Friday, January 16, 2009

In defence of Public interest - an appeal

http://www.malaysianbar.org.my/administrative_law/the_role_of_public_interest_litigation_in_promoting_good_governance_in_malaysia_and_singapore.html.


The Appeal to the Appeal Court by 29th January, 2009 in the defence of Public Interest
as the two High Court cases were struck out by technical points of Federal Constitution 118 and S38 of Election Offences Act [Act 5.]

Joshua Kong


There are the major documents submitted for the TWO High Court
case in Kota Kinabalu on General Election 2004 and General Election 2008 (filed on 25th February, 2008 and 25th April, 2008)
K21-10-2008 and K21-14-2008 (respectively).

1. Writs of Summons 1- for GE 2004 - 25th February 2008;
2. Writs of Summons 2 - for GE 2008- 25th April, 2008;
3. Affidavit in Opposition 1 - against strike out application by SFC - GE 2004 - 14th Nov 2008 (15 pages plus 5 exh).
4. Affidavit in Opposition 2 - against strike out application by SFC - GE 2008- 25th Nov 2008 (14 pages plus 9 exh).

5. Affidavit in Support 1 - for Writ 1 - 2nd Dec 2008 (5 pages plus 1 exh).
6. Affidavit in Support 2 - for Writ 1 - 9th Dec 2008 (4 pages plus.

7. Submission 1 (preliminary) for Writ 1 - 4th Nov., 2008 together with schedule of Analysis of arithmetic discrepancies.

8. Submission 2 (preliminary) for Writ 2 - 14th Oct 2008 2 pages together with a list of IC and faulty roll.

9. GE2004 of seats with major arithmetic discrepancies in Ballot papers issued for Parliament & State seats.

10. GE 2004 & 2008 Affidavit in reply to 1st Defendant's Affidavits

11. My skeletal submission on 13th January, 2009 of 21 pages together with 38 documents.
together with Final Submission of three pages with a document.

The cases were consolidated on 30th December 2008.

The strong point is Public Interests when these cases were not started as Election Petitions.

Joshua Y. C. Kong
Plaintiff acting in person.

28 comments:

  1. WRIT OF SUMMONS
    MALAYSIA
    IN THE HIGH COURT OF SABAH AND SARAWAK AT KOTA KINABALU
    BETWEEN
    JOSHUA KONG YUN CHEE
    suing as voter …PLAINTIFF
    AND
    ELECTION COMMISSION CHAIRMAN.......................................… 1st DEFENDANT
    NATIONAL REGISTRATION DEPARTMENT DIRECTOR, SABAH…2NDDEFENDANT
    GOVERNMENT OF MALAYSIA ...................................................…3RDDEFENDANT
    YANG AMAT ARIF TAN SRI DATUK SERI PANGLIMA RICHARD MALANJUM, P.S.M., S.P.S.K., S.S.A.P., S.I.M.P., S.P.D.K., P.G.D.K., CHIEF JUDGE OF THE HIGH COURT IN SABAH AND SARAWAK IN THE NAME AND ON BEHALF OF SERI PADUKA BAGINDA YANG DIPERTUAN AGONG.
    To:-
    Election Commission Chairman
    Kompleks Kerajaan Persekutuan Sabah
    Jalan UMS, Menggatal.

    National Registration Department Director
    Kompleks Kerajaan Persekutuan Sabah
    Jalan UMS, Menggatal.

    Government of Malaysia
    Federal Secretary Office
    Kompleks Kerajaan Persekutuan Sabah
    Jalan UMS, Menggatal.

    I COMMAND you that within 10 days after the service of this Writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you at the suit of Joshua Kong Yun Chee of 26 Taman Iramanis, Lorong 5, off Jalan Lintas, Kolombong, Inanam, Sabah. Take notice that in default of you so the doing the Plaintiffs may proceed therein the judgment and execution.

    WITNESS
    Registrar of the High Court in Sabah and Sarawak the day of 2008.


    ……………………………… …..………………………………
    Joshua Kong Yun Chee - Plaintiff At Kota Kinabalu.
    Memorandum to be subscribed on the Writ
    This Writ may not be served more than six (6) calender months after the above date unless renewed by order of Court.
    The Defendant (or Defendants) may appear hereto by entering an appearance (or appearances) either personally or by an advocate at the Registry of the High Court.
    A Defendant appearing personally may, if he desires, enter his appearance by post, and the appropriate forms may be obtained by sending a postal order for RM 10.00 with an addressed envelope to the Deputy Registrar, High Court at Kota Kinabalu, Sabah.


    STATEMENT OF CLAIM
    1. The Plaintiff is a Malaysian citizen residing in Sabah and a voter who voted in General Elections 2004.
    2. The 1st Defendant was at all material times the Election Commission Chairman who conducted the General Elections 2004
    3. The 2nd Defendant was at all material times the department for the issuance of Identity cards.
    4. The 3rd Defendant was at all material times responsible overall in the administration of the nation.
    5. I am filing this case in response to the Election Commission Chairman and also the Prime Minister whose legitimacy is challenged asking anyone not happy with the electoral processes to do so. I had also written a press release on the General Elections 2004's irregularities dated 23rd March 2004 to Daily Express marked "JK-124" but not published and a letter on that sent by facsimile in April 2004 marked "JK-125"
    6. There were serious misconduct and discrepancies of the 11th National and the 10th Sabah General Elections held on 21st March 2004 by the Elections Commission, Malaysia.
    7. Amongst many items on misconduct and irregularities on General Elections 2004 as documented in the two Police Reports by Joshua Kong marked "JK-1" to "JK-95" (not acted by the Police DiRaja Malaysia), the major discrepancies are in the total number of ballot papers issued at the poll (including postal ballot papers issued to voters and rejected ballot papers but excluding spoilt ballot papers) and the faulty electoral rolls aided by the National Registration Department.
    - 2 -

    8. The official results as published in His Majesty's Government Gazette dated 12th April, 2004 marked "JK-132" but released much later, show substantial discrepancies in many seats in the number of ballot papers issued for the Parliamentary Constituencies and the respective State Constituencies under the category of total number of ballot papers issued at the poll (including postal ballot papers issued to voters and rejected ballot papers but excluding spoilt ballot papers). The analysis of the states are enclosed as Kedah marked "JK -96"; Kelantan marked "JK-97"; Terengganu marked "JK-98"; Penang marked "JK-99"; Perak marked "JK-100"; Pahang marked "JK-101"; Selangor marked "JK-102" and "JK-103". Take two examples here. The Parliamentary seat for P028 Pasir Puteh, Kelantan with discrepancy of 4,843 marked "JK-105" and P085 Pekan Pahang with discrepancy of 1,502 marked "JK-107". For P28, the discrepancy of 4,843 is derived from ballot papers issued of 51,676 in parliament seat Pasir Puteh for less the total of all four state seats of 46,833 comprising Selising (N29) 11,348, Limbongan (N30) 13,744, Semarak (N31) 11,672, and Gaal (N32) 10,069 marked "JK-133" to "JK-139". For P85, the discrepancy of 1,502 is derived from ballot papers issued of 41,046 in parliament seat Pekan for less the total of all four state seats of 42,548 comprising Pulau Manis (N20) 10,794, Peramu Jaya (N21) 15,204. Bebar (N22) 7,011 and Chini (N23) 9,539 marked "JK-140" to "JK-146". Any discrepancies not investigated are not accepted for those electoral results declared as per schedules of some of the States as marked "JK-96" to "JK-103" and an analysis by seat marked "JK-104" to "JK-107" . I have read the Election Commission's Report on the General Elections 2004 and this aspect was not considered despite there was an Internal Election Audit Committee.
    9. The faulty rolls were once confirmed in the Election Court Judgement of N13 Likas of the 1999's Sabah General Elections decided in June 2001 resulting in by elections of that State seat in July 2001 and Parliament seat of Gaya P150 in October 2002. 96,677 phantom voters were deleted from the Rolls in 2000 with the impact thereof on the 1999's Sabah General Elections not considered marked "JK-108". The rolls remain faulty for the inclusion of the dubious citizens by virtue of possession of genuine identity cards in the hands of illegal people marked "JK-108", "JK-109", "JK-110" and "JK-32" to "JK-34" and "JK-35" to "JK-38" and the following prominent person as an example with identity card number H0635041 Osman bin Jamal@Jamar (570307125495) is one of those 461,155 who is in the Electoral Roll "JK-111". Others with similar questioned identity cards number are also in the rolls "JK-113" to "JK-118". Other articles on phantom voters are marked "JK-29" to "JK-31" and "JK-147". In the articled titled "Phantoms removed: EC" marked "JK-147", the 500,000 names removed nationwide was before the additional removed names of 96,677 voters deleted in Sabah in 2000 "JK-108" after the March 1999's Sabah General Elections. Although such voters were deleted, the electoral roll still have many names of dubious citizens in 2004. There are many questioned voters born between 1940 and 1973 in the Electoral Rolls only identified by their MyKad numbers without the their previous old identity cards numbers as in sample of roll slips marked "JK-119" to "JK-123".
    - 3 -
    10. There was at least one elected representative and once an Assistant Minister of Sabah with a permanent residence status with code 71 in the person of Datuk Dr Patawari bin Patawe marked "JK-127" to "JK-131" based on Joshua Kong's Police Report lodged on 15th June 2007 with reference number as Karamunsing/008725/07. Patawari bin Patawe's roll is in "JK-126".
    11. The comparison in Parliamentary Constituencies and the respective State Constituencies under the category of total number of ballot papers issued at the poll (including postal ballot papers issued to voters and rejected ballot papers but excluding spoilt ballot papers) was possible in General Elections 2004 because it was the first time Parliament and Sabah State General Elections were held simultaneously. The analysis for Sabah is per attached marked "JK-45" but incomplete due to many seats uncontested but the misconduct was obvious in many instances as indicated in my two Police Reports.
    Declarations and recommendations
    12. In view of the grave consequences of the evident mismanaged General Elections 2004 as undeniable but always disregarded by the Election Commission Chairman, I would urge the Court to declare the General Elections 2004's results as null and void and to invalidate the formation of the Federal and State Governments as the electoral frauds were ignored despite my complaints to the Election Commission and others on 23rd March 2004 and April, 2004 and the two Police Reports as lodged by me and notified to the relevant parties concerned including Anti Corruption Agency.
    13. I would urge the Court to rule that all remuneration and allowances of the elected representatives by default be refunded following the fraudulent General Elections 2004 to a public trust fund as most of the people involved are not that innocent.
    14. I would urge the Court to make an order to review the electoral rolls to be used for the general elections with a Royal Commission of Inquiry on the General Election 2004 and the electoral rolls thereof and the Governments be helm by an independent caretaker Government.
    15. The Court is urged to provide whatever recommendations or orders may deem fit on the Election Commission Malaysia and any other parties concerned in this disrepute to the democratic process with devastating impact on the proper nation building.
    Dated this 25 th day of February 2008

