An election petition, if successful, could nullify the result and a re-election would be ordered.
Datuk Peter Anthony, whose nomination to contest the Tenom seat was rejected on Saturday by the returning officer, has no quick legal fix to get back into the race, says a lawyer familiar with election laws.
Sabah Law Society (SLS) president Roger Chin said the Parti Kesejahteraan Demokratik Masyarakat (KDM) president’s only option is to file an election petition after the official results are gazetted.
By the Election Regulations (1981), any disputes over the returning officer’s decision are only resolved through election petitions – there is no room for a judicial review, he added.
Chin said the idea of seeking a judicial review would be considered a wrong process of law and would be struck down by the courts.
“The law is very fussy. The proper avenue is an election petition and not a judicial review,” he said.
He added that the election petition, if successful, could nullify the result and a re-election would be ordered.
Anthony, who is appealing a Kuala Lumpur Sessions Court decision earlier this year to fine him RM50,000 and jail him for three years for a corruption offence, was rejected by the returning officer (RO) on the advice of Election Commission headquarters.
He said he had obtained a stay order on his conviction pending the appeal. He claimed that his nomination papers had been initially accepted but were later rejected.
That rejection led to a riot by his supporters at the Tenom nomination centre on Saturday. Viral videos showed them trying to force their way into the hall before the Light Strike Force personnel fired teargas. Anthony, who later lodged a police report over the rejection of his nomination, said he was perplexed as to why the EC pulled back his nomination papers despite approving his candidacy earlier.
A police report was also lodged over the riot, which led to Anthony being arrested at midnight on Saturday only to be released the next morning on police bail, said Sabah Police Commissioner Comm Datuk Idris Abdullah.
He added that police conducted an investigation under Section 147 of the Penal Code for rioting and Section 24A (2) of the Election Offences Act, which states that no person shall, on nomination day or days, wait or loiter within a distance of 50m from the limit of any place of nomination.
Meanwhile, SLS’ Chin said the nomination process for the general election was bound by the Elections Regulations (1981), which have stringent rules.
“Nomination papers can be rejected by the returning officer if candidates are not capable of or are disqualified from standing in the election or if their nomination papers are not in compliance with the Elections (Conduct of Elections) Regulations 1981 (ECER) made under the Elections Act, 1958.
“If any nomination paper is rejected, the returning officer (RO) shall inform the candidate, his proposer, or seconder of his decision and the grounds for rejection.
“The decision of the RO is final and shall not be questioned in any court. However, any person aggrieved by the RO’s decision may still challenge it by presenting an election petition under section 32(b) of the Election Offenses Act 1954,” he said, quoting election rules and regulations.
On the claims that the RO had already been ready to announce the names of candidates in Tenom, Chin said personally that the decision was not made by the RO as he had not yet announced it.
“The RO can change his mind up to the moment the final decision is made,” he added.
Chin, however, said what was more interesting was the interpretation of the stay order obtained by Anthony on his conviction.
“This is actually the million-dollar question. A stay renders an order inoperative without revocation (of the conviction).
“The stay does not revoke the conviction and renders it inoperative, so for nomination purposes, is the stay order sufficient?” he added. – The Star