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By Mihar Dias Copyright (C) August 2023
The display of a marked ballot paper by Caretaker Kedah Mentri Besar Datuk Seri Muhammad Sanusi Md Nor during the recent state elections has sparked discussions about its legality and potential ramifications. The lingering question is, will he be charged?
Two legal experts interviewed by The Star reportedly weighed in on the matter, asserting that Sanusi did not commit any election offence by exhibiting his ballot paper.
Tan Sri Azhar Azizan Harun, a respected legal practitioner, clarified that the act falls within legal boundaries, as there is no law prohibiting individuals from voluntarily revealing their own votes.
Azhar's analysis of Section 5 of the Election Offences Act 1954 reveals that the provisions contained therein primarily pertain to candidates, agents, and others who have access to sensitive information about votes or voters. The section does not address a situation in which a voter willingly discloses their own vote. Candidates and agents are bound by an oath of secrecy when involved in proceedings with ballot papers, yet no such obligation extends to voters.
"Ballot selfies," the practice of taking photographs with marked ballot papers, have gained traction in certain regions, such as the United States.
Notably, in 2014, New Hampshire in the US introduced legislation specifically banning such selfies, but this law was subsequently challenged in the Federal Court. The court ruled that ballot selfies are protected under the First Amendment rights to free speech and can only be restricted under rigorous constitutional scrutiny.
Asiah Jalil, another legal expert, reinforced the perspective that Muhammad Sanusi's act does not constitute a faux pas. She pointed out Section 39 of the Election Offences Act, which safeguards the privacy of electors' votes during election petitions. When a petition is filed, individuals who have voted are not required to disclose their voting choices. Asiah underscored that this section only applies during election petition proceedings and does not prevent a voter from willingly sharing their vote.
The history of Malaysian politics also provides examples of politicians who have displayed their ballot papers in public.
In 2019, Umno deputy president Datuk Seri Mohamad Hasan exhibited his marked ballot paper during the Rantau state by-election.
Similarly, in 2013, Barisan Nasional candidate Tengku Zaihan Che Ku Abdul Rahman shared his ballot papers with reporters during the Besut by-election. No punitive action was taken in either case.
In conclusion, the legal analysis of Section 5 and Section 39 of the Election Offences Act by esteemed legal practitioners indicates that Muhammad Sanusi's action of showing his ballot paper to the press does not amount to an election offence. The precedent set by other politicians who exhibited their ballot papers without repercussions further underscores the absence of legal prohibition in such cases.
As society adapts to changing electoral dynamics and practices like "ballot selfies," the discussion on the balance between voter privacy and free expression remains a pertinent one.
Finally, under such circumstances, it would be a real surprise if he was charged by the police who, in recent days, have summoned the MB for an investigation.
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