    ……………………………………..
    The Plaintiff
    - 4 -




    MALAYSIA
    IN THE HIGH COURT OF SABAH AND SARAWAK
    AT KOTA KINABALU
    SUIT NO.K21-10-OF 2008
    BETWEEN
    JOSHUA KONG YUN CHEE
    suing as voter …PLAINTIFF
    AND
    ELECTION COMMISSION CHAIRMAN…..........................................1st DEFENDANT
    NATIONAL REGISTRATION DEPARTMENT DIRECTOR, SABAH…2NDDEFENDANT
    GOVERNMENT OF MALAYSIA …....................................................3RDDEFENDANT


    ****************************************************
    WRIT OF SUMMONS
    ******************************************************
    Joshua Kong Yun Chee,

    Ref No. JK-Feb 2008- GE2004
    FILED THIS 25TH DAY OF FEBRUARY 2008








    Affidavit verifying lists of documents

    I, Joshua Kong Yun Chee NRIC 480823125003 of P. O. Box 11923, 88821 Kota Kinabalu, 26, Taman Iramanis, Lrg 5, off Jalan Lintas, Kolombong, Inanam 88450 Kota Kinabalu do affirm and say as follows:-

    1) The documents compiled by Joshua Kong marked "JK-1" to "JK-147" as evidence for the Writ of Summon are true to the best of my knowledge, information and belief.
    2) I would state that the said package of documents of 1 above are based on Police Reports of Joshua Kong reference Karamunsing/011997/07 dated 8th August, 2007 marked "JK-1" to "JK-38" and Karamunsing/Rpt/10281/06 dated 26th December 2006 marked "JK-39" to "JK-95" and extracts from my bool "A CASE OF VICTORY -landslide or rigslide" ISBN 978-983-2653-31-8 marked "JK-96" to "JK-123", extracts my Police Report reference Karamunsing/008725/07 of 15th June 2007 in "JK-127" to "JK-131", extracts from His Majesty's Government Gazette in "JK-132" to "JK-146" and other documents in "JK-124", "JK-125", "JK-126" and "JK-147".


    Affirmed by the above-named )
    Joshua Kong Yun Chee on the )
    ...................................... ) .....................................................
    Kota Kinabalu, Sabah, Malaysia )

    Before me,


    .........................................

    ReplyDelete
  2. Affidavit in Opposition against Strike out Order 18 Rule 19 (1)(d) of High Court 1980 by SFC for the Defendants



    MALAYSIA
    In the High Court in Sabah and Sarawak at Kota Kinabalu

    Suit No. K21-10 of 2008

    Between

    Joshua Kong Yun Chee Plaintiff

    and

    Election Commission Chairman 1st Defendant:
    National Registration Department 2nd Defendant
    Government of Malaysia 3rd Defendant

