters and 2,954 absentee voters from overseas.
It appeared that the gazette of electoral roll had not followed in accordance to the electoral roll gazette procedures before it was finalized as a requirement under Section 9A of the Election Act 1958.
In June 15, 2002, the Legislature passed an amendment to the Election Act 1958 with the inclusion of section 9A that deems an electoral roll that has been certified with the notice of the certification published in the Gazette to be final and binding and shall not be questioned or appealed against in, or reviewed, quashed or set aside by any court.
The controversial amendment, upon implementation, was said to have diminished the role of the Judiciary in addressing the irregularities in the electoral roll and the party’s and voters right to a legal redress.
The newly elected Luyang State Assemblyman Hiew King Cheu said if the documents or records to be gazette were made or obtained through fraud or misrepresentation, then it would be unlawful for the AG’s chambers to approve the publications and use of such documents.
“Certified or re-certified electoral roll shall be deemed to be final”
9A. After an electoral roll has been certified or re-certified, as the case may be, and notice of the certification or re-certification has been published in the gazette as prescribed by regulations made under this Act, the electoral roll shall be deemed to be final, binding and shall not be questioned or appealed against, or reviewed, quashed or set aside by, any court.
Here we can see two distinct ‘entities’. One is the electoral roll and the other is the gazette.
The electoral roll is not law. Its survival and effectiveness depends on the gazette. If the roll is not gazette then it is useless or if the gazette is ruled invalid, the roll is dead.
A gazette is also not law.
It is just a public journal of the government. Where our government is concerned, publishing information in a gazette is a legal necessity by which official documents come into force and enter the public domain.
The one that is being ‘protected’ by Section 9A is the electoral roll only, but not the gazette.
So logically the people should not disturb the roll but to go after the gazette instead.
A gazette is only lawful if the documents to be published are made in accordance with the law. Since the electoral roll used is not in accordance to the procedure, it is therefore unlawful and “null and void”.
Hiew said by looking at the facts that the 11th April 2013 gazette electoral roll which is used in the 13th general election apparently did not follow the statutory requirement and procedures of establishing it as a gazette document.
The question now stands whether the 11th April 2013 electoral is a true gazette remains to be answerable by the SPR. This has raised a lot of doubts on it validity, and this may cause the result of the GE13 to be null and void. We are expecting the SPR to give a full explanation on this matter.