The Kimanis by-election has been necessitated by the Election Court's nullification on Aug 16, 2019, of former MP Datuk Seri Anifah Aman's win in Kimanis in the 14th General Election in May 2018. He had polled 11,942 votes to win by a 156-vote majority on a Barisan ticket. Datuk Seri Anifah Aman later quit Umno in September 2018 to become an independent MP and had held the seat for 20 years after winning it for the first time in 1999.
As the law enforcement agencies, the the Malaysian Anti-Corruption Commission (MACC) will take stern action against any political party, agents and its members who breach of the provisions of Election Offences Act 1954(EOA) and found to have been using inducement as a means to buy votes during the current Kimanis state by-election. The police meanwhile can focus on other criminal offences and security matters. The MACC has set up a special operations centre to enable the public to report any instances of abuse of power and corruption in the Kimanis by-election which will operate 24 hours daily, is located at the Kota Kinabalu MACC office. People could contact 088-488381 for information. According to the existing legislative framework, the Election Commission (EC) does not have the power to probe or fine any election candidate or party it represents for any violation of election law, especially provisions under the EOA.
BREAKING THE LAW
Both candidates who are contesting in this by election should not engage in any activities that could violate election laws and regulations in accordance with the EOA, MACC Act 2009 and Malaysian Communications and Multimedia Commission (MCMC).
Many have accused the change of government in May 2018 does not seem to have brought the expected changes to the way political parties conduct their election campaigning. In the Port Dickson by-election, election monitoring group Coalition for Free and Fair Elections (BERSIH 2.0) observed 10 election offences committed by candidates. Election offences were also reported during the Sungai Kandis by-election in August and the Seri Setia and Balakong by-elections a few months back.
However, even before the nomination date and the official campaign period started in Kimanis, Umno vice-president Datuk Seri Ismail Sabri Yaakob alleged of corruption have surfaced. This include during a Christmas event in Membakut recently, where Warisan leaders handed out lucky draw prizes which are offences under the EOA.
Last Friday, Salahuddin announced an allocation of RM90,000 to the fishermen’s representative in Kampung Biau, Bongawan, to repair the old jetty in the village. In addition, Salahuddin also handed over a mock check for RM3 million to Papar PNK - RM1 million under the allocation will be used for economic projects, while the balance of RM2 million in building grants for business purposes.
The Semenyih polls meanwhile saw a total of 35 cases of election offences and misconduct, which is the highest number among the six by-elections. PH had been accused of committing 21 cases of election offences and misconduct, while Barisan Nasional(BN) had 13 cases, involving eight cases of undue influence, five of treating and gifting, three covering the promotion of ill-will using race and religion, two involving political violence and harassment, and 17 offences on polling day itself.
The recent Tanjung Piai by-election also saw a number of election offences and misconduct. There were 21 cases of election offences and 10 cases of misconduct at the by-election including three cases involved the offence of treating and gifting during campaigning period, while 18 other offences involved breaching the campaign limitation period on polling day. BERSIH stated that all the cases involved PH ministers and the Johor Menteri Besar (Datuk Dr Sahruddin Jamal) announcing new development projects and allocation aimed at the people of Tanjung Piai. The total amount of allocation announced and those from news reports amounted to RM23.93 million.
These were not right, it’s morally wrong, unethical and attempts to influence voters unless it was an official schedule or pre-arranged as part of service delivery.
BERSIH stated that the 10 cases of misconduct saw a worsening trend of misusing government resources for campaigning.
Campaign financing enforcement is also necessary. Election campaigns are increasingly expensive where politicians require large sums of money to run their campaigns and this raises serious integrity concerns. The sources of these funds, the amounts that may be accepted and the lack of equal resources may present potential threats that can affect the election. In Malaysia there is no law on political funding.
ELECTION OFFENCE ACT 1957
Under EOA, it is an offence not to submit election expenditure statement within 31 days after the election results are gazetted. Failure to submit the expenditure statement would include not being allowed to attend the state assembly sitting, not being allowed to participate in any elections for five years and being charged with breaking the law.
Hence, access to information on political financing, including election campaign contributions and expenses, are essential for protecting integrity since they promote transparency and increase public confidence in the electoral process.
Politicians must show their commitment towards “observing the principles of truth, integrity, accountability and ethical conduct” both during the election period and after being voted into office. They should avoid the role of money politics and any other issues which can affect the harmony of the multi-racial country.
There are a few offences in the EOA. For example, Under Section 15A of the EOA, a candidate must record all expenses incurred during an event, and that a candidate's spending limit is maximum RM100,000.
The other offences amounting to corrupt practices is provided for under sections 8 (treating), 9 (undue influence), 10 (bribery) of the EOA. It covers both direct and indirect acts committed to induce any person to vote or refrain from voting.
Under section 8 of the EOA, every candidate who corruptly accepts or takes any such food, drinks or refreshment, provision, money or tickets shall be guilty of the offence of treating.
Section 9 of the EOA refers to corrupt practices by placing undue influence on voters. The use of coercive tactics to influence or interfere with any person’s exercise of any electoral right constitutes an offence under the EOA.
With reference to section 10 of the EOA (bribery), a person is guilty of an offence if anyone commits direct or indirect vote-buying such as giving or offering money, gift, employment, office, place or loan before, during or after an election.
PENALTY UNDER EOA
All of the above sections 8 (treating), 9 (under influence) and 10 (bribery) of EOA covers not only the candidate but anyone liable to commit these offences. Under the Act, a person convicted of a corrupt practice offence may be liable to a jail term of up to two years or a fine between RM 1000 and RM 5000 and a suspension of your ability to vote for a period of 5 years.
PENALTY UNDER MACC 2009
The penalty for any corruption-related offence in the MACC Act is (I) imprisonment for a term not exceeding 20 years and (ii) a fine of not less than five times the sum or value of the gratification or RM10, 000, whichever is higher.
In general, candidates use a variety of means to communicate their message to voters, including through the media. As such access to the media, especially those financed by the rakyat's money is essential to ensure that broadcasting airtime is allocated fairly to parties and candidates.
There should not be any accusation of the public media for not being independent and fair in allowing all candidates the opportunity to provide their views and campaign messages through the media. Politicians who are running should also conduct professional debates on their manifestos and focus on the needs of the rakyat together with the track record of parties and candidates. By doing so they will garner public confidence and increase their chances of winning the election.
The misuse of official power and machinery during the upcoming by elections by political parties should also be totally banned. Political party financing is a big area surrounding electoral campaigns. As the recommendations by The National Consultative Committee on Political Financing have already been given in 2018, Malaysians are eager to see these recommendations accepted by the Malaysian Cabinet, resulting in the full implementation of a new law to govern and regulate the financing of political parties in the upcoming general election. Having a set of laws to regulate political funding will have a positive impact on Malaysia as it will improve the country’s image in the terms of transparency, integrity and accountability. There should be zero tolerance of “money politics” from both sides of the political divide.
All candidates who are contesting in the Kimanis by election and their supporters need to conduct their campaigning within the scope of our laws, and for all enforcement agencies to enforce our laws and protect our democratic process to allow for a free, clean, fair and credible Kimanis by-election. Otherwise our cry for a “Malaysia Baru” will surely ring hollow.
* Datuk Seri Akhbar Satar holds HELP University’s Institute of Crime & Criminology professorial chair and President Malaysia Association of Certified Fraud Examiners.
** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.