    AFFIDAVIT IN OPPOSITION
    I, Kong Yun Chee @ Joshua Kong (NRIC 480823-12-5003) of XX Taman, Lorong 5, off Jalan Lintas, Kolombong, 88450 Kota Kinabalu, Sabah, a Malaysian citizen of full age do affirm and say as follows:-
    1. I am the above-named Plaintiff of the Writ herein referred to as “my Writ” and the matters deposed herein are within my personal knowledge and belief unless otherwise stated.
    2. I am a Chartered accountant.
    3. I crave leave to refer to the defendants’ Senior Federal Counsel’s Summons in Chambers (Order 18 Rule 19 Rules ? of the High Court 1980 and or inherent jurisdiction of the Court) affirmed on 3rd November 2008 and filed herein (hereafter referred to as “the defendants’ Summons”) delivered to me at 9 a.m on 5th November 2008 on the day of MENTION of my Writ was outside the time of 14 days after submission of memorandum of appearance on 5th June 2008 The order 18 Rule 19 Rules (?), is very wide and in conflict with the content of the Defendants’ Summons as Rule 19 Rules 1 (d).
    4. In reply to the Defendants’ Summons, I believe the Courts should not entertain it as defendants submitted it outside the 14 days thereof 5th June 2008 not in compliance of the Order 12 Rule 7(1) of Rules of the High Court 1980.. (P.U. (A) 50/80). Also the request of (c) of enlarging the time for filing the defence should not be entertained as the defendants Summons is out of time and itself an abuse of the Courts.
    4.1 The ground that my Writ be struck out was “that it is an abuse of the process of the court” a subjective stance. The learned Chambers Encyclopedic English dictionary gives the appropriate meaning of ‘abuse’ is “to use one’s position and power wrongly” when I do not have position and power even as deputy President of Consumers’ Association of Sabah and Labuan FT and instead it is my personal legitimate right to pursue the only course of action for a worthy cause in the public interest and national concern when all else including the Legislative (Parliament), the Federal Cabinet (Executive) fail to address the crucial and essential part and parcel of a just society which falls rightly into the jurisdiction of the Courts as the Judiciary arm in the process of check and balance in nation building. Where would the abuse be when I comply with the rules of the High Court? Rather the defendants have abused their position and power in the pursuit of the strike out of my Writ even out of the time stipulated for such action. This is one of three Civil suits in the Courts in my sixty years in Sabah, when the first one was misplaced by my solicitors in 1990 and the other two are on General Election 2004 and General Election 2008.
    5. In reply to paragraphs (a) of the Defendants’ Summons, I aver that this Writ is not ‘an abuse of the process of the court’ by virtue of Federal Constitution 118 as more specifically it was not done within the stipulated time of the Gazette of the results of the General Election 2004 held on 21st March 2004. Instead my Writ sealed on 25th February 2008 is as valid as it is within the limitation of time of six years in common laws and unlimited time when frauds occur for reasons as laid out below:-
    5.1 I had issued adequate warnings of frauds and irregular conduct of the General Election 2004 as soon as the results were announced via the mass media and the Internet’s official website of Election Commissions and the Bernama’s website on the night of 21st March 2004 and as published by the local newspapers the next day. The warnings were done by letters to the Press, despatched by facsimile and emails to Election Commission and other leaders plus a more detailed letter in April, 2004. My letters were not published possibly due to sub judice as other election cases were pursued in the Courts.
    5.2 The Returns of all contested seats by the Returning Officers were dated 21st March, 2004 (except Sungai Lembing) and certified by the Election Commission on 2nd April, 2004. An election petition within 30 days of the 12th April, 2004 being the date of the Official Gazette was not possible as the Official Gazette was only available in July 2004. The aborted case of Mustapha bin Harun versus Donald Stephens in 1967 over the date of State Gazette may be relevant here. On and around 12th April, 2004, I was making enquiries for the Official Gazette. I believe that the Official Gazette would contain the correct results as the basis of any petition, complaint or Writ of Summons.
    5.3 Since I obtained the copy of the Official Gazette in July 2004, I did some examination to confirm the earlier analysis of those available records on the few days after 21st March 2004 and did find arithmetical discrepancies and errors in the Official Gazette.
    5.4 The official Report of the Election Commissions on General Election 2004 was only published in 2006.
    5.5 I was in sort of dilemma as how to gather the courage to pursue the case further except to lodge the first Police Report Karamunsing/ Rpt/10281/ on 26th December, 2006 and the second one Karamunsing/001997/07 on 10th August 2007. I was apprehensive about going to lodge Police Report in and around April, 2004 because of some bitter experience earlier over a Police Report which ended with a Section 182 of Penal Code in 1987.
    5.6 I restarted to lodge a couple of Police Reports in October of 2004 to ‘test the water” following the Special Commission To Enhance The Operation And Management of The Royal Police Force.
    5.7 Then I was recruited into Consumers’ Association of Sabah & Labuan in early 2006 and was made a Secretary General in late 2006 after acting for that position since June 2006 which gave me the encouragement to lodge a Police Report on General Election 2004 on 26th December 2006.
    5.8 Then I waited for action by the Police, the Anti Corruption Agency and the Election Commission. I have also lodged complaint to the Human Rights Commission of Malaysia (Suhakam) and the Federal Public Complaint Bureau over the inaction of the relevant authorities.
    5.9 So I thought if I lodge another Police Report with more details on the new analysis, the relevant authorities would take appropriate actions. So I made the second Police Reports on General Election 2004 on 10th August 2007 to get some feed back from the Police about my earlier report. Instead of taking action, the Police asked me to go to the Courts. I was reluctant to do that as I could not get legal advice following my circulars to the law fraternity around 21st October 2007 and early 2008.
    5.10 I again lodged another Police Report on 10th December 2007 as a reminder on my 18 Police Reports since 2004 which had not seen any positive reactions from the Police and other relevant Government agencies.
    5.11 As the 12th General Election was looming and great excitement was coming from the Election Commission Chairman, some messages were coming out and I did not know what to do over the challenge that we bring to the Courts to resolve the allegations of rigging which had become so loud with Bersih’s massive procession in Kuala Lumpur to deliver the Memorandum on Free and Fair Election to the DYMM Seri Paduka Baginda Yang Di-Pertuan AGONG X111, Al-Wathiqu Billah Tuanku Mizan Zainal Abidin ibni, Al-Marhum Sultan Mahmud Al-Muktafi Billah Shah D.K.T., D.K.R., D.M.N.. S.S.M.T., S.P.M.T., D.K. (Perlis), D.K. (Johor), D.K.M.B. (Brunei), D.K. (Perak), D.K. (Negeri Sembilan), D.K. (Kedah), D.K. (Kelantan), D.K. (Selangor), S.P.M.J., Commandeur De La Legion D'Honneur (France), on 10th November 2007.
    5.12 The Election Commission Chairman had been giving media conferences and interviews and I heard him saying over the national television Channel one on 4th January 2008 and I responded with a letter as faxed to him in Putrajaya on the same night. “JK-D1” There was no response from the Election Commission Chairman. His preoccupation with the preparation for the twelfth General Election is no reasonable excuse or rather his arrogance and hidden agenda need to be deliberated.
    5.13 On and around 5th February, 2008, a full Writ of Summons was published in the Internet over a Sabah case and so that was the model I used for the preparation of my Writ for General Election 2004 and could not file it in the Courts before the unexpected dissolution of the unexpired 11th Parliament on 15th February, 2008.
    5.14 So on the morning of 25th February 2008 around 9.30 a.m., I was at the Court’s registry trying to make payments and to file my Writ of Summons, a bomb hoax occurred and I was specifically asked to go out and people in the Court house was evacuated for the morning. Then I came back in the afternoon to file the case at the High Court’s office.
    5.15 Taking great pain and effort to alert attention over the rigged general election, hence not an abuse of the Courts as the Courts being the last bastion for natural justice should be the most appropriate venue for valid cause after all other avenues including the repeated calls for Royal Commission of Inquiry as ignored and the grand office of the DYMM SPB YDP Agong fail as I had drawn attention on the developments to 25th February 2008 in the aforesaid paragraphs 5.1 to 5.14. I was praying that the twelfth General Election 2008 could see the revamp over eleventh General Election 2004 in the context of frauds and I could only file the Writ of Summons on 25th February 2008 after all the hassle of many involved with the nominations of candidates for the General Election 2008 on 24th February, 2008. I also learned that the leaders of the Democratic Action Party had filed a case against the Government for a caretaker’s Government to enable a fair and free general election on 4th February, 2008 in High Court Kuala Lumpur.
    6. In response to the requirement of Federal Constitution Article 118, I aver that my Writ does not need to be in compliance with this article although the subject matters may pertain to General Election for the following factors:-
    6.1 While we respect the Federal Constitution although amended almost 600 items, where Article 118 is applicable in normal circumstances as in individual contested seat, my Writ is concerned with the whole General Election 2004 with specific complaints on the conduct of the Election Commission of its quality throughout the nation .
    6.2 Not asking for a general or judicial review of the conduct of the General Election, my Writ brings out the specific complaints on the defective returns which have misled the YDP Agong and various Sultans and Heads of States on the night of polling after counting for the purpose to instal the Governments (Federal and States) except for the Sarawak State Government and permitted under Federal Constitution 118A. The spirit of the Federal Constitution is for integrity, rule of laws and universal principle of justice.
    6.3 In the public interest and grave national concern, Article 118 should be ignored when my Writ highlight the frauds, electoral rigging, misconduct of the General Election by defendants especially the Election Commission Malaysia. In fact, the issues raised in my Writ have also violated other Articles of the Federal Constitution when illegal people were and still are in the electoral rolls and questionable people were and still are directly involved with the General Election as candidates and other roles.
    6.4 The position of the Deputy Prime Minister in the Federal Cabinet of Ministers is also a violation of the Federal Constitution (Article 43 (2) (a) . Was it not In the public interest and practicality, that such position was created for a long time already for political expediency?.Any Prime Minister not born in Malaya or Malaysia? (Article 43 (7).
    6.5 The three Deputy Chief Ministers of Sabah State Cabinet are also violations of the Sabah State Constitution chapter 2 article 6 (2). The Sabah State constitution has been likely violated as some Chief Ministers are likely not born in Sabah -chapter 2 article 6 (4).
    6.6 My Writ raises certain specific issues of the faulty electoral rolls, a specific questionable person as candidate amongst others in similar status and the erroneous Official Gazette (a separate and independent identity) with errors in forms and substances which are outside the scope of General Election specifically when the faulty rolls are due to the frauds of the National Registration Department - the second defendant and permitted by the Government of Malaysia - the third defendant.
    7. I also aver that I have the right to dispute the outcome of the General Election 2004 for the following factors:-
    7.1 Every voter as aggrieved has the right to bring an election petition challenging the results of the return of the candidate concerned in the respective constituency - Article 34 of Election Offences Act - A5.
    7.2 In common law or criminal law, a crime against humanity is a crime by whatever name. In the universal context, every one has the right to take up a complaint on any such crimes committed by anyone in the public interest. What is now more imperative that I have to dispute the outcome of the General Election 2004 when alleged frauds have been committed. How I wish the Election Commission Chairman and the Prime Minister had told us this perception of no right to query the outcome of the General Election 2004 rather than telling us to go to the Courts to prove the Election Commission wrong. So the Courts should heed the intentions of the Election Commission Chairman and the Prime Minister who asked for this trial repeatedly. The case of Prime Minister ordering the Attorney General not to be involved with the Anwar Ibrahim case was relied on the transfer case overriding the relevant articles of the Federal Constitution..
    7.3 In our official duty as civil servant as I was once the Examiner of Accounts - a Division II position- with sparse training in the Federal Audit Department for about four years where I can claim that I had raised queries to the values of up to Twenty Millions Ringgit in the early 1970s but I was not acknowledged. If I had got hold of the elusive tax file of the then Chief Minister of Sabah, I could have struck the gold mine. How I wish that someone had told me that I had no right to raise those queries as part of public responsibility as the ‘victims’ were offended by my action and many such ‘victims’ unknown to me have not forgiven me. I also knew some staff members under me never raised any queries to stay out of unforeseen personal adverse consequences.
