GAZETTING PROCESS SHOULD BE CHALLENGED!

IN COURT ... Independent candidate for Api Api Marcel Jude M. S. Joseph, a leading lawyer in Borneo on public litigation issues, is in Court on the Sabah electoral rolls.

By : JOE FERNANDEZ

HE WANTS the Election Commission (EC) to "undertake a thorough examination of the electoral rolls of the State of Sabah particularly the electoral rolls for N15 Api Api".

Marcel said in his application on Thurs for judicial review --  in fact an application for leave to apply for judicial review and not as reported in the local media -- that he was "shocked to read in the local newspapers on 1 May, 2013 that, according to the EC Chairman, there were 60, 673 dubious entries in the electoral rolls of Sabah".

The Court has set June 10 this year, i.e. more than a month after the 13th GE on May 5, for the hearing of his Application.

Among others, he is seeking:

(1) an order of mandamus (to compel) to require the respondent to undertake a thorough and extensive examination of the electoral rolls of Sabah particularly the electoral rolls of N15 Api-Api where the applicant is standing as a candidate; N16 Luyang and P172 Kota Kinabalu where the applicant is exercising his constitutional rights to vote; to identify the 60,673 dubious entries in the electoral rolls and thereafter to publish all the names, addresses, gender and other particulars of the said dubious entries for examination by the members of the public in Sabah and Malaysia for a reasonable period of time for the purpose of clarification and drawing objection;

(2) an order of mandamus to direct the respondent to remove all of the said 60,673 dubious entries in the electoral rolls, in particular the electoral rolls for Api-Api, Luyang and Kota Kinabalu, which cannot be verified or substantiated;

(3) an order of mandamus to require the respondent to remove the 60,673 dubious entries or any part thereof insofar as they are found in the electoral rolls of the state constituencies of Api-Api, Luyang and the parliamentary constituency of Kota Kinabalu;

(4) an order of certiorari to quash the order of the respondent to issue the Writ of Election and the Notice of Election in respect of the state constituencies of Api-Api, Luyang and the parliamentary constituency of Kota Kinabalu by reason of 60,673 dubious entries or any part thereof insofar as they are found in the electoral rolls of the state constituencies of Api-Api, Luyang and the Parliamentary constituency of Kota Kinabalu;

(5) an order of prohibition against the respondent in the issuance of the Writ of Election and the Notice of Election in respect of the state constituencies of Api-Api, Luyang and the parliamentary constituency of Kota Kinabalu until the removal of 60,673 dubious entries or any part thereof insofar as they are found in the electoral rolls of the state constituencies of Api-Api, Luyang and the Parliamentary constituency of Kota Kinabalu;

(6) in the event the respondent proceeds with the state election in Api-Api on May 5, 2013 and the applicant does not emerge as the winner of the said election, the applicant prays for an order of certiorari to quash and set aside the election result and an order of prohibition against the respondent to conduct any such election until the respondent has removed the 60,373 dubious names or any part thereof from the electoral roll of Api Api;

(7) a refund of the sum of RM8,000 paid by him to the respondent to participate as a candidate in Api Api;

(8) damages for negligence of the respondent in issuing the Writ of Election and the Notice of Election without the removal of 60,673 dubious entries, or the disclosure by the respondent of 60,673 dubious entries to him prior to his registration as a candidate in the constituency of Api Api;

(9) damages for misrepresentation and failure of the respondent to issue the Writ of Election and the Notice of Election for the state constituencies of Api-Api, Luyang and the parliamentary constituency of Kota Kinabalu without the removal of 60,673 dubious entries or the disclosure by the Respondent of 60,673 dubious entries prior to the applicant's registration as a candidate in the constituency of Api Api; and

(10) damages for fraud, costs and any other relief deemed fit by the court

The chances are that Marcel's application will get knocked out on a technicality, the only weapon employed by the imbeciles in the Attorney General's Chambers and often in cahoots with the Court.

The electoral rolls and the gazetting of the electoral rolls should be considered as two separate issues.

As the law now stands, the electoral rolls once gazetted cannot be challenged.

However, we can for starters challenge the gazetting of tainted rolls.

The gazetting of such rolls can be set aside as null and void, illegal and unconstitutional.

It cannot be the intention of Parliament to allow the gazetting of tainted electoral rolls.

Once the gazette is set aside, the election writ is null and void and has been null and void from the beginning because of the null and void gazetting.

Again, a gazette or gazetting, in my considered opinion, is not law but merely publication of a government announcement or information.

So a gazette and/or the gazetting process can be easily challenged.

The Election Commission (EC) should only gazette the electoral rolls after drawing it up properly, not do it in a cincai manner.

For example, spot checks can be done to ascertain that those who register as voters are genuine. It cannot wash its hands on this matter and point fingers at the National Registration Department.

The EC should also accept complaints from citizens on illegal immigrants or phantom voters on the electoral rolls in their neighbourhood and act on them.

The EC can't behave as if it's deaf, dumb & blind. In that case, the EC is complicit in an illegality from the beginning. So, putting such rolls on public display is an eyewash.

However, we are not talking about the electoral rolls for the moment, just the gazetting and gazetting process.

On a separate but related matter, the law that states that the electoral rolls once gazetted cannot be challenged in Court is patently unconstitutional because it violates the fundamental principle of Rule of Law (Law Rules, not Man) by trying to project that Rule by Law (Man Rules through Law) as per the Mahathir School of Thought and Rule of Law (Law Rules, not Man) are one and the same thing.

There's no such thing as there being no remedy in law.

The Bar Council should not sleep on the matter.