The campaigning period for the 15th General Election (GE15) is nearly coming to an end. For the past two weeks or so, everywhere Malaysians go, there are political parties’ flags waving and posters of hopeful candidates courting voters to cast their ballots in their favour. This time though, some big names are absent from the candidates’ list, including veteran politicians that decided to retire or take a rest from the scene, or those unfortunate enough to be dropped by their respective parties.
The list of absentees also includes Datuk Peter Anthony, which is particularly notable given the manner in which his nomination was rejected by the Election Commission (SPR). In fact, Peter’s rejection at the last minute was controversial and instigated a riot in Tenom among his supporters outside the nomination centre, to the point that the authorities had to utilise tear gas to disperse the crowd. A regrettable incident that smeared an otherwise uneventful nomination day.
As reported by The Star, Peter, who is also the Sabah State Legislative Assembly Representative (ADUN) for Melalap said he was perplexed by the decision, claiming that the returning officer (RO) had found his nomination papers and supporting documents to be in order. In fact, Peter claimed that he was even permitted to draw his candidate number and an official announcement of his candidacy was made inside the nomination centre.
However, at the last minute, the RO notified Peter that there was an objection from SPR headquarters in Putrajaya despite the Sabah SPR having no issue with his nomination. As it turned out, SPR headquarters objected to his nomination because of his ongoing case at the Kuala Lumpur Sessions Court which is currently in the process of appeal at the High Court.
Unfortunately, based on the facts and judgement of Peter’s case, SPR had erred in its decision to disqualify him from contesting in GE15. This is according to the relevant laws and regulations which we will dive deeper into further on in this article.
So, what legal avenues can Peter Anthony take in order to right this wrong? Can he stop the GE15 contest in Tenom? If voting continues, can he nullify the result and request for re-election? Well, read on to find out.
SPR made an error by rejecting Peter’s nomination
In May this year, the Parti Kesejahteraan Demokratik Masyarakat (KDM) chief was sentenced to 3 years imprisonment and a fine of RM50,000 by the Sessions Court for forging a letter in 2014 from the office of Universiti Malaysia Sabah deputy vice-chancellor for a system maintenance contract. Subsequently, in August, the Sessions Court granted him a stay of conviction and punishment for the case pending an appeal in the High Court.
The most relevant law for Peter’s current conundrum is Regulation 7(d) of the Elections (Conduct of Elections) Regulations 1981. According to the provision, an individual is barred from running in an election if he is disqualified from being a member under the provisions of the Constitution of Malaysia in the case of an election to the Dewan Rakyat.
Regulation 7(d) of the Elections (Conduct of Elections) Regulations 1981 reads as per below:
Accordingly, Article 48(1)(e) of the Federal Constitution prescribes the disqualification for membership of Parliament most relevant to the subject matter at hand, which is through conviction by a court of law in Malaysia. The provision details that a person is disqualified from being a member of either House of Parliament if they have been convicted of an offence and sentenced to imprisonment for a term of not less than one year or to a fine of not less than RM2,000 and have not received a free pardon.
Applied to Peter’s situation, the sentence in his case has undoubtedly exceeded the threshold set by Article 48(1)(e) of the Constitution. In addition, Article 48(5) also prescribed that conviction will immediately disqualify an individual from nomination, election or appointment to Parliament.
However, the aforementioned provisions can’t actually bar Peter from running in GE15 because he has not only been given a stay of punishment in the case pending appeal to the High Court, but also a stay of conviction. In fact, a stay of conviction was explicitly requested by Peter’s counsel S. Devanadan for the purpose of the KDM chief to contest in GE15.
The precedent set by Najib’s SRC International case
Peter’s situation is something unique and the first of its kind in our country, as the precedent for a stay of conviction is relatively new in our legal system. Usually, when an accused is convicted in court, they would only be granted a stay of punishment pending appeal and not a stay of conviction.
The precedent was set during former Prime Minister Datuk Seri Najib Razak’s infamous SRC International trial at both the High Court and Court of Appeal levels. In both instances, Najib was granted a stay of conviction and punishment up until his appeal process was exhausted at the Federal Court.
Given that Peter was also given a stay of conviction in his Sessions Court case, he should not be barred from contesting in GE15. Hence, the Melalap ADUN has legal grounds to challenge his disqualification by SPR from contesting for the Tenom Parliamentary seat.
What legal course of action can Peter take?
Unfortunately, Peter has no way to stop the polls in Tenom on Saturday or become one of the candidates in GE15. This is because the nomination process for GEs is bound by the stringent rules of the Elections Regulations (1981) which has no room for a judicial review, as it is considered a wrong process of law.
However, one option that the KDM chief has is to file an election petition after the official results are gazetted. Through this election petition, Peter may be able to nullify the results of the Tenom election race in GE15 which would result in a re-election being held.
Moreover, Peter can also file an election petition under section 32(b) of the Election Offences Act 1954 to challenge the RO’s decision to reject his nomination. Besides that, the Melalap ADUN can also file an originating summons to declare that he was an eligible person to contest in GEs and by-elections as per Article 48(1)(e) of the Constitution and that it was unfair to his eligibility and right to contest in any elections.
The latter was the course of action taken by former Batu MP Tian Chua who like Peter, was wrongly disqualified from contesting in a GE. In 2018, Tian Chua was disqualified from being a GE14 candidate because of a fine of RM2,000 imposed on him by the High Court for a criminal case in 2017.
In her judgement in Tian Chua’s suit against SPR, Justice Datuk Seri Mariana Yahya said that the former Batu MP’s eligibility and right to contest were not affected by the RM2,000 fine imposed on him. Instead, an MP will only lose the right and eligibility to contest if the fine is RM2,001 and above as per Article 48(1)(e) of the Constitution and stressed that it was unfair and unreasonable for SPR to reject Tian Chua’s nomination.
Moving forward, all eyes would be on Peter’s legal course of action after the results of GE15 have been gazetted. Should he apply for an election petition to nullify the results and be successful, then the good people of Tenom may have to go out and vote for a second time.