Finality Clauses In Election Law:A Constitutional Dilemma
Finality clauses or ouster clauses are notoriously known as laws that restrict judicial power and had been subjected to constitutional challenges. They exist in various statutes and legislations including election laws. With the coming of the 15th General Election and the prospect of candidates filing election petitions, there may be a possibility that the constitutionality of the finality clauses or ouster clauses in Malaysia’s election law regime will be challenged.
In this alert, our Dispute Resolution associate, Thenesh Anbalagan discusses the constitutional dilemma surrounding the finality clauses from the perspective of Malaysia’s election law.
Finality clauses are provisions inserted into a statute or legislation which indicate that a decision made by a public authority is final. The intended effect of such clauses is to prevent a public authority’s decision from being questioned — even if such a decision is not made in accordance with the law.
Despite its apparent arbitrariness, finality clauses have found their way into various legislations including election laws. This can be seen in Section 41 of the Election Offences Act 1954 (EOA 1954) and Regulation 25(10) of the Elections (Conduct of Elections) Regulations 1981 (ECER 1981) (collectively referred to as “the Finality Clauses”).
These Finality Clauses seek to clothe decisions relating to the rejection of ballot papers with finality. This is ironic given that ballot papers being the manifestation of democracy ought to be accepted, if valid; and be rejected, if invalid, in order to ensure the legitimacy of an election. In light of the notion of democracy and the present development of judicial power, it is high time to consider the constitutionality of these Finality Clauses. This question was the subject of determination in a recent election case of Suppayah Solaimuthu v Chiong Sen Sern & Ors  MLJU 1185.
During the 2022 Johor State Elections, Suppayah (the Petitioner) of Barisan Nasional (BN) lost by a slim majority of 137 votes to Chiong Sen Sern (the 1st Respondent) of Parti Keadilan Rakyat (PKR) for the Bukit Batu state constituency.
Consequently, Suppayah filed an election petition at the Election Court to challenge the results of the Bukit Batu election (the Election Petition). He contended that there were ballot papers favouring him that were unlawfully rejected by the presiding officers merely because there were ink smudges. His position was that the ink smudges do not render these ballot papers invalid.
The Returning Officer responsible for overseeing the Bukit Batu election and the Election Commission as Respondents were also named in the Election Petition as the 2nd and 3rd Respondents respectively. They were represented by the Attorney General Chambers (AGC).
The Finality Clauses
Chiong and AGC respectively raised a preliminary objection against the Election Petition. Their common objection was that the decision of the presiding officers in rejecting the ballot papers was final and cannot be questioned. They relied on the Finality Clauses which reads as follows: -
Section 41 of the EOA 1954: -
On an election petition the decision of a returning officer or presiding officer, whether or not a ballot paper shall be rejected, under any written law relating to the election, shall not be questioned.
Regulation 25(10) of the ECER 1981: -
The decision of the presiding officer, whether or not any ballot paper shall be rejected, shall be final.
Chiong and AGC further relied on the case of Mahari bin Endut v Dato’ Hj Mat Razali bin Kassim  5 MLJ 153 where the Federal Court held that the Finality Clauses ‘provided finality in an election process’.
Suppayah contended that the Finality Clauses do not have the effect of ousting the jurisdiction of the court. Even if there is such an effect, following the recent Federal Court decision of Dhinesh Tanaphll v Lembaga Pencegahan Jenayah  3 MLJ 356, the Finality Clauses would be unconstitutional pursuant to Articles 4(1) and 121(1) of the Federal Constitution. In response, Chiong and the AGC argued that the Finality Clauses are pre-Merdeka laws, hence they were immune from a challenge pursuant to Article 4(1) of the Federal Constitution.
The Decision Of The High Court
According to the High Court, ballot papers can only be rejected in the exhaustive circumstances prescribed under Regulation 25(7) of the ECER 1981. Thus, presiding officers would be acting in excess of their power if they reject a ballot paper for reasons beyond the statutorily prescribed circumstances.
Furthermore, the Court emphasised the importance of votes as the defining characteristic in an election. This fortifies the need to safeguard and ensure voters’ confidence in the integrity of an election. As such, on the issue of the Finality Clauses, the High Court appears to have expressed its disagreement with the proposition taken in Mahari Endut in the following manner:-
‘…it is difficult to accept as correct the proposition that the courts should suborn the integrity of the election process to the need for speedy determination of election petitions.’