    7.4 Is it not a fact that there is a civil responsibility in society that we report to the appropriate authorities when serious crimes had been committed by someone known or unknown. I have lodged 26 Police Reports of almost 1,000 pages worth RM11.441 trillions for the period 2004-2008 marked “JK-D2” with several of them related to issues of General Election. I have also extended such Police Reports to the other authorities especially the Anti Corruption Agency as part and parcel of civil responsibility. So far, I have yet to see positive actions if any by the appropriate authorities and Government agencies concerned. How I wish someone can come forward to tell me it is not my right to lodge Police Reports.
    7.5 Half of those 26 Police Reports embracing several alleged issues including corruption, abuses of power, frauds, criminal defamation and profligacy have one way or another connected with the election, identity cards, and three specific ones on General Election 2004 (2 reports) and General Election 2008.
    7.6 Do I really have no right to lodge Police Reports as nothing much appears to have done about those allegations? We are aware of the consequences of lodging Police Reports on the persons doing that. It is normal to expect the Police to wrap up all Police investigations with the relevant actions and most likely to be pursued by the Federal Attorney General on the offenders. When I have lodged three Police Reports on General Elections, may I ask inquisitively why alleged offenders including senior public officers are not touched and some stay on the jobs even with special extension beyond retirement age as in the case of the Election Commission Chairman in 2007?
    7.7 The rigged General Election 2004 is all over the places especially in the many forums of the Internet. There is a new website titled “World Chart For The Your Country's Most Corrupted Politicians” where for Malaysia the Election Commission Chairman is amongst the eight early entries of names listed there. So I would call on Election Commission Chairman as a civil servant for more than 40 years mostly at the Election Commission can be amongst most corrupted persons to clear that allegation as in “JK-D3” with grievous implications of Section 32 (c) of Act 5. I intend to lodge Police Report on this website and those names there.
    7.8 We are aware of the possibilities of lodging Police Reports and the Police is expected to pursue such cases within its jurisdiction and the Federal Attorney General’s office would be informed to pursue whatever actions deemed appropriate especially when alleged frauds and irregularities have been exposed in public interest. I do not know if any of such actions had been done by the Police and when the Police investigating the Police Reports needs more information, I would have furnished them as it has been done in some of the 26 Police Reports.
    7.9 The Anti Corruption Agency had been furnished by me with my Police Reports but ACA refuses to accept any reports to be lodged at the ACA office in Kota Kinabalu. The reasons given were once such written reports are accepted, full investigation would proceed by ACA whose officers had indicated to me that the cases I brought up were beyond their power, jurisdiction or purview or simply ‘untouchable’.
    7.10 I would believe that the Police, the Anti Corruption Agency, and other Federal and State Government agencies would be working in collaboration with the Federal or State Attorney General over any serious crimes of public interest.
    7.11 It is indeed a double whammy and a national disaster against public interest that instead of the Federal Attorney General acting on my Police Reports mostly on Federal matters or the State Attorney General on the state matters against those alleged offenders of public and private crimes, I am now served an out-of-time Court’s Application in Defendants’ Summon by the Senior Federal Counsel of the Federal Attorney General’s Chamber to strike out my Writ. Such action is deemed to be in defence of public officers as offenders instructing me of no right whatsoever to raise such important matters in the Courts.
    7.12 I have also written very much about General Elections and Election Commission and other related Government agencies including the other two defendants in press releases for the mainstream and the cyberspace apart from the many related Police Reports. In fact as matter of great urgency as encouraged by public outcry demanding appropriate attention and action in the conduct of the General Election for free and fair election, I published a book titled “Malaysian General Election March 2004 - A case of victory - landslide or rigslide” ISBN 978-983-2653-31-8 in early October 2007 and extended courteously enlarged copies of some pages to the Election Commission in late October 2007 in “JK-D4”.
    7.13 All the defendants with great power would feel great offence by such a book - “A case of victory - landslide or rigslide” and should have pursued all avenues to squash me beyond the books. But time is now not in their hands as any action would have given me the golden opportunity in whatever avenues to expose the crux of the General Election 2004 known to them. How I wish the defendants now tell me not to write books even on General Election as it is their exclusive rights to dominate the repeated alleged electoral crimes.
    8. I also aver that I am not limited by the requirement of the Election Offences Act 1954 [Act 5] as the facts of this case involve issues mainly beyond the provisions of Election Offences Act 1954 [Act 5] and further like to elaborate on this area as follows:-
    8.1 It is public knowledge that lots of Police Reports on legitimate Election Offence also filed with the Election Commissions nationwide were made in several recent General Elections especially in General Election 2004 as soon as after the Parliament thereof was dissolved. Instances of Election Offence within the purview of Act 5 as in campaigning were observed even prior to dissolution of parliament and nominations of candidates. Had any real action under Act 5 being pursued by the Election Commission on those known culprits? Show me the records.
    8.2 An appearance in the Courts was the Sabah State seat N13 Likas 1999 where the landmark Court decisions still stand but delayed over the six months allowed for election cases on June 2001. It was such an elaborate exercise that major rulings were made on Election Offence, faulty rolls, and phantom voters. Did the Election Commission play any significant role here? Were it not for the aggrieved candidates that the case had brought some short term relief for the State and nation? Why were the rulings in the case not followed through by the appropriate authorities including Election Commission and the National Registration Department as part and parcel of the valid electoral rolls for subsequent General Elections? Should not now that Election Offences Act be amended to include violations of the Electoral rolls on the part of the voters, the Election Commission and the National Registration Department? When N13 Likas 1999 was declared null and void, a by election ensued and the relevant authorities escaped with impunity over a very faulty electoral roll.
    8.3 We have seen how the Election Commission has been quiet when such incidences of Election Offence had been committed in so many ways by the incumbent parties. Then recently the Election Commission Chairman asked for power to prosecute offenders of Election Offence as likely a red herring. I would have thought the Federal Attorney General has the power to conduct such prosecution on behalf of the Election Commission and the National Registration Department as the Senior Federal Counsel is now defending them against my Writ.
    8.4 If there is no power to prosecute by whatever authority under Act 5 especially Election Commission is in want of that specific power, what is the purpose of Act 5 then and now? Now the defendants are telling me that I need to fulfill the requirement of Act 5 for my Writ to be declared for High Court hearing when the Election Commission has no power to prosecute under Act 5, and so Act 5 needs to be disregarded when the important issues of my Writ are not included in the provisions of the Act 5.
    8.5 On the contrary, my Writ and I do fulfill the requirements of the Act 5 generally and specifically by the implications of section 32 (c) of Act 5 as what had been committed are genuine Election Offence by alleged collusion of some quarters including the Election Commission beyond what are listed thereon in Act 5. The grounds for my Writ are adequately justified in the Writ itself and the points raised herein hence equity prevails like substances over form. Act 5 is a form and substance in my Writ should over ride all else for justice, public interest, fair and free election.
    8.6 The substance of my Writ largely based on official records and the Gazette is all listed and illustrated with an updated detailed summarised analysis “JKS-A” and “JKS-A1” - “JKS-A5” to show the status of all probabilities of the illegal Governments of Federal and States based on defective returns on the night of polling and counting. It is now for the Courts to examine them to ascertain the extend of such defects and frauds and make appropriate declarations.
    8.7 Such appropriate declarations and Judgement as in N13 Likas 1999 should be made mandatory and supervised by the Courts and the defendants should be made to adhere to such declarations accordingly. In the Suhakam’s Annual Report 2006, it was stated as “That the Election Commission ensures that voters on the electoral roll are true citizens of Malaysia” - Illegal Immigrants and Citizenship Issues in Sabah - Chapter 4. So the electoral rolls for Sabah remain largely unchanged in implementation despite the landmark Judgement of N13 Likas 1999.
    8.8 I have also lodged a few other related Police Reports on Project IC and Extra People Identity Cards backed up by three books. There are a few other voluminous books written about the same issues that cannot be disregarded for fair and free elections in the context of security and sovereignty of the State and the nation. The related reports are Extra People IC-KK/Rpt/23408/04 on 28 October 2004; UMNO Sabah’s members-KK/Rpt/27530/04 on 21 December 2004; Project IC/Mahathir Karamunsing/Rpt/0227/2006 on 21 June 2006 jointly with Consumers’ Association of Sabah & Labuan FT (CASH); “Our security & sovereignty” Karamunsing/003948/07 on 16 March 2007 jointly with CASH; Gangster SOH See Yee SSY Luyang/002101/07 on 15 June 2007; Datuk Dr. Patawari Hj Patawe Karamunsing/008725/07; on 15 June 2007; EPIC OF SABAH - some VIPs Karamunsing/011997/07 on 07/07/07; Pakistani’s MyKad & Paspot Luyang/001099/08 on 8 April, 2008; Malaysia Agreement & breaches Karamunsing/008525/08 on 6 June 2008 and Adun Nilwan Kabang & MyKadnya Luyang/002073/08 on 11 July 2008. (JK-D2)
    8.9 Amongst the issues of the Police Reports in 8.8 are foreigners and illegals as dubious Malaysians are in the electoral rolls, dubious Malaysians are also members of UMNO, serious crimes are accomplished by ‘locals’ using holders of questioned identity cards; foreigners with questioned identity cards can have one year passport and as voters; how someone with code 71 was elected assemblyman in General Elections 1999 and General Elections 2004; how many Chief Ministers of Sabah including the present one are not born in Sabah; how someone with a questioned identity card was allowed to be an elected assemblyman and how many others are also questioned citizens in violation of Elections Laws and no prosecution was pursued?
    8.10 The Returns on the night of polling and counting based on Act 5 were themselves defective ones for the omission of items of frauds and irregularities now identified by my Writ for the failings, failures and shortcomings of the Act 5 itself not properly pursued in accordance for fair and free elections. Actually the irregularities identified by my Writ are simply arithmetical logic without any specific law to prevail. Hence this complaint is valid under the Federal Constitution of 118A apart from other provisions of good governance in statutes and otherwise. The Anti Corruption Agency did make some noises during the tenure of the General Election but the Election Commission did not appear to have taken cognisance of that fact and once the Governments were formed as defective as they were, it is now beyond anyone to challenge the outcome of the General Elections 2004 as questionably claimed under Federal Constitution article 118 and Act 5 in this case.
    9. I also aver that the facts of this case involves great public interest and national concern and therefore it should be tried expediently on substance not form. The alleged ‘abuse of the process of the Courts’ does not arise, not scandalous, frivolous and vexatious, not without reasonable cause of action, not prejudice to any trial if Rule 19 is implied under the Order 18 as per Defendant’s Summons and my Writ is not specifically prohibited by Article 118 and / or Act 5 for their inherent shortcomings while Article 118A, other legal interlocutions and precedents legal or otherwise would permit my Writ of substance to go on. Substance such as unexplained and unverified arithmetic discrepancies as identified in my Writ also repeated in General Elections 2008, faulty official Gazette on its own identity being the basis of the Returns under 118A and only available after the period of valid submission of election petition, faulty electoral rolls, challenges and dictum of some relevant people in high positions and the ultimate truth over the implicated electoral frauds prevailing without doubt after two Police Reports and a book must be established by a proper trial rather than sweeping it under the proposed “strike off” order when the Federal Constitution is to uphold integrity rather than oppress that.
    10. In the premises, I pray for an order that this application to strike out for want of authority be dismissed with costs since the issues raised in my Writ of Summons are valid, justified and do not lack appropriate authority written or otherwise and no abuse of the process of the Courts.

