Sesiapa yang membuat petisyen pilihan raya atas isu dakwat kekal perlu sedar kekangan dalam S.32(b) Akta Kesalahan Pilihan Raya 1954. Masalah utamanya kerana sikap hakim di Malaysia yang memandang sepi pandangan Lord Denning dalam kes Morgan vs Simpson. Lord Denning telah menyatakan bahawa:
1. Jika sesuatu pilihan raya telah dijalankan dengan begitu teruk yang mana secara amnya tidak menurut peraturan pilihan raya, pilihan raya itu akan terbatal samada perlanggaran itu menjejaskan atau tidak menjejaskan keputusan pilihan raya.
2. Jika sesuatu pilihan raya telah dijalankan menurut peraturan dan undang-undang, pilihan raya itu tidak boleh dibatalkan atas alasan berlaku sedikit perlanggaran peraturan dan undang-undang tersebut, jika perlanggaran itu tidak menyentuh keputusan pilihan raya.
3. Jika sesuatu pilihan raya itu telah dijalankan secara amnya telah mematuhi peraturan pilihan raya, tetapi telah berlaku sedikit perlanggaran peraturan pilihan raya itu, dan akibat daripada perlanggaran itu telah menjejaskan keputusan pilihan raya maka pilihan raya itu akan dibatalkan.
In Morgan and ors v Simpson and anor [1974] 3 All ER 728], Lord Denning held as follows: “Collating all these cases together, I suggest that the law can be stated in these propositions: 1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected, or not. That is shown by the Hackney case, where two out of 19 polling stations were closed all day, and 5000 voters were unable to vote. 2) if the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls – provided that it did not affect the result of the election. That is shown by Islington case where 14 ballot papers were issued after 8 pm. 3) But, even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls – and it did affect the result – then the election is vitiated. That is shown in Gunn v Sharpe where the mistake in not stamping 102 did affect the result.”
In Islington’s case the court held as follows:
“In their opinion an election ought not to be held void by reason of transgressions of the law by a returning officer or his subordinates where the election was, in substance, conducted in accordance with existing election law, and the result, as regards the return of one candidate over the other was not shown to have been affected by such transgressions; but if the transgressions were such that the election was not fairly conducted, or if it was open to doubt whether it was so conducted and whether the return of a candidate was affected by them then the election ought to be declared void” (see pg 210 line 12-25)
In Gunn v Sharpe Willis J narrated the facts of Hackney’s case as follows:
“The facts of In Re Hackney Election Petition; Gill v Reed 31 LT 69 of course show errors so extensive that the court invalidated the election irrespective of whether or not the result of the election would have been affected. A possibility albeit remote was a 50/50 division of the lost votes. In declaring the election void, Grove J said at p. 71:
“Among the principles of the [Ballot Act 1872] is one that there should be districts arranged for the convenience of the electors at which they might have on the polling day suitable machinery for giving their votes to the candidates to whom they chose ...to give votes, ...”
At p. 72
“An election is not to be upset for an informality or for a triviality... The objection must be something substantial, something calculated really to affect the result of the election... the judge is to look to the substance of the case and to see whether the informality is of such a nature as to be fairly calculated in a rational mind to produce a substantial effect upon the election...”
We find that the observations of Grove J provide us with a valuable guide to our approach to this case” (see pg 817 para E-H)
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