KUALA LUMPUR, Nov 6 — Even before the start of campaigning for the Melaka state election from November 8 to November 20, the Health Ministry prohibited all election-related gatherings and the authorities have also started issuing compound notices to those determined to have breached the ban.

Health Minister Khairy Jamaluddin on October 24 announced that any activity, gathering, or social event related to elections — including the launch of each party’s election machinery — would be prohibited from October 25 to November 27 to reduce the risk of Covid-19 spreading.

Under the latest standard operating procedures (SOP) for states under Phase 4 of the National Recovery Plan such as Melaka, social events such as engagement, weddings, birthday celebrations are allowed with conditions such as half capacity and with physical distancing, but this set of SOP’s Social events section and Negative list section also carried the same ban announced by Khairy on Melaka election-related gatherings, activities and social events from October 25 to November 27.

Since then, authorities have issued compound notices for alleged breaches of the ban to those such as the Malaysian United Democratic Alliance (Muda), PKR, and Melaka Perikatan Nasional.

But would the compounds actually be effective? Here’s what lawyers have to say about how effective offering compounds may be for offenders of the ban on Melaka election gatherings.

Datuk Ng Kong Peng, who is a former chair of the Melaka Bar Committee, said the compound offers issued for those who breach the Melaka election activities ban would have varying impact depending on how well-funded political parties are.

"It depends on the political parties concerned. The compound would not be much of a deterrent to political parties with deep financial resources or for the established political parties. The RM4,000 or RM10,000 compound (offers) don't really make much difference to their campaigning strategy,” he told Malay Mail when contacted, citing some figures that had already been issued recently as compound offers in Melaka.

"Whereas for Muda, they got RM4,000, that would be possibly more taxing for them because they are a new party and their financial standing is not that good yet. Obviously, independent candidates would be worse. It will be more challenging for them, obviously they cannot afford compounds,” he added.

Apart from political parties with deeper pockets, Ng said the issuing of compounds may also not be a deterrent to politicians who think they can get away with breaching the ban on Melaka election-related gatherings.

"As of now, there are certain people who are getting away with it because they say they are tourists or doing walkabouts,” he said in reference to the recent cases involving ruling party politicians Datuk Seri Najib Razak and Tan Sri Muhyiddin Yassin as examples.

Ng pointed out that it is difficult to both interpret the ban and to enforce it fairly, as it would be hard to define what would count as banned activities.

"How do you define if it's a political gathering or walkabout? So that's going to be very subjective. How do you implement it fairly across the board?” he asked.

"It won't work because politicians who believe they can get away with it, will carry on what they are doing, because somehow they managed to find a loophole. Whether it's a loophole, it's very subjective whether this is a walkabout or gathering,” he said.

Ng also highlighted the uncertainties that could arise, such as when a minister may claim to be at an official event as part of their ministerial duties.

"The other concern is what about politicians or people having official positions, they do it as part of their job in official capacity. For example, ministers carrying out official functions or officials giving food aid as part of their position. So can the person say, I'm not campaigning, I'm just here as part of my duty as an official, so is it a political gathering?

"So it's going to be very difficult to enforce. Ministers would say ‘I'm not campaigning, I'm just coming to do my job’, but in the midst of that, deliver a speech about the good things the government has done,” he said, noting that the ban would have to be enforced fairly and efficiently in order to be a deterrent.

"How do you differentiate between a walkabout and gathering? How do you differentiate between a minister doing an official job and delivering speech to a crowd and giving food aid to the crowd, is that a gathering? So at the end of the day, it's about enforcement,” he said.

Asked about Opposition party PKR receiving a compound notice for what it said was an online or mobile event from a truck without a crowd, Ng noted the Melaka police chief reportedly said that police were fair, gave equal treatment and that there were photos to show people gathering there.

Ng indicated this to be another example of possible uncertainties, asking if PKR should be held responsible if people gather there despite the party saying that it was not organising a gathering and did not invite anyone.

"If you go on that logic, what about Datuk Seri Najib, he went there and talked to people, so what's the difference?”

Since the offer to compound an offence enables one to pay a penalty and avoid prosecution, Ng noted that this would mean election candidates would not lose their eligibility to stand in the Melaka state election, which he said removed any deterrent.

The Melaka-based lawyer cited Article 13 of the Melaka state constitution where a person would be disqualified from being a state assemblyman if convicted in court of an offence and sentenced to imprisonment of not less than one year or a fine of not less than RM2,000.

"But I doubt that will come into play, firstly a compound is not a conviction, so that Article doesn't come into play.

"The second reason why — a lot of people who get compounds or charges are not candidates, they go after the organisers. It'll probably be someone like an organising secretary or political bureau head, but they won't go after the candidate. So very unlikely this will come into play,” he said.