    Affirmed by the said )
    )
    Kong Yun Chee @ Joshua Kong )
    )
    At the Kota Kinabalu, in the state )
    )
    Of Sabah , )
    )
    This ...14.... Day of November 2008 )

    Before me

















    This Affidavit in Opposition affirmed to on ........14........November 2008 and filed on .14-11-2008.......... Is taken out by the Plaintiff acting in person whose address for service is at 26 Taman Iramanis, Lorong 5, off Jalan Lintas, Kolombong 88450 Kota Kinabalu or preferable at P. O. Box 11923, 88821 Kota Kinabalu, Sabah.

    ReplyDelete
  3. Submission 1



    In the High Court At Kota Kinabalu Registry - 4th November 2008

    Suit No. K21-10 of 2008
    Joshua Kong Plaintiff:
    Election Commission Chairman 1st Defendant:
    National Registration Department 2nd Defendant
    Government of Malaysia 3rd Defendant

    1. Your honour, I as a Chartered Accountant with relevant practical experience in the conduct of general elections have analysed the Official results of General Elections 2004 in the Gazette after checking the official website as defective of the Election Commission on the polling day 21st March 2004 and found the grounds of the defective returns for the Governments (Federal and State) were declared near midnight on 21st March, 2004, hence this complain under Article 118A of the Federal Constitution and for electoral frauds as already stipulated in two Police Reports reference Karamunsing/Rpt/10281/06 of 26th December 2006 and Karamunsing/011997/07 of 10th August 2007 and my book titled “Malaysian General Elections March 2004 - A case of victory - landslide or rigslide” ISBN 978-983-2653-31-8 published in October 2007.
    1.1 The grounds amongst others are as follows:-
    1.1.1 Many discrepancies of the ballot papers issued (DBPI) of the Parliament and the State seats per schedules in the Writ marked “JK- 97” to “JK-103” for some states with a sample of major discrepancies (DBPI) ones in “JK-104” and “JK-107” with the highest one of 4,843 in P28 Pasir Puteh “JK-105” and now fully identified in “JKS-A1” and “JKS-A2” as per attached and discrepancies in ballot papers not returned in “JKS-A4” and “JKS-A5”. Any discrepancy is unacceptable and 68 of 161 Parliament seats (61 not comparable) have discrepancies of 51-200 ballot papers issued, affecting 216 of the 505 state seats (10 state seats no contest). JKS-A item 4.
    1.1.2 Discrepancies of numbers of electorate (Parliament & State) as per “JKS-A3” item 1 in 6 seats indicating different Electoral rolls were used.
    1.1.3 Errors and omissions in the Government’s Gazette 12th April, 2004 available in July 2004 -”JKS-A3” item 2 casting doubts on the reliability of the data of the Gazette.
    Any subsequent amendments of the results after 21st March 2004 are meaningless and irrelevant if not verified independently and accordingly with the source documents. Such amendments only confirm the faulty or defective returns. How can proper and legal Governments (Federal & State) be justified by rigged General Elections? The tradition of fraudulent general elections was again repeated in General Elections 2008.
    Page 1 of 2

    1.1.4 Discrepancies of Ballot papers NOT returned as per “JKS-A4” and “JKS-A5”.
    1.1.5 Error of ballot paper of Pahang’s N17 Sungai Lembing. “JK-82”
    1.1.6 Extension of polling period by 2 hours in Selangor due to alleged faulty rolls ”JK-87.


    2. For ease of reference, the faulty electoral rolls as illustrated in my Writ of Summon had been decided in a similar landmark case of N13 Likas 1999 and I append herewith a copy of the Full Judgement marked “JKS-C” and “JKS-C1” to “JKS-C19” which remains unchallenged.

    3. Your honour, for fair and free election and natural justice of paramount importance for nation building, the three defendants especially Election Commission (EC) are jointly responsible for the electoral work done above all doubts especially on polling day that ended with proper counting of votes verifiable with the official records in their hands and disseminated them in professional manner so that we have legitimate Governments. The EC may have been doing its role for more than 46 years and the incumbent Chairman for 5 General Elections, this trial is desirable to clear all the allegations and accusations of electoral rigging including major election offence coming from many quarters recently. EC Chairman Tan Sri Rashid Abdul Rahman and the Prime Minister Datuk Seri Abdullah Badawi has repeatedly ‘ask for it’ to bring this alleged rigging case to the Courts. There are several major triable issues in this Writ and General Elections 2008 to be properly heard in this Court and results and conduct of general election properly verified with all official records, to resolve the legitimacy of the Governments (Federal and State) now deemed illegal. Hence my pleadings in paragraphs 12 to 14 items amongst others in my Writ of Summons must be properly dealt with by the Courts as soon as possible. This case with great academic values can contribute as a priority to the enhancement of proper conduct and address the shortcomings including the retention of voting records of the General Election in future - a win-win scenario for the nation.

    Your honour
    Please allow this case to go forward and consolidated with K21-14-2008 as it is like a national service by me for all.

