JAN 24 — Alas it is said, by non-other than the anti-graft chief, that a bribe is a bribe no matter how one chooses to describe it.
The Malaysian Anti-Corruption Commission (MACC) chief commissioner Tan Sri Azam Baki said the Election Offences Act 1954 (Revised 1969) was very clear on what constitutes vote-buying.
“Section 10(a) of the Act is very clear and whatever layman terms used to defend an argument is a mere personal interpretation.
“Name it ‘sedekah’ (alms) or ‘contribution’, the law deems it a bribe paid to voters – regardless whether the voters solicit it or not,” he told the English daily The Star.
Section 10(a) of the Act says as follows:
Every person who, before, during or after an election, who directly or indirectly, by himself or by any other person on his behalf, gives, lends, or agrees to give or lend, or offers, promises, or promises to procure or to endeavour to procure, any money or valuable consideration to or for any elector or voter, or to or for any person on behalf of any elector or voter or to or for any other person, in order to induce any elector or voter to vote or refrain from voting, or corruptly does any such act as aforesaid on account of such elector or voter having voted or refrained from voting at any election.
The actus reus or offending act is to give or lend, or offer, promise or promise to procure or endeavour to procure money or valuable consideration to induce a voter to vote or refrain from voting.
Based on the above, cash handouts during campaigning given by any person by himself or by any other person on his behalf are bribery. The person commits an offence and shall be guilty of a corrupt practice. [Section 11(1)(b) of the Act]
This is demonstrated in the case of Manogaran Marimuthu v Sivaraj a/l Chandran [2018] MLJU 1973, in which an Election Petition (EP) was filed by the Petitioner to challenge the return of the Respondent as the Member of Parliament for P. 078, the parliamentary constituency of Cameron Highlands.
The EP was premised on Section 32(a) and (c) of the Act. When read with Section 10(a), it means that the Petitioner must prove that before, during or after an election, either:
(a) the Respondent by himself directly or indirectly, or
(b) by another person with the Respondent’s knowledge or consent
gives money to an elector or voter for the purpose of inducing the recipient of that money to vote or refrain from voting in the.
It was further ruled by the Election Judge (EJ) that the onus was on the Petitioner to prove beyond reasonable doubt the allegations that he had raised in the EP. (See the judgment of Raja Azlan Shah J (as His Highness then was) in the case of Ali Amberan v. Tunku Abdullah [1969])
The learned EJ then went on to analyse the evidence to ascertain if it supported each allegation of corrupt practice in the EP and ruled as follow:
“I find that the money was given to the voters with the Respondent’s knowledge in respect of Paragraph 12.1, 14.1 and 14.3 (2nd Meeting) of the EP.
“From the evidence supporting these claims by the Petitioner, there was payment of RM200 (paragraph 14.1), RM25,000 and RM200 (paragraph 14.1) and RM300 (paragraph 14.3 - 2nd Meeting).
“There is therefore a pattern of giving money to the voters, during the crucial period before the election, which to me can only mean to induce the elector to vote.
“The money was given when the Respondent and [another candidate] were actively campaigning in the said areas under the [Barisan Nasional – BN] banner. Added to that, the evidence of [Petitioner’s Witness – PW10] and PW11 shows that they had received the money together with the voting slips with BN logo, and this was confirmed by the [Respondent’s Witness – RW3] who had admitted that BN did distribute the slips.
“To me, it is clear that these surrounding circumstances led me to the inevitable conclusion that the money was given to induce the voter to vote.
“Therefore, it does not matter if the Respondent says that the money was given as ‘duit rokok’ or as travelling allowances ... as these are merely to disguise the real intention for the giving of money before the election.
“In fact, when PW9 was cross examined by the Respondent, he said the money was given to induce the voters to vote in the Election.
“It is not in dispute that the [voters] would welcome any assistance, be it cash or in kind, from all parties .... In fact, the evidence shows that the money given was used for daily expenses .... [A]s decided by the case of Abu Seman v Public Prosecutor [1982] 2 MLJ 338, the intention of the recipient is not relevant.”
In the circumstances, the learned EJ ruled that the Petitioner had established beyond reasonable doubt that bribery under Section 10(a) of the Act was proven, in that money was given to the voters and that the money was given to the voters to induce the voters to vote.
The case showed how the corrupt practice of bribery under Section 10(a) of the Act was committed. Needless to say, it has to be proven or established beyond reasonable doubt.
Call them what you like – “sedekah” or “sumbangan” or “duit rokok” or “duit kopi” or “duit tambang” – cash handouts before, during or after an election are bribery.