As for complaints such as why other political parties did not get similar compound notice issued for gatherings, Ng noted that this would not be a defence in court to say that others did not have the same rules enforced on them, as the court will judge whether a person on whether they had committed an offence. He noted that enforcement viewed as unequal would only cause a lot of frustration and grievances, while agreeing that it will put smaller parties and independent candidates at a disadvantage.

Datuk Ng Kong Peng, who is a former chair of the Melaka Bar Committee, said the compound offers issued for those who breach the Melaka election activities ban would have varying impact depending on how well-funded political parties are. — AFP pic

The need to look good may deter repeat offenders

When asked if political parties would treat compounds as a loophole to keep breaching the ban on Melaka election-related activities, Ng said political parties with deeper pockets like Umno will feel less pain, but suggested that public perception could be an additional deterrent to repeat breaches of the ban.

"So far it's still early days, so far only a few compounds (have been) issued. We don't know if politicians will keep on doing it and getting away with it.

"Because apart from the compounds, it's also about public perception. They also don't want to give the public the perception that they don't care about the rules. Even if they can afford to pay, they won't keep on breaching it.

"It won't look good if you are a politician telling people to obey SOPs and your party is compounded repeatedly for breaching SOPs. So I don't think they will actually do that, I think they will do more creative methods of campaigning such as doing walkabouts,” he said.

Apart from the ban, Ng said there has yet to be detailed standard operating procedures for more specific events during the Melaka election, such as nomination day and what would be allowed during the campaign period.

Asked if the current ban could be improved such as how it is worded, Ng suggested that it would boil down to having fair enforcement of the ban or standard operating procedures however the authorities interpret it.

"I think it's very difficult because those are just words, how precise can you use words? You want to put these words in. At the end of the day, it's subject to human interpretation, when it comes to human interpretation, there will always be subjectivity.

"At the end of the day, we can only ask for fairness in terms of enforcement, that's all. You may interpret the law in one way, as long as it is enforced on everybody,” he said.

Unfair advantage to the richer parties

Lawyer New Sin Yew, who is also co-chair of the Bar Council’s Human Rights Committee, disagreed that issuing compound notices would deter breaches of the ban on election-related gatherings during the Melaka election period.

"No, as we can see, the bigger and wealthier political parties continue to flout the ban because they can afford to pay the compound while the less well-off parties and candidates are more circumspect.

"This creates an unfair advantage to the bigger and wealthier political parties,” he told Malay Mail when contacted.

Asked to evaluate the law and its enforcement, New said that poorer candidates and poorer political parties would be "discriminated” against by the penalty.

"The richer candidates and political parties gain an unfair advantage by flouting the law and getting away because they have no problem paying the fine,” he said.

New suggested that taking the option of charging an election candidate — which comes with the potential of being disqualified — would have a better deterrent effect. — Reuters pic

Bring repeat offenders to court as losing eligibility may discourage breaches

To counter a situation where the Melaka election activities ban may be repeatedly breached by those with the funds to keep paying the compound amount offered, New suggested that Malaysian authorities prosecute those who commit more than one offence during the Melaka election period.

"If a person contravenes the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (National Recovery Plan) Regulations 2021, the authorities have an option of either issuing a compound or prosecuting such person in court.

"If he is prosecuted, a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding six months or both may be imposed upon conviction,” New noted, referring to the regulations which the government had cited in imposing the ban.

New noted that a person who happens to be an election candidate for a federal seat would be disqualified from holding such a position if convicted and slapped with a fine of not less than RM2,000, and referred to a similar provision in the Melaka state constitution that would disqualify someone for state assemblymen positions if fined not less than RM2,000 upon conviction in court.

New suggested that taking the option of charging an election candidate — which comes with the potential of being disqualified — would have a better deterrent effect.

"If the authorities are indeed serious about imposing the ban pre-campaign period then they should prosecute serial offenders to deter them. Otherwise, they are just penalising poorer parties and candidates,” he said.

Asked if it would be a form of additional loophole if a Melaka election candidate can claim to not be the organiser of a gathering and if the compound offer or even prosecution for repeat cases would then affect only the organiser, New pointed out that both the regulations and the latest standard operating procedures for Phase 4 do not state that only organisers would be responsible.

"Regulation 10 doesn’t distinguish between organisers or participants. As long as you are involved in any gathering, you would be liable.

"However, the authorities may choose who to compound. It could be the organisers, or some participants, or all,” he said.

He was referring to Regulation 10(1) of the Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (National Recovery Plan) Regulations 2021 — which says "no person” shall "gather or be involved in any gathering” including for social or cultural purposes — which Khairy had cited in announcing the ban for Melaka election-related activities.