Sorting out the Election Courts
With the elections coming, Malaysians are starting to take an interest in politics again. Well, at least, those who aren't put off by fraud and the apparent constancy of the ruling regime.
One interesting bulwark in preventing election fraud is the special courts set up to hear cases stemming from disputed elections.
The reason this is interesting is that, at least in the past, candidates have sometimes had a half-decent chance to have an unfair result overturned.
Election courts are a strange creature in the Malaysian judiciary. They are created to hear individual cases for individual elections, assuming a challenge to the election results can make it far enough in the legal process.
Their position in the court hierarchy is not entirely clear. Their decisions cannot be appealed, and each case is heard by one judge sitting alone.
The Malaysian judiciary is not completely corrupt; even if only one in ten judges is clean, that means there is a 10% of a fair result for each election case, meaning that at least one out of ten cases will be decided fairly.
Hence, there have been cases in the past where an election court ruled that certain improprieties had occurred, and ordered that the result of the election be overturned, and either the other candidate given the win, or a new election held.
Of course, the room for these courts to manoeuvre is rather limited, because the election laws have been worded in a rather rigid and (if you ask me) anachronistic manner.
It is assumed that political parties play little to no role in the electoral process, and mountains of paperwork are required for anything to be done in the electoral process — a single jot or tittle out of place means your candidacy can be invalidated (as occurred in one state constituency in Johor, back in 2004) or your court case thrown out.
Nevertheless, these courts do have room to manoeuvre. One thing not tying them down is binding precedent — election courts are unique in that they do not set any binding precedent, and thus each court is free to interpret the election laws as it likes.
Old election cases may be cited as persuasive precedent, but ultimately, it really is up to the judge. Thus, bad judges can ignore good decisions, and likewise, good judges can ignore bad decisions.
But is this right? Why should election courts be set apart from the normal court hierarchy? This really does not make much sense to me.
This is of course not a top-priority reform — if you ask me, reducing the red tape and ridiculous legislation involved in the electoral system should be far closer to the top of our list — but it would be much better if a normal High Court could hear the case, and appeals be made to the Court of Appeal, and so forth.
I have not seen a good reason to maintain the present system of election courts. There is no certainty in the law, and thus no rule of law, when each judge is free to take a different interpretation of the law, solely on arbitrary grounds.