By :

Datuk Seri Akhbar Satar

President

Association of Certified Fraud Examiners- Malaysian Chapter

Adequate laws for Election Commission, authorities to pursue electioncrimes

Political parties and prospective candidates who will be standing for the Malacca state election (PRN) are advised to comply with specific rules related to misconduct and corrupt activities as stipulated by the Election Offences Act 1954 (EOA 1954), the Malaysian Anti -Corruption Commission Act 2009 (MACC Act 2009) and the Penal Code.

The necessary provisions already exist within local laws to enable the MACC, PDRM and Election Commission (EC) for stern action against corrupt practices in the lead up to the upcoming Malacca state election. The provisions of EOA 1954, cover all forms of corruption, namely sections 8 (Treating), 9 (Undue influence), and 10 (Bribery during or after the election period).

While the existing laws can be further strengthened, existing EC officers and members of enforcement agencies are ready and will monitor the election campaign activities of the candidates and their agents in ensuring that no one violates the election campaign laws, rules and ethics.

Section 8 of the Election Offenses Act 1954 - Treating

Under Section 8 of EOA 1954 candidates shall be considered committing corrupt practices by offering food and drink to voters because their action shows appreciation to voters, especially when the candidate has the desire to vote for himself. Excerpts of Section 8 are as follows: -

“…and every elector or voter who corruptly accepts or takes any such food, drink, or refreshment or provision or any such money or ticket or who adopts such other means or device to enable the procuring of such food, drink, refreshment or provision shall be guilty of the offence of treating.”

The key word is ‘corruptly’ i.e. having intent to corrupt by giving the food or drink.

Section 9 of the Election Offenses Act 1954 - Undue influence

This section refers to "undue influence" whereby someone is deemed to be guilty of undue influence if they use, may use or threaten to use, force or violence to unfairly influence someone to vote a certain way, or not vote at all.

Section 10 of the Election Offenses Act 1954 - bribery

Under Section 10 bribery is deemed to have occured when a candidate or any individual offers ‘vote buying’ either directly or indirectly such as giving or offering money, gifts, jobs, or loans during the election process or promises of such after the election.

Money politics is intollerable and therefore should not be practiced by any political party. To overcome money politics from both sides of the political divide, the government must introduce the Political Funds Act as soon as possible. This Act will serve as a guide for political parties to differentiate between political funds and contributions and corruption.

DUN election expenditure limit

Election expenditure limit is a commonly ignored provision of EOA 1954. It is almost unspoken of or written about in the media.

According to Section 19 of EOA, the maximum limit for election expenditure is RM150,000.00 for each state seat and RM200,000.00 for a parliamentary seat

The law is comprehensive. Unfortunately, the Election Commission does not have the power to enforce the Election Offences Act 1954 and take action against candidates who violate the election law.

The penalties related to corruption and abuse of power are under the jurisdiction of the MACC and the Royal Malaysian Police (PDRM). Therefore, the EC can only give full cooperation by reporting to MACC for actions to be taken if they found any corruption and abuse of power, before and during the election period. Likewise, the matter of "undue influence" involving intimidation and use of force, directly or indirectly, must be channelled to PDRM.

Punishment under the Election Offenses Act 1954

Anyone found guilty of the four offenses above can be jailed for a maximum of two years, fined RM5,000.00 or disqualified as an elected representative and loses the rights of a voter for five years from the conviction period.

These offences are ‘arrestable offences’ within the provisions of the Criminal Procedure Code.

The offender of corruption under the EOA 1954 can also be convicted of an offence under the MACC Act 2009 which carries a much heavier punishment as follows:-

MACC Act 2009 - Penalties and penalties

The Act provides for a maximum imprisonment term of 20 years, a fine of five times the value of the bribe or RM10,000.00 whichever is higher, if convicted.

Section 25 (1) and (2) of the MACC Act 2009 - Failure to Report gifts,promises, or offers

Failure to report a bribe, promise or offer under Section 25 (1) and (2) of the MACC Act 2009 shall result in a fine not exceeding RM100,000.00 and imprisonment not exceeding 10 years or both.

Section 25 (3) and (4) of the MACC Act 2009 - Failure to Report requestor obtain

Further, when failing to report a request or obtain a bribe under Section 25 (3) and (4) of the MACC Act 2009 will be fined not more than RM10,000.00 or imprisonment of not more than two years or both.

All candidates and their supporters should conduct their campaigning within the provisions of our laws. The relevant law enforcement agencies must enforce our laws strictly to protect our democratic process to allow for a free, clean, fair and credible Malacca state election.

A political process with integrity can accelerate positive change. After this election, the winning party is expected to form a government with integrity and, together with the people, fight corruption to the fullest.