Notwithstanding that, the High Court allowed the preliminary objection and ruled that due to the application of the Finality Clauses ‘the decision of a presiding officer to reject a ballot paper cannot be challenged in an election petition’. The Court reasoned that: (i) the Finality Clauses are pre-Merdeka laws hence, Article 4(1) of the Federal Constitution had no application, and (ii) it was bound by the decision in Mahari Endut which was a decision of a superior court. On these basis, Suppayah’s Election Petition was struck out.
The Constitutional Dilemma
The decision in Suppayah Solaimuthu, illuminated the significance of the people’s votes in an electoral process and the need to safeguard the integrity of electoral processes — a timely reminder that democracy means the people’s power. However, it is rather unfortunate that the High Court’s voyage of justice ceased prematurely on the basis of the “preMerdeka immunity” and the doctrine of stare decisis without giving due consideration to the Dhinesh Tanaphll case which is a decision of the Federal Court post Mahari Endut. A credible argument may be put that the High Court’s decision is erroneous, primarily because the Finality Clauses cannot restrict the judicial review power of the Courts. There are a number of reasons to support this view.
Finality Clauses Versus Ballot Papers
Unlike ouster clauses, the wordings of Finality Clauses often do not outright exclude the judicial review power of the Courts in its entirety. Thus, notwithstanding such clauses, the Courts may nevertheless under its supervisory jurisdiction examine if the decision of a public authority is tainted with illegality, procedural impropriety, or irrationality.
However, if the Finality Clauses bring about the same effect as ouster clauses, then such Finality Clauses would be unconstitutional. The Court’s being the guardians of the Federal Constitution cannot have its judicial review power ousted altogether by the legislature or the executive. In this regard, the Finality Clauses when read together clearly carry the effect of ouster clauses. This is plain and obvious from the use of the phrase ‘shall not be questioned’ in Section 41 of the EOA 1954. Such ouster effect of the Finality Clauses would be in breach of the doctrine of separation of power and offend the principle of judicial independence. In light of the landmark decision in Dhinesh Tanaphll, the Finality Clauses are void pursuant to Articles 4(1) and 121(1) of the Federal Constitution. The issue of the pre-Merdeka immunity will be addressed under a separate heading below.
It is critical to also note that, ballot papers represent the very voice and willpower of the people. They are the cornerstone of an electoral process. Any wrongful rejection and/or acceptance of a ballot paper constitute a violation of the people’s right to vote. As such, the existence of the Finality Clauses in this area runs contrary to the democratic process which our nation is built upon and thus cannot be permitted to escape judicial supervision.
It is also incorrect to suggest that pre-Merdeka laws are immune from being struck down as unconstitutional. A preMerdeka law like Section 41 of the EOA 1954 cannot override the provisions of the Federal Constitution — the supreme law of the land. In fact, the Courts are empowered by Articles 162(6) read together with 162(7) of the Federal Constitution to strike down pre-Merdeka laws as unconstitutional; or the very least modify such laws to bring them in accord with the Federal Constitution. It is instructive to refer to the dictum of the Federal Court in Superintendent of Land and Survey Department Kuching-Divisional Office & Anor v Ratnawati bt Hasbi Mohamad Suleiman  2 MLJ 553:-
‘Prioritising the pre-Merdeka law over art 13(1) of the Federal Constitution is, in my respectful view, to completely disregard the supremacy of our founding document.’
Furthermore, the law conferring presiding officers the power to reject ballot papers only came into force through an amendment to Section 41 of the EOA 1954 in 1990.2 Prior to 1990, Section 41 of the EOA 1954 only cover decisions of returning officers. Thus, Section 41 as it currently stands, is not in fact a pre-Merdeka law and can be struck down as unconstitutional. Hence, even if the notion of “pre-Merdeka immunity” is correct, it does not apply in the present case.
The case of Suppayah sheds a light on the dynamics and power struggle between the importance of ballot papers and the necessity of finality/ouster. Clearly, the decision in Suppayah was a missed opportunity to clarify and correct the position of the law concerning Finality Clauses in Malaysia’s Election Law regime. Nevertheless, the analysis above tells that the constitutionality of the Finality Clauses will someday be open to challenge. As for now, the constitutional dilemma continues.
Authored by Thenesh Anbalagan, an Associate with the firm’s Dispute Resolution.
17 November 2022