    Joshua Kong Plaintiff

    NB: JKS mean Joshua Kong’s Supplement
    Page 2 of 2


    GE 2004 - Analysis of the 11th General Election based on the results as published in the His Majesty Government Gazette P.U. (B) 163 12 April 2004.
    WORKING SCHEDULE: The following discrepancies and errors were detectd in the Gazette which is supposed to be free from faults implicating the General Elections were conducted irregularly resulting in faulty declaration of the Election Results for the formation of the Federal and State Governments on 21 st March 2004.
    1. Nature of fault: Number of electorate discrepancies Parliament and State seats
    Were different sets of Electoral rolls used for the same seats - Parliament & State
    Seats P’ment State Gazette page JK - document
    P2 Kangar, 40,516 N6 7,580 2833; 2834; “JKS-B1” to
    N6, N7 N7 7,979 3071; 3072; “JKS-B8”
    N9, N10 N8 9,314 3073; 3074;
    N9 8,024 3075; 3076
    N10 7,349
    40,246
    ----------------
    P80 Raub 44,523 N6 10,866 2923, 2924 “JKS-B21” to
    N6, N7, N8 N7 19,314 3316, 3317 “JKS-B26”
    N8 14,363 3318, 3319
    44,543
    ------------------
    P81 Jeruntut 46,059 N9 10,801 2924; “JK-50”
    N9, N10, N10 18,373 3319, 3320 “JK-61” to
    N11 N11 16,826 3321, 3322 “JK-64”
    46,000
    -----------------
    P109 Kapar 104,185 N42 36,737 2954; 2955 “JKS-B27” to
    N42, N43, N43 25,803 3396; 3397; “JKS-B33”
    N44, N45 N44 24,514 3398; 3399;
    N45 27,131 3400;
    114,185
    2. Items with misleading data
    Such errors give implication whether the other data are correct in the Gazette
    N28 Kemahang Error of data? 3151; “JK-135”
    P11 Pendang Missing figure 2845; “JKS-B9”
    N26 Padang Kota Error of data? 3231; 3232; “JK-55” & “JK-56”
    3. Candidates, proposers and seconders
    Identity of all candidates, proposers and seconders must be genuine Malaysians.
    N 60 Sebatik Identity & Identity Card of candidates 3595; 3596 “JKS-B34” “JKS-B35”“JK-126” to “JK-131”
    Police Report 008725/07 on Dr. Patawarie. “JKS-B36” to “JKS-B38”

    NB: JKS means supplementary documents to the KK High Courts now attached.

    “JKS-2”
    SUBMISSION FOR K21-10-2008 of Kota Kinabalu High Court. 5th Nov 2008

    SUMMARY OF ANALYSIS
    SCHEDULE
    1. GENERAL ELECTIONS 2004 - Discrepancies of Ballot papers Issued
    (Parliament 222 & State seats 576)
    Summary by states by ranges of ballot issued to show impact JKS-A2
    1A Listing of Discrepancies of Ballot papers Issued (Parliament & State seats)
    Identified by Parliament Number. JKS-A3

    2. GE 2004 - Analysis of the 11th General Election based on the results
    as published in the His Majesty Government Gazette P.U. (B) 163
    12 April 2004 JKS-A4
    1. Number of electorate discrepancies - Parliament & State seats
    2. Items with misleading data
    3. Candidates, proposers and seconders

    3. GE 2004 - Ballot Paper Issued NOT RETURNED for Parliament and
    State seats classified by state JKS-A5
    3A. General Elections 2004- Ballot papers not returned including postal ballot papers.
    Seats of major discrepancies > 100 while most seats have such discrepancies. JKS-A6

    4. IMPACT OF DISCREPANCIES ON NUMBER OF SEATS
    4.1 Discrepancies of Ballots issued / Numbers of electorate “JKS-A3” part 1

    Particular P’ment P’ment >51 State related P Seats in 2 below State P’ment State
    0 12 “JKS-A3”
    1-50 86
    51-200 37 37 120
    201-350 9 9 28
    351-750 8 8 22
    751 and above 9 9 30
    No comparison 61
    63 200 5 16 68 216
    Compared seats 161 495 161 495
    222

    4.2 Seats of the Discrepancies of Ballots Issued identified by Parliament seat No.
    51 and above are listed below:
    Range Numbers
    51-200 P3, P9, P10, P14, P20, P23, P24, P26, P27, P33, P 35, P36, P37, P40, P42, P44, P49, P53, P64, P66, P72, P82, P 94, P96, P98, P101, P112, P128, P132, P133, P136, P138, P146, P147, P149, P153, P172 37
    201-350 P1, P21, P74, P79, P101, P127 9
    351-750 P11, P48, P88, P113, P141, P145, P160, P163 8
    751 & above P6, P28, P39, P 56, P81, P85, P97, P130, P152 9
    Total 63

    ReplyDelete
  4. Seats with BIG discrepancies in Ballot papers Issued


    GENERAL ELECTIONS OF MALAYSIA IN MARCH 2004 - an analysis by seat
    1. KEDAH
    P006 Kubang Pasu-bn 2 State -N Ballots I Not Ret rejected b % majority
    No of Voters 49594 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 40,602 605 20,333 1,020 695 86.66 6,972
    Not Returned (B) 81 606 21,269 59 372 81.39 5,756
    rejected ballots (C) 919 Total 41,602 1,079 1,067 168.05 12,728
    % (D) 81.87 ==== ===== ==== ==== ====
    majority (E) 13,712 605 Bukit Kayu Hitam 23,463 bn
    discrepancies (F) 606 Jitra 26,131 bn
    % (F1) 1,068 Total 49,594
    Ballots (F2) 1,000
    N Ret (F3) 998


    2. KEDAH
    P009 Alor Star - bn 2 State -N Ballots I Not Ret rejectedb % majority
    No of Voters 57313 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 43,257 912 16,369 33 191 75.72 6,037
    Not Returned (B) 186 913 11,232 27 235 69.3 7,218
    rejected ballots (C) 828 914 15,545 0 182 79.7 2,827
    % (D) 75.48 Total 43,146 60 608 224.72 16,082
    majority (E) 14,515 Av ==== ==== ==== 74.9 ===
    discrepancies (F) 912 Bakar Bata 21,617 bn
    % (F1) 332 913 Kota Darul A,man 16,207 bn
    Ballots (F2) 111 914 Alor Mengkudu 19,489 bn
    N Ret (F3) 128 total 57,313


    3. KEDAH
    P011 Pendang - bn 2 State -N Ballots I Not Ret rejected b % majority
    No of Voters 57180 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 49,193 1,118 25,642 19 222 87.65 4,179
    Not Returned (B) 0 1,119 24,084 53 385 86.24 -4,250
    rejected ballots (C) 383 total 49,726 72 607 173.89 -71
    % (D) 86.03 Av ==== ==== ===== 86.94 =====
    majority (E) 50 1,118 Tokai 29,254 pas
    discrepancies (F) 1,119 Sungaai Tiang 27,926 bn
    % (F1) 523 total 57,180
    Ballots (F2) 533
    N Ret (F3) 72


    4. Kelantan
    P021 Kota Baru -bn 2 State -N Ballots I Not Ret rejected b % majority
    No of Voters 61409 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 46,707 2,108 13,375 0 134 77.43 2,789
    Not Returned (B) 0 2,109 18,543 0 269 74.81 34
    rejected ballots (C) 768 2,110 15,017 144 124 77.61 1,931
    % (D) 76.06 total 46,935 144 527 229.85 4,754
    majority (E) 1,723 Av === === === 76.62 ==
    discrepancies (F) 2,108 Tanjung Mas 17,273 pas
    % (F1) 342 2,109 Kota Lama 24,787 pas
    Ballots (F2) 228 2,110 Bunut Payong 19,349 pas
    N Ret (F3) 144 total 61,409
    Discrepancies in term of %, Ballots Issued and Not returned ballots in F1, F2 and F3 respectively.








    GENERAL ELECTIONS OF MALAYSIA IN MARCH 2004 - an analysis by seat
    5. KELANTAN
    P028 Pasir Puteh -pas 2 State -N Ballots I Not Ret rejected b % majority
    No of Voters 57308 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 51,676 2,829 11,348 0 177 81.1 -187
    Not Returned (B) 266 2,830 13,744 0 210 79.6 646
    rejected ballots (C) 1,184 2,831 11,672 0 387 83.41 -699
    % (D) 90.17 2,832 10,069 17 157 83.41 42
    majority (E) 3,810 total 46,833 17 931 327.52 -198
    discrepancies (F) === ==== average 81.9 ====
    % (F1) 4,740 2,829 Selising 13,993 bn
    Ballots (F2) 4,843 2,830 Limbongan 17,251 pas
    N Ret (F3) 249 2,831 Semarak 13,993 bn
    2,832 Gaal 12,071 pas
    total 57,308
    6. TERENGGANU
    P039 Dungun- bn 2 State -N Ballots I Not Ret rejectedb % majority
    No of Voters 55711 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 50,206 3,925 9,039 1 100 88.87 2,290
    Not Returned (B) 1,598 3,926 11,583 0 194 88.52 945
    rejected ballots (C) 708 3,927 12,439 26 134 84.29 169
    % (D) 90.12 3,928 15,604 34 148 88.18 1,444
    majority (E) 4,896 total 48,665 61 576 349.86 4,848
    discrepancies (F) ==== ==== ==== == ====
    % (F1) 1,480 3,925 Bukit Besi 10,171 bn
    Ballots (F2) 1,541 3,926 Rantau Abang 13,085 bn
    N Ret (F3) 1,537 3,927 Sura 14,757 bn
    3,928 Paka 17,698 bn
    total 55,711
    7. PENANG
    P048 Bukit Bendera -bn bn 2 State -N Ballots I Not Ret rejected b % majority
    No of Voters -65126 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 48,843 4,822 12,306 274 286 73.33 6,224
    Not Returned (B) 0 4,823 8,779 14 161 71.15 1,018
    rejected ballots (C) 998 4,824 13,612 0 240 72.16 3,198
    % (D) 71.93 4,825 11,425 22 283 66.66 6,106
    majority (E) 10,717 total 46,122 310 970 283.3 16,546
    discrepancies (F) =====
    % (F1) 723 4,822 Tanjung Bunga 16,782 bn
    Ballots (F2) 721 4,823 Air Puteh 12,342 bn
    N Ret (F3) 310 4,824 Kebun Bunga 18,863 bn
    4,825 Pulau Tikus 17,139 bn
    65,126

    Discrepancies in term of %, Ballots Issued and Not returned ballots in F1, F2 and F3 respectively.



