The Forged Ballots: An End in Sight?

Let us trace back the scandal that has rocked the Malaysian Bar with the discovery of forged ballots back in 1 December 2006. The three scrutineers appointed under the Legal Profession Act to count and verify the ballots had discovered 50 forged ballots. Despite having no explicit statutory power to do so, the scrutineers further went on to declare the Bar elections null and void as the scrutineers claimed they had no way to identify whether there were more forged ballots.However, the forged ballots were very plainly forged and were meant to be detected. This is because the serial numbers on each forged ballot was made to be way in excess of the total number of ballots. Each ballot could also be verified by matching it with a counterfoil which had a corresponding stamp of the Bar Council. This was not a case where the forged ballots were meant to tilt the votes. Rather, this was a case of intentionally embarrassing the Malaysian Bar. Therefore, the Bar Council urged the scrutineers to continue the verificationby matching the counterfoils.The scrutineers however refused to do so, stating that the forged ballots were now presently under police investigation and two of the scrutineers stated that they would require a Court Order. As stated by Dr Yaacob, one of the scrutineers, “…but our position is clear — let the court decide. If the court decides after hearing arguments from both sides that the scrutineers must proceed with our task, both of us will work overnight until the counting is done.

This is a very bold move by the Bar Council and one which should be applauded. I hope that it finally brings some finality to this deplorable state of affairs.

An action was then filed on 6 December 2006 by Foo Ton Hin seeking essentially that the scrutineers verify the authenticity of the ballots.

After a flurry of applications filed by various election candidates to intervene in this action, solicitors for Dr Yaacob now filed an action to strike out the entire action. This appears to be in direct conflict with Dr Yaacob’s previous statement of allowing the court to decide. The merits of the case wouldn’t even be decided upon if Dr Yaacob’s striking out application were to be allowed at this early stage.

The hearing of the striking out application then started proper with Counsel for Dr Yaacob arguing that Foo Ton Hin had no locus standi to bring such an action, relying on the primary ground that Foo Ton Hin was merely an ordinary member of the Bar. He was not one of the election candidates and he had failed to show any special damage over and above the other members of the Bar. I was in the public gallery that day, and I admit that the arguments advanced were compelling. I was looking forward to see how the other respondents would answer to these submissions.

Counsel for both the Malaysian Bar and Foo Ton Hin then made their arguments in reply to the striking out application. The line of argument pursued by Counsel was that if only the 34 people who stood for elections have locus standi, then that means the entire electorate particularly the 3,370 who actually cast their votes have no say at all. Such an argument cannot be right.

A final reply was then made in support of the striking out.

On 15 February 2007, the Court made the decision to strike out Foo Ton Hin’s action, holding that he lacked the locus standi to intiate such an action.

The Bar Council planned to hold an emergency meeting to decide on the next course of action to resolve this issue of the elections which were still in stalemate. Would the Council decide to call for fresh voting? Rumours were rife that the Council would appoint a new set of 3 scrutineers to carry out the verification exercise.

A press statement was then released on 23 February 2007, and the Bar Council stated that its priority was in the completion of the unfinished tasks of the election to ascertain the whole truth of the matter. No details were made regarding a the appointment of a new set of scrutineers however.

On 26 February 2007, we discover that three new scrutineers were appointed and they had carried out the verification of the ballots and had declared the results for the Council elections. This verification was carried out in the presence and with the support of the police.

This is a very bold move by the Bar Council and one which should be applauded. I hope that it finally brings some finality to this deplorable state of affairs. I believe that members of the Bar and the public have grown weary of this long-drawn affair. However, the Legal Profession Act has no provisions to allow for the appointment of a fresh set of scrutineers, so we are now treading on new ground. I cannot help but remain pessimistic that this decision will be challenged.


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