PART VII

ELECTION PETITIONS

33. (1) Every election petition shall be tried by the Chief Justice or by a Judge of any High Court nominated by the Chief Justice for the purpose:

Provided that the Chief Justice shall not nominate a Judge of a High Court of which he is not Chief Justice without consulting the Chief Justice of that High Court.

(2) Witnesses shall be subpoenaed and sworn in the same manner as nearly as circumstances admit as in a trial by the High Court in the exercise of its original civil jurisdiction and shall be subject to the same penalties for the giving of false evidence.

(3) On the trial of an election petition under this Act the Election Judge may, by order under his hand, compel the attendance of any person as a witness who appears to him to have been concerned in the election to which the petition refers, and any person refusing to obey such order shall be guilty of contempt of court. The Election Judge may examine any witness so compelled to attend or any person in Court, although such witness is not called and examined by any party to the petition. After the examination of a witness as aforesaid by the Election Judge, such witness may be cross-examined by or on behalf of the petitioner and respondent, or either of them.

(4) Unless otherwise ordered by the Chief Justice, all interlocutory matters in connection with an election petition may be dealt with and decided by any Judge of the High Court whose decision shall be final.

Who may present petition

34. An election petition may be presented to the High present Court by any one or more of the following persons:

(a) some person who voted or had a right to vote at the election to which the petition relates;

(b) some person claiming to have had a right to be returned or elected at such election; or

(c)some person alleging himself to have been a candidate at such election.

Relief which may be claimed

35. All or any of the following reliefs to which the petitioner may be entitled may be claimed in an election petition:

(a) a declaration that the election is void;

(b) a declaration that the person was not duly elected or ought not to have been returned;

(c) (Deleted by Act A1177)

(d) where the seat is claimed for an unsuccessful candidate on the ground that he had a majority of lawful votes, a scrutiny.

Time for completion of trial of election petition

35A. The trial of every election petition shall be completed not later than six months from the date of the presentation of the election petition.

Determination of Election Judge

36. (1) At the conclusion of the trial of an election petition, the Election Judge shall -

(a) determine whether the candidate whose return or election is complained of was duly returned or elected or whether the election was void,

(b) pronounce such determination in open court.

(2) The Election Judge shall within fourteen days of making his determination under subsection (1) certify his determination-

(a) to the Election Commission in the case of an election of a person to be a member of the Dewan Rakyat, a jurisdiction of the Federal Government or of any other election that the Election Commissioin may be authorized to conduct; or

(b) in the case of any other election, to the State Authority.

Appeal

36A.(1) The petitioner or a candidate whose return or election is complained of may appeal against the determination of an Election Judge to the Federal Court.

(2) Every appeal under this section shall be presented within fourteen days form the date of the determination of the Election Judge under section 36 and such appeal shall be presented in accordance with the rules of court applicable to appeals to the Federal Court.

(3) The Registrar of the Federal Court shall, within fourteen days from the date of the decision of the Federal Court certify such decision -

(a) to the Election Commission in the case of an election of a person to be a member of the Dewan Rakyat, a Legislative Assembly, a local authority under the jurisdiction of the Federal Government or of any other election that the Election Commission may be authorized to conduct; or

(b) in the case of any other election, to the State Authority.

Time for completion of hearing of appeal

36B. Notwithstanding any other law to the contrary, an appeal against the determination of an Election Judge shall be heard and decided upon by the Federal Court wihtin six months from the date of presentation of the appeal.

Effect of decision of Election Judge or Federal Court

36C. At the end of the period specified in subsection 36A(2), if there is no appeal to the Federal Court, or upon the certificate being given under subsection 36A(3), if there is an appeal to the Federal Court, the determination of the Election Judge or the decision of the Federal Court, as the case may be, shall be final, and the return or election shall be confirmed or the election shall be void and in such case within thirty days from the end of such period or from the date the certificate is given, the Election Commission or the State Authority, as the case may be, shall give notice of election in the constituency or electoral ward concerned in accordance with the certificate given under subsection 36A(2) or (3).

Report of Judge or Registrar as to corrupt or illegal practice

37. (1) At the conclusion of the trial of an election petition or of the hearing of an appeal against the determination of an the Election Judge, the Election Judge or the Registrar of the Federal Court, as the case may be, shall also report in writing-

(a) to the Election Commission, in the case of an p election of a person to be a member of the Dewan Rakyat, a Legislative Assembly, the city council of the federal capital or of any other election that the Election Commission may be authorized to conduct; or

(b) in the case of any other election, to the State Authority-

(i) whether any corrupt or illegal practice has or has not been proved to have been committed by or with the knowledge and consent of any candidate at the election, or by his agent, and the nature of such corrupt or illegal practice, if any; and

(ii) the names and descriptions of all person, if any, who have been proved at the trial to have been guilty of any corrupt or illegal practice.