    8. PERAK
    P056 Larut -bn 2 State -N Ballots I Not Ret rejected b % majority
    No of Voters 40150 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 31,393 5,605 10,130 28 209 75.25 2,053
    Not Returned (B) 78 5,606 8,336 15 174 73.3 1,403
    rejected ballots (C) 795 5,607 11,668 39 298 76.19 3,927
    % (D) 78.19 total 30,134 82 681 224.74 7,383
    majority (E) 7,608 === === === == ==
    discrepancies (F) 5,605 Selama 13,462
    % (F1) 1,316 5,606 Kubu Gajah 11,373
    Ballots (F2) 1,259 5,607 Batu Kurau 15,315
    N Ret (F3) 4 total 40,150

    9. PAHANG++
    P081 Jeruntut - 2 State -N Ballots I Not Ret rejected b % majority
    No of Voters 46059++ (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 36,444 8,109 8,478 14 170 78.4 1,528
    Not Returned (B) 1,427 8,110 13,548 38 623 73.74 2,239
    rejected ballots (C) 776 8,111 13,542 27 169 80.48 3,522
    % (D) 79.12 total 35,568 79 962 232.62 7,289
    majority (E) 8,457 Av ===== 77.54
    discrepancies (F) 8,109 Tahan 10,801 bn
    % (F1) 727 8,110 Damak 18,373 bn
    Ballots (F2) 876 8,111 Pulau Tawar 16,826 bn
    N Ret (F3) 1,348 46,000 ++


    10. PAHANG
    P083 Kuantan- bn 2 State -N Ballots I Not Ret rejectedb % majority
    No of Voters 45935 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 34,290 8,314 16,149 189 322 71.04 8,362
    Not Returned (B) 246 8,315 11,934 35 147 77.74 3,808
    rejected ballots (C) 543 8,316 6,245 58 86 79.54 1,167
    % (D) 74.65 total 34,328 282 555 228.32 13,337
    majority (E) 9,147 Av ==== 76.11
    discrepancies (F) 8,314 Teruntum 22,733
    % (F1) 669 8,315 Tanjung Lumpur 15,351
    Ballots (F2) 38 8,316 Inderapura 7,851
    N Ret (F3) 38 total 45,935


    11. PAHANG
    P084 Paya Besar - 2 State -N Ballots I Not Ret rejected b % majority
    No of Voters -37440 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 29,001 8,417 6,642 4 145 56.34 5,405
    Not Returned (B) 7 8,418 8,629 20 136 77.67 4,881
    rejected ballots (C) 564 8,419 11,487 31 149 79 3,747
    % (D) 77.46 26,758 55 430 213.01 14,033
    majority (E) 12,518 Av ==== 71
    discrepancies (F) 8,417 Sungai Lembing 11,790
    % (F1) 2,417 8,418 Lepar 11,110
    Ballots (F2) 2,243 8,419 Panching 14,540
    N Ret (F3) 48 37,440
    Discrepancies in term of %, Ballots Issued and Not returned ballots in F1, F2 and F3 respectively. ++ the Electoral Roll differs by 59 votes (Parliament 46,059 & State seats -46,000).














    GENERAL ELECTIONS OF MALAYSIA IN MARCH 2004 - an analysis by seat
    12. PAHANG
    P085 Pekan -bn 2 State -N Ballots I Not Ret rejected b % majority
    No of Voters 52687 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 41,046 8,520 10,794 812 167 80.98 4,491
    Not Returned (B) 0 8,521 15,204 41 266 80.49 4,163
    rejected ballots (C) 56 8,522 7,011 19 231 77.01 3,247
    % (D) 77.91 8,523 9,539 26 190 83.93 4,005
    majority (E) 22,922 total 42,548 898 854 322.41 15,906
    discrepancies (F) Av ===== 80.6
    % (F1) 1,418 8,520 Pulau Manis 13,329
    Ballots (F2) 1,502 8,521 Peramu Jaya 18,889
    N Ret (F3) 898 8,522 Bebar 9,104
    8,523 Chini 11,365
    total 52,687
    NB: the ballot issued discrepancies were (42,548 - 41.048) = 1,500 and the discrepancies of majority of BN votes were (22,922- 15,906) =7,016

    Submitted in GE 2004’s Writ of Summons by Joshua Kong





    13. SELANGOR
    P097 Selayang- 2 State -N Ballots I Not Ret rejected b % majority
    No of Voters 71152 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 51,033 9,713 11,667 212 288 76.12 4,865
    Not Returned (B) 129 9,714 13,929 23 382 68.3 7,544
    rejected ballots (C) 1,444 9,715 26,416 597 422 74.56 7,625
    % (D) 71.72 total 52,012 832 1,092 218.98 20,034
    majority (E) 23,226 Av ===== 72.99
    discrepancies (F) 9,713 Kuang 15,328
    % (F1) 906 9,714 Rawang 20,393
    Ballots (F2) 979 9,715 Tmn Templer 35,431
    N Ret (F3) 703 total 71,152



    14. SELANGOR
    P113 Sepang- 2 State -N Ballots I Not Ret rejectedb % majority
    No of Voters 58296 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 43,054 11,354 13,896 0 295 76.71 6,077
    Not Returned (B) 0 11,355 17,730 13 421 74.83 8,308
    rejected ballots (C) 315 11,356 12,166 64 515 73.8 4,107
    % (D) 73.85 total 43,792 77 1,231 225.34 18,492
    majority (E) 18,837 Av ==== 75.11
    discrepancies (F) 11,354 Tanjung Sepat 18,116
    % (F1) 736 11,355 Dengkil 23,695
    Ballots (F2) 738 11,356 Sungai Pelek 16,485
    N Ret (F3) 11 total 58,296
    Discrepancies in term of %, Ballots Issued and Not returned ballots in F1, F2 and F3 respectively.

    ReplyDelete
  5. Seats with BIG discrepancies in Ballot papers Issued

    (the tabulation is not clear and I can send them by facsimile0


    MALAYSIA
    In the High Court in Sabah and Sarawak at Kota Kinabalu

    Suit No. K21-10 of 2008

    Between

    Joshua Kong Yun Chee Plaintiff

    and

    Election Commission Chairman 1st Defendant:
    National Registration Department 2nd Defendant
    Government of Malaysia 3rd Defendant

