If the Court wants to allow the suit to be struck out, it should not do so at least without the merits of the case being heard.
NEWS ANALYSIS It would be interesting to witness whether the High Court of Malaya in Kuala Lumpur allows the application by Prime Minister Najib Abdul Razak and three other parties to strike out a suit filed by PKR and five other parties that the results of the last General Election in 2013 be set aside.
There?s no reason why the civil court cannot make declarations separate from the Election Court which operates after every General Election but provided it can accept the various proof and evidence by the plaintiffs that the defendants exceeded election spending limits.
The argument can be made that even if the Court wants to allow the suit to be struck out, it should not do so at least without the merits of the case being heard. Evidently, there?s a case to be heard. Each election candidate for a parliamentary seat is not allowed to spend more than RM200,000 and for a state seat RM100,000 under section 19 of the Election Offences Act, 1954.
Najib himself has made the claim that USD681 million which entered his personal banking accounts at AmBank Islamic private banking services before the last General Election in 2013 came from a source in the Middle East and/or a power to help the ruling Barisan Nasional (BN) win the election.
Najib and Barisan Nasional (BN) Secretary-General Tengku Adnan Tengku Mansor, two of the defendants, reportedly plan to apply to strike out the suit on the grounds that the civil court was not the proper forum to hear the suit and, furthermore the claim goes, Najib and Adnan should not have been named as defendants.
Again, this is a reference to the fact that the Election Court , at the High Court, hears petitions challenging the validity of election results but provided filed within the stipulated time. Generally, the Court takes the position that no election is free of fraud, but the test in such cases was whether the extent of fraud affected the outcome. If the outcome was affected, the Court could either hand the victory to the other party after discounting the disputed votes, or order fresh elections.
PKR, like other opposition parties and even the BN itself, has been through the process in the Election Court . No election result was ruled invalid. It?s not easy to prove election fraud in a Court of Law. The Court is not about the truth, justice, ethics or moral values, but the law. Once the election results are gazetted, the law holds that they cannot be challenged.
By revisiting the last General Election through a civil suit, PKR was obviously taking a global strategic approach. PKR filed the civil suit on August 12 following an expose in the Wall Street Journal on Friday 3 July that the USD681 million (RM2.6) billion entered Najib?s personal banking accounts with AmBank Islamic private banking services before GE13. The newspaper report has not been challenged although Najib?s lawyers sought clarification from it after earlier threatening to sue it.
The plaintiffs are seeking several declarations; that the BN be de-registered; that the conclusion of the 222 parliamentary seats has been compromised; and that the results of GE be therefore set aside.
They also want the Court to rule that each of the defendants which include the 1Malaysia Development Board (1MDB) and the Election Commission (EC), either acting individually or with each other, had maliciously and dishonestly practised fraud on the Malaysian electorate by the commission of corrupt and illegal practices, and as a consequences the results of GE13 should be declared null and void.
Najib has until Oct 1 to file his defence; the BN by Sept 15; and 1MDB and EC by Sept 14.
Deputy Registrar Nor Fauzani Mohd Nordin made the directions during case management on Thursday.
Mohd Hafarizam Harun is representing Najib and the BN Secretary-General; and Tan Hock Chuan appears for 1MDB. Senior federal counsel in attendance Alice Loke Yee Ching and Azizan Md Arshad were present on Thursday.
The plaintiffs were represented by Michelle Kumar. Messrs Tommy Thomas filed the suit on their behalf.
The plaintiffs include jailed Opposition Leader Anwar Ibrahim; former PKR Secretary-General Saifuddin Nasution Ismail; PKR Vice Presidents Nurul Izzah Anwar and Tian Chua; and former PAS leader Dzulkefly Ahmad.