Jail, fine, disqualify as elected representative under Election Offences Act 1954

POLITICAL parties and candidates involved in the upcoming General Election (GE 15) have been advised to comply with specific rules related to misconduct and corrupt activities stipulated by the Election Offences Act 1954 (EOA 1954), Malaysian Anti-Corruption Commission Act 2009 (MACC Act 2009), the Penal Code and The Malaysian Communications and Multimedia Commission (MCMC).

The provisions of EOA 1954 alone cover all forms of corruption: Section 8 (treating), 9 (undue influence) and 10 (bribery) during or after the election period. These are arrestable offences within the provisions of the Criminal Procedure Code. The penalties are severe, can be jailed for a, fined or disqualified as an elected representative and loses the rights of a voter.

The necessary provisions already exist in local laws to enable MACC, the police, Malaysian MCMC and to take stern action against corrupt practices in the lead-up to the GE 15.

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. The offences are as below:

Treating

Candidates would be committing corruption under Section 8 of EOA 1954, if they offered food and drink to voters because their action shows appreciation to voters, especially when the candidates have the desire to vote for themselves:

Excerpts of Section 8 are very clear 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", that is, having intent to corrupt by giving food or drink.

Undue influence

Section 9 refers to "undue influence" whereby people are deemed to be guilty of undue influence if they use, may use or threaten to use force or violence to unfairly steer someone to vote a certain way, or not vote at all. The penalties related to corruption and abuse of power are under the jurisdiction of the MACC and the police.

The matter of undue influence involving intimidation and use of force, directly or indirectly, must be channelled to the police.

Bribery

Bribery is deemed to have occurred under Section 10, when candidates or any individual "buy" votes, either directly or indirectly, such as giving or offering money, gifts, jobs or loans during the election process or making promises of such after the election.

To overcome money politics from both sides of the political divide, the government must introduce the Political Funds Act as soon as possible to serve as a guide for parties to differentiate between political funds, contributions and corruption.

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

The present limit allowed by the law for election expenditure is RM150,000 for a state seat and RM200,000 for a parliamentary seat. It is believed that a party will spend millions per candidate. EC for review of candidate expenditure limit to ensure transparency among each politician in this country.

Datuk Seri Mukhriz Mahathir, the Party Pejuang Tanah Air (Pejuang) president, said political parties and candidates should be allowed to spend as much as they can afford for campaigning as long as the source and recipients of the funds were known.

Penalties- EAO 1954

Anyone found guilty of the above three offences under EAO 1954 can be jailed for a maximum of two years, fined RM5,000 or disqualified as an elected representative and loses the rights of a voter for five years.

Penalties - MACC Act 2009

The person who commits corruption under the EOA 1954 can also be convicted of an offence under the MACC Act 2009, which carries much heavier punishments.

The act provides for a maximum imprisonment term of 20 years, a fine of five times the value of the bribe or RM10,000 whichever is higher, if convicted.

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 and imprisonment not exceeding 10 years or both.

Further, failing to report a request to obtain a bribe under Section 25 (3) and (4) of the MACC Act 2009 will result in a fine of not more than RM10,000, or imprisonment of not more than two years, or both.

Clean and fair election

Candidates and their supporters should campaign within the provisions of our laws. Law enforcement agencies should strictly protect our democratic process to allow a free, clean, fair and credible GE 15.

According to democratic theory, one of the ways through which rakyat can prevent corrupt elite behaviour is electoral choice. A good political process with integrity can accelerate positive change and fighting corruption is tightly linked and a vital aspect of good governance.

After this election, the winning party is expected to form a government with integrity, and together with the people, fight corruption to the fullest. The daunting challenge for Malaysia is to eradicate the evil of corruption from this land. Corruption is the mother of all evils.

Datuk Seri Akhbar Satar holds professorial chair at Institute of Crime & Criminology, HELP University