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Court told: Shafie not fit to be elected

18th April, 2018


KOTA KINABALU: A lawyer here is trying to prevent, in the name of public interest, a prominent opposition politician from contesting in the upcoming elections on May 9.

Datuk Mohd Ainal HajiAbdul Fattah filed for a judicial review in the High Court here to stop Datuk Seri Haji Mohd Shafie Apdal, the president of the opposition Parti Warisan Sabah, from voting or contesting in the elections.

He named the Election Commission as the first defendant, and Shafie as the second defendant. The case will be heard this May 2.

Shafie, the former Minister of Regional and Rural Development, was sacked in 2015. He has since been arrested for and implicated in several corruption and embezzlement cases involving government funds to the tune of hundreds of millions of Ringgit.

Ainal, 68, and a member of the UMNO Semporna division once headed by Shafie cited the Election Offences Act which prohibits persons in Shafie position from voting or contesting in the election to seek public office.

He wanted the Court to, amongst others, prevent Shafie from voting or contesting, and that any result pertaining to his election be declared null and void.

Ainal is also the secretary of UMNO Zone 6 which covers Semporna, Silam, Tawau, and Kalabakan.

He said, the first respondent is the SPR and is a commission set up for the purpose of ensuring fair equitable operations in undertaking the Malaysian General Elections. Its establishment is mandated by executive order of Malaysian Prime Minister Najib Razak. The first respondent falls under the purview of the Prime Minister’s Department. Under Article 114 of the Federal Constitution, the first respondent is empowered to “conduct the election to the House of Representatives (Dewan Rakyat, the lower House of Parliament) and the Legislative Assemblies of the States”. The first respondent has the power to delimit constituencies, revise the electoral roll of registered voters, and regulate the manner in which election is conducted. Apart from regulating elections, the first respondent’s duties include reviewing the boundaries of the Parliamentary and state Constituencies, holding by-elections and carrying out registration exercises.

In his filing, Ainal described Shafie as a native of Semporna who started his political career with the USNO. He joined UMNO after USNO dissolved in 1994. Shafie was in 1995 elected to Parliament as an UMNO member, for the seat of Semporna. He was appointed a parliamentary secretary before becoming Deputy Minister of Housing and Local Government in 1999. From 1999 to 2004 he was Deputy Minister for Defence. After the 2004 election, he was appointed Minister of Domestic, Trade and Consumer Affairs in Prime Minister Abdullah Ahmad Badawi’s Cabinet and was later given the Ministry of Unity, Culture, Arts, and Heritage. On 10 April 2009, he became the Minister of Rural and Regional Development in the first Cabinet of Prime Minister Najib Razak.

On 28 July 2015 Shafie was removed in the Cabinet reshuffle thus losing his Rural and Regional Development portfolio. Following this, he formed Warisan.

Ainal said he believed that Shafie will stand as a candidate in the Parliamentary and State Elections of Sabah on May 9 which will breach Section 10 of the Election Offences Act of 1954.

He cited numerous statements by the Malaysia Anti-Corruption Commission (MACC) and various newspaper reports to back his contention that allowing Shafie to vote or contest would be in breach of the law.

Among the cases mentioned in Ainal’s application: n Shafie has been arrested over a probe into the alleged skimming of RM1.5 billion meant for rural development projects; he was detained on Oct 19, 2017 by the MACC after four hours of questioning. He was arrested in MACC’s probe into the projects under the Rural and Regional Development Ministry. The projects were implemented between 2009 and 2015 when Shafie headed the ministry. n According to media reports, the RM1.5 billion funds were intended to finance projects to improve basic amenities (such as upgrading of water and electricity supply, repair of roads, and food programmes) for the underprivileged in Sabah. n It was reported that about 350 projects under the Rural and Regional Development Ministry are being investigated by the MACC over allegations of embezzlement. MACC has frozen some RM170 million in bank accounts and assets of companies involved in some 70 projects (out of the original list of 350 projects. n From the foregoing newspaper reports, Shafie stood accused of massive fraud during his time with the Government and his tenure as a Federal Minister. He had abused his position to privately amass a huge treasure chest of funds amounting to at least RM7 million. The contractual obligations entered into by the Ministry when the second respondent was the Minister is invalid ab initio in that its conclusion amounts to conduct that does not comply when an organ of state contracts for goods or services for it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.

The actions of Shafie involve unprecedented constitutional violations that have injured and have caused continuing injury to the citizenry of Sabah and Malaysia; that he has not faithfully served the interest of the people; nor acted in the best interest of the people. Instead, Shafie was accused of pursuing personal enrichment, while inflicting ‘untold harm’ on Malaysia, and endangering the rule of law.

The financial violations committed by the second respondent undermine the trust that the Malaysian people and the citizens of Sabah are entitled to have in the Government of Malaysia. It is fundamental to the system of Government in Malaysia that the elected representative such as the second respondent always act in the singular pursuit of the liberty, security, health and well being of the people of Sabah all of which were abandoned in the financial scandal involving the Ministry of the second respondent.

The violations committed by the second respondent has damaged and harmed the economy of the State of Sabah and has caused financial harm to the people of Sabah by unlawfully depriving them of economic development. The second respondent violations violently offend the sacred principles that the Government is or ought to be instituted for the common benefit, protection and security and not for the particular emolument or advantage of any particular man, family or set of men.

The violations committed by the second respondent implied that the second respondent used his clout in the Ministry and as the Minister to extract from government whether lawfully or unlawfully maximum concessions, waivers, exemptions and variances in respect of requirements imposed by the law and in consequence thereof the Applicant including the people of Sabah would and have suffered the consequences including but not limited to lost revenue and comprised enforcement of laws including laws on the protection of the environment and land use regulation.

“The financial losses of the Ministry and the missing funds have on the balance of probabilities been used by the second respondent in contravention and in breach of Section 10 of the Election Offences Act 1954.

“In the premises, the second respondent is not a fit and proper person to be an elector or voter or be elected at any election including the 14th General Election.”

Ainal was represented by Counsel Marcel Jude Joseph.

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