(2) Before any person, not being a party to an election petition nor a candidate on behalf of whom the seat is claimed by an election petition, is reported by an Election Judge or the Registrar of the Federal Court under this section, the Election Judge or the Registrar of the Federal Courtshall give such person an opportunity of being heard and of giving and calling evidence to show why he should not be so reported. giving and calling evidence to show why he should not be so reported.

(3) When an Election Judge or the Registrar of the Federal Court reports that a corrupt or illegal practice has been committed by any person, that person shall be subject to the same incapacities as if at the date of the said report he had been convicted of that practice and a person shall be subject to the same incapacities if he was a candidate at the election and the Election Judge or the Registrar of the Federal Court reports that such corrupt or illegal practice was committed with his knowledge and consent or by his agent.

(4) The Election Commission or the State Authority (as the case may be) shall cause a copy of such report to be published in the Gazette, and it shall be the duty of every registering officer forthwith to peruse the report and forthwith to delete from the register or list of electors assigned to him the name of every person appearing from the report to be incapable of voting at an election.

38. (1) Every election petition shall be presented within twenty-one days of the date of publication of the result of the election in the Gazette:

Provided that-

(a) an election petition questioning the return or the election upon the ground of a corrupt practice and specifically alleging a payment of money or other act to have been made or done since the date aforesaid by the person whose election is questioned or by an agent of the person or with the privity of the person or his election agent in pursuance or in furtherance of such corrupt practice may, so far as respects such corrupt practice, be presented at any time within twenty-eight days after the date of such payment or act;

(b) an election petition questioning the return or the election upon an allegation of an illegal practice may, so far as respects such illegal practice, be presented within the time following:

(i) at any time before the expiration of fourteen days immediately after the date of the publication in the Gazette of the notice required by section 24 as to the election expenses of the person whose election is questioned;

(ii) if the election petition specifically alleges a payment of money or other act to have been made or done since the said date by the person whose election is questioned or by an agent of the perso or with the privity of the person or of his election agent in pursuance or in furtherance of the illegal practice alleged in the petition, the petition may be presented at anv time within twenty- eight days immediately after the date of such payment or other act.

(2) An election petition presented in due time may, for the purpose of questioning the return or the election upon an allegation of a corrupt or illegal practice, be amended with the leave of a Judge of the High Court within the time within which an election petition questioning the return or the election upon that ground may be presented.

(3) For the purposes of this section, where there is an authorized excuse for failing to make and transmit the return and statements respecting election expenses, the date of the allowance of the excuse or, if there was a failure in two or more particulars and the excuse was allowed at different times, the date of the allowance of the last excuse shall be substituted for the date of the publication of the notice mentioned in proviso to paragraph (1)(b)..

Prohibition of disclosure of vote

39.No elector who has voted at any election shall, in any proceeding to question the election, be required to state for whom he has voted.

Votes to be struck off at a scrutiny

40. (1) On a scrutiny at the trial of an election petition the following votes only shall be struck off:

(a) the vote of any person whose name was not on the register or list of electors assigned to the polling station at which the vote was recorded or who has not been authorized to vote at such station;

(b) the vote of any person whose vote was procured by bribery, treating, or undue influence;

(c) the vote of any person who committed or procured the commission of personation at the election;

(d) where the election was an ordinary election, the vote of any person proved to have voted at such ordinary election in more than one constituency or electoral ward;

(e) the vote of any person, who, by reason of a conviction of a corrupt or illegal practice or by reason of the report of an Election Judge or the Registrar of the Federal Court, or by reason of his conviction of an offence under section 3 was incapable of voting at the election; and

(f) votes given for a disqualified candidate by a voter knowing that the candidate was disqualified or the facts causing the disqualification, or after sufficient public notice of the disqualification, or when the disqualification or the facts causing it were notorious.

(2) The vote of a registered elector shall not, except in the case specified in paragraph (1) (e), be struck off at a scrutiny by reason only of the voter not having been or not being qualified to have his name entered on the register or list of electors.

(3) (Deleted by Act A1177)

Rejection of ballot paper by returning officer or presiding officer to be final

41. On an election petition the decision of a returning officer or presiding officer, whether or not a ballot paper shall be rejected, under any written law relating to the election, shall not be questioned.

Procedure and practice on election petitions

42. (1) The procedure and practice on election petitions shall be regulated by the Election Petition Rules 1954 as provided for in the Second Schedule.

(2) When any matter is not expressly provided for in the Election Petition Rules 1954, the Rules of the High Court 1980[P.U.(A)50/1980] shall apply.