Posted: 16 Jul 2013 10:13 PM PDT
PRESS STATEMENT - 17 July 2013
Pakatan Rakyat suit is against the 7 EC officials is constitional
The Deputy Chairman of the EC has responded to the suit by Pakatan Rakyat to say that the suit is unconstitutional citing Article 118 of the Federal Constitution.
I would advise him to review his views with his legal advisors.
The Deputy Chairman is failing to appreciate that the suit filed against the 7 members of the EC is alleging that by willfully and knowingly causing the failure of the indelible ink, they acted fraudulently, breached the constitutional rights of the Plaintiffs and also committed the tort of misfeasance in public office. If the Court after hearing the evidence agrees with the Plaintiffs, the main reliefs sought are declarations to such effect and also payment of general damages. There is nothing unconstitutional about such a suit for such reliefs. Actions against public bodies based on such causes of action are well established all over the world in similar common law jurisdictions.
In the event that the Court finds that the EC officials did act fraudulently, in breach of constitutional rights and committed misfeasance in public office, then Pakatan Rakyat is also seeking consequential reliefs that the election in all 222 parliamentary seats is declared void and that the same errant officials are removed from their positions so that a fresh election can be conducted by new and credible officials.
Again, I see nothing unconstitutional in seeking such consequential reliefs.
There are decided cases in apex courts all over the Commonwealth which have intervened in cases of election misconduct by election officials other than purely through election petitions. I will just cite one here - Union Bank of India v Association for Democratic Reform  5 SCC 294 where the Supreme Court of India in a constitutional challenge issued directions to the Election Commission. The case was not filed as a election petition. India has an identical provision to Article 118 of our Federal Constitution which provides that a challenge to an election can only be done via an election petition.
The Deputy Chairman of the EC seems unable to appreciate and understand the universal and fundamental principle in common law, best expressed in Latin “Ubi jus, ibi remedium” which means “Where there is a right, there is a remedy” which has been accepted in the Courts of England, Canada, Australia and India (in other words, the mature, senior Commonwealth) to apply in constitutional litigation. Thus, any constitutional right if violated, must have a remedy or redress, more so when the right involves the right to a free and fair election. Accordingly, Pakatan’s civil suit seeks constitutional remedies for breaches of rights guaranteed under the constitution. One need not and in fact does not pursue them by way of an election petition in an election court.
Pakatan Rakyat is aware that the independence of the Malaysian courts is a matter of controversy particularly when high profile political cases are involved. However Pakatan Rakyat calls upon the members of the judiciary to play their role as an independent institution and ensure that rights provided for under the Federal Constitution are upheld.
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