Apex court dismisses BN candidate’s appeal, Mas Ermieyati remains Masjid Tanah MP
PUTRAJAYA: Datuk Mas Ermieyati Samsudin remains as Masjid Tanah MP after the Federal Court here yesterday dismissed Barisan Nasional (BN) candidate Abdul Hakim Abdul Wahid’s appeal to nullify her victory in the 15th General Election (GE15).
A three-member bench comprising Justices Tan Sri Nallini Pathmanathan, Datuk Mary Lim Thiam Suan and Datuk Abu Bakar Jais held that the Election Court judge was not wrong in his finding when dismissing Abdul Hakim’s election petition.
Reading out the decision, Justice Nallini said the appellant’s counsel submitted that the Election Court judge had fallen into error in failing to infer from the available evidence that an offence of bribery under Section 10(a) of the Election Offences Act 1954.
“However, the counsel for the respondent (Mas Ermieyati) contends otherwise. The pivotal point turns on the term ‘induce any elector or voter to vote or refrain from voting’.
“We were urged to infer that inducement within the meaning of Section 10(a) can be deduced from the mere act of money being given to a voter post-voting, without more.
“We make it clear that we find any act of monies being handed out for votes or the like, as being abhorrent and something no court would condone in any event,” she said.
Justice Nallini further said Section 10(a) expressly requires evidence of inducement means that the voter has to be persuaded or led to vote or not vote by some act or promise of money or other consideration.
“In this appeal, there is no evidence of the voters being persuaded or influenced or induced to vote or not to vote or to vote in any particular manner. There is no extrinsic evidence from which such inducement can be inferred,” she said.
Justice Nallini also questioned whether the act of paying money to voters had any influence on their decision to vote, given that the voters had already voted and were not promised payment or aware of any money being distributed behind the restaurant.
“Put another way, in the absence of any evidence of a promise of money or other consideration at any time, present or future, preceding the act of voting, can it be said that the voter was induced to vote by the respondent or its agent?
“We do not think so. This is because the Act itself requires the element of inducement to be made out. There can be no bribery under Section 10(a) without the element of inducement being established,” she added.
On the matter of ‘agent’, Justice Nallini said the court was content that Akmal Zahin Zainal Zahir and Noorashimah Nordin were indeed acting as agents on behalf of the respondent.
“However, in the absence of the elements of inducement in Section 10(a) and corruptly influencing in Section 8 the offences of bribery and treating are not made out. We are of the view that the Election judge was also incorrect in drawing an adverse inference against the appellant in relation to the absence of Akmal and Noorashimah.
“It was clear that the appellant tried very hard to procure these witnesses. Any such inference should, if at all, have been drawn against these witnesses. However, even if the Election judge had done so, this would not have filled in the fundamental gap of a lack of evidence of ‘inducement’,” she said.
On Nov 10, 2023, Abdul Hakim submitted a notice of appeal to the Federal Court due to his dissatisfaction with the ruling of judge Datuk Abu Bakar Katar on his election petition.
On Oct 27 the same year, the Melaka Election Court upheld the victory of Mas Ermieyati as Masjid Tanah MP, citing Abdul Hakim’s insufficient evidence of bribery during the GE15 campaign.
On Jan 3 last year, Abdul Hakim filed the election petition alleging bribery in the form of cash and feasts to secure votes during GE15.
In GE15, Mas Ermieyati won with 25,604 votes, defeating Abdul Hakim (21,193 votes), Mutalib Uthman (7,445 votes) and Handrawirawan Abu Bakar (507 votes).
Earlier, lawyer Datuk Mohd Hafarizam Harun, representing Abdul Hakim, argued that the Election Court judge had erred when he ruled that the appellant had failed to prove the case beyond reasonable doubt.
He said the judge failed to consider the testimony of three witnesses who received money from two agents of the respondents (Akmal and Noorashimah) in the compound of a house in Masjid Tanah on the polling day on Nov 19, 2022, and the feast held on Dec 3, 2022.
“There were acts of bribery and graft under Section 32(c) and Section 10 of the Election Offenses Act, as well as bribery in the form of feasting under Section 8 of the same Act,” said the lawyer.
Lawyer Yusfarizal Yusoff, representing Mas Ermieyati, argued that the Election judge made the correct decision based on facts and the law in dismissing the appellant’s petition.
“The Election Court judge ruled that the two individuals alleged to have committed bribery were not agents of the respondents, and the appellant failed to prove that bribery money was given to three appellant witnesses, who are registered voters in the area (Masjid Tanah),” he said, adding that the judge also ruled that the feast held by the respondent after the GE15 was not intended to gain votes. — Bernama