    AFFIDAVIT IN SUPPORT
    I, Kong Yun Chee @ Joshua Kong (NRIC 480823-12-5003) of 26 0Taman Iramanis, Lorong 5, off Jalan Lintas, Kolombong, 88450 Kota Kinabalu, Sabah, a Malaysian citizen of full age do affirm and say as follows:-
    1. I am the above-named Plaintiff of the Writ herein referred to as “my Writ” and the matters deposed herein are within my personal knowledge and belief unless otherwise stated.
    2. I am a Chartered accountant.
    3. I crave leave to refer to my Writ, and my submission on 4th November 2008 and in this affidavit in support, I would like to draw attention of the Courts some of the relevant fact with the purchase of the Election Commission’s book titled “Report of the General Election Malaysia 2004” published in 2006 herein after referred to as the Report 2004.
    4. The Return of the results on 21st March 2004 according to Regulation 27 of Elections (Conduct of Elections) Regulations 1981 (PU (A) 386/81) herein referred to as the Regulation 27 of Elections Regulations with only one set of result would be returned on the night of polling after counting hence the results in the newspapers the next day and the Official Website of the Election Commission herein after referred to as the Official Website should be considered correct and valid although the Official Website was incomplete for General Election 2004. Chapter 4.19 in page 103 of the Report 2004 made reference of approval for the Official Website.
    5. The said Return as per paragraph 4 as the basis of the formation of the Federal and State Governments had been found to be defective hence the complaint under Federal Constitution 118A as per observation of facts and figures in the misconduct of the General Election 2004 by the defendants especially the 1st defendant as more than one set of results prevailed as illustrated in paragraph 6 below because the first set of results was on the night of polling and counting as published in the mass media, the Official website, then Return certified by the Election Commission on 2nd April, 2004 and published in the Official Gazette dated 12th April, 2004 herein after referred to as the Gazette and another set of official results with a varied format published in the Report 2004 under Appendix II for Parliament seats and Appendix III for State seats as stipulated in chapter 9.6 (page 131) Gazetting of Election Results via P.U (B) 163 on 12 April, 2004.
    6. Two incidences of three sets of results are illustrated as examples here as follows:-
    Particulars of the two results:-
    6.1 P81 JERUNTUT PARLIAMENT SEAT and State seats N9, N10, N11.
    6.1.1 For the P81 Jeruntut Parliament seat as shown in the Gazette page 2924 as marked in “JK-50”, the number of voters in the Roll was 46,059. When the three state seats N9 Tahan marked “JK-61” and “JK-62”, (Gazette 3319-3320); N10 Damak marked “JK-62” and “JK-63” (Gazette 3320-3321) and N11 Pulau Tawar marked “JK-63” and “JK-64” (Gazette 3321-3322), the number of voters in Roll (10,801+18,373+16,826) respectively was 46,000. The Report 2004 showed the respectively figures of voters as 10,860, 18,373, and 16,826 which added up to 46,059 to agree with the Parliament seat. In the Gazette, the percentage of voting of N9 Tahan in marked “JK-61” and “JK-62” was listed as 78.40% while the actual percentage of E/A X100, (formula used) that is 8,478 divided by 10,801 is 78.49%. So there was a discrepancy of 0.09%. If the amended figure of 10,860 for the Roll used in N9 Tahan as listed in the Report 2004 also deemed the Gazette was correct, then the percentage of voting should be 78.07%. But the Report 2004 showed the percentage of voting as 78.40%. Was it simply amending the figure of 10,801 to 10,860 to make up for the discrepancy of 59? Attachment of page 239 of the Report 2004 is enclosed as marked “JK10-1”. So the defective system to arrive at the Return on 21st March 2004 was exposed by the manipulation of some figures in the discrepancies of percentage of voting. For ease of comparison, I show them in the columns below:-
    Particular Official Gazette % of voting Report 2004 % of voting
    No. Voters Total No. Voters
    P 81 Gaz pg 2924 46,059 46,059 Pg 161 46,059
    -------- --------
    N9 Gaz pg 3319-3320 10,801 78.4 Pg 239 10,860 78.07
    N10 Gaz pg 3320-3321 18,373 Pg 239 18,373
    N11 Gaz pg 3321-3322 16,826 Pg 239 16,826
    Total - state 46,000 -46,000 46,059
    Discrepancy 59 0
    6.2 P171 SEPANGGAR PARLIAMENT SEAT and state seats N12 and N13
    6.2.1 For the P171 under Regulation 27 of the Election Regulations, Sepanggar Parliament seat as shown in the Official Website of the Number of voters at 34,527 with issued ballot papers of 10,439 representing percentage of voting of 30.23%, the winner secured 7,143 and the loser secured 2,935 with a majority for the winner of 4,208 votes and spoilt votes of 361 as shown in page marked “JK-77” of my Writ. I have a copy of the webpage.
    6.2.2 The Bernama’s online website for the results also based on same source under Regulation 27 of the Election Regulations in page marked “JK-75” of my Writ showed that percentage of voting of 30.23% with the winner securing 16,420 and the loser 5,201 and a majority of 4,208 and rejected ballot papers of 361. The discrepancy of 6.2.1 and 6.2.2 is in the number of votes obtained by the candidates.
    6.2.3 The Gazette at pages 3027 and 3028 showed the number of voters at 34,527 with issued ballot papers of 22,083 representing percentage of voting of 63.96%, rejected ballot papers of 727 and ballot papers issued not returned of 32, and the winner securing 16,226, loser securing 5,098 with a majority of 11,128. The Report 2004 at page 184 showed the same data.
    6.2.4 To highlight the discrepancies in 6.2.1 and 6.2.2 with 6.2.3 supposedly from the same source of Regulation 27 of the Election Regulations, the Official Website and the Bernama’s website had shown the same percentage of voting of 30.23% and the same number of spoilt votes of 361 on the night of polling and counting. The votes secured by the winner and loser in 6.2.1 were 7,143 and 2,935 making a total of 10,078. The votes secured by the winner and loser in 6.2.2 were 16,420 and 5,201 making a total of 21,621. The votes secured by the winner and loser in 6.2.3 were 16,226 and 5,098 making a total of 21,324. The discrepancy of 21,621 and 21,324 (297) was partly due to the difference of rejected ballot papers or spoilt votes of 727 - 361 (366) but still left with a discrepancy of [366 - 297] or 69 which remains unexplained.
    Particulars Official Website Bernama’s website Gazette pg3027 Report 2004 pg 184 Discre-pancies
    No. Of voters 34,527 Not available 34,527 34,527 /
    Issued ballot papers 10,439 n/a 22,083 22,083 /
    % of voting 30.23 30.23 63.96 63.96 /
    ---------------- --------------- ------------- ---------------- /
    Winner votes 7,143 16,420 16,226 16,226 / 21,621
    Loser votes 2,935 5,201 5,098 5,098 / -21,324
    Total votes 10,078 21,621 21,324 21,324 / 297
    Majority 4,208 4,208 11,128 11,128 / ---------
    Spoilt votes 361 361 727 727 / 727
    Ballot paper not returned n/a n/a 32 32 / -361
    / 366
    1 2 3 4 5 6
    6.2.5 We have three sets of results despite a single source under Regulation 27 of Elections Regulations. Earlier in the day of Polling, the radio’s regular updates did mention that the turnout in Sepanggar was extremely low. The discrepancies in these two glaring examples in paragraphs 6.1 and 6.2 and other discrepancies in the issued ballot papers marked “JKS-A1” and “JKS-A2” prevailed although there was an Internal Election Audit Committee - Chapter 11.2 in page 137 of the Report 2004.
    6.2.6 The State seats under P171 Sepanggar namely N12 Karambunai and N13 Inanam in Daily Express marked “JK-79” showed the percentages of votes casts as 62.64% and 65% respectively. The Bernama’s website marked “JK-70” showed the percentage of votes cast as 62.64% (N12) and 64.97% (N13) when the Gazette showed 62.64% (N12) and 65.25% (N13). The return of percentage of voting of 30.23% in paragraph 6.2.1 and 6.2.2 and the return of over 60% in paragraph 6.2.6 gave a big discrepancy not investigated on 21st March, 2004.
    7. I regret for the technical errors on two Parliament seats out of six listed in paragraph 1 of “JKS-A3” namely P12 Jerai and P29 Machang which had been checked again to be free from discrepancies in the number of Voters in the Roll used for Parliament and state seats concerned.
    8. We have to examine all the electoral records of Datuk Dr. Patawarie with code 71 and sometimes with code 12 as how he was not disqualified from election as per documents marked “JK-126” to ”JK-131” and “JKS-B36” to “JKS-B38”. This challenge over his status of citizenship must be cleared. Similarly all other candidates, proposers and seconders at Elections should be true Malaysians under the provisions of Federal Constitution.
    9. The Returns of General Election 2004 on 21st March 2004 for the Federal and State Governments were defective for all the discrepancies, irregularities, electoral frauds, electoral offence and misconduct by the defendants under Elections (Conduct of Elections) Regulations 1981 and Election Offence Act 1954 [Act 5] especially the first defendant as illustrated by me in the Court documents on the official documents and this AFFIDAVIT IN SUPPORT further strengthens my Writ for appropriate declarations.
    Affirmed by the said )
    )
    Kong Yun Chee @ Joshua Kong )
    )
    At the Kota Kinabalu, in the state )
    )
    of Sabah , )
    )
    This ...2nd..., day of December 2008 ) .................................................


    Before me







    .................................................................



    This Affidavit in Support affirmed to on .. ....2nd....December 2008 and filed on ......2nd....December 2008....Is taken out by the Plaintiff acting in person whose address for service is at Taman, Lorong 5, off Jalan Lintas, Kolombong 88450 Kota Kinabalu or preferable at P. O. Box 11923, 88821 Kota Kinabalu, Sabah.

    ReplyDelete
  6. Affidavit in Support 2 for Writ 1 -GE 2004



    MALAYSIA
    In the High Court in Sabah and Sarawak at Kota Kinabalu

    Suit No. K21-10 of 2008

    Between

    Joshua Kong Yun Chee Plaintiff

    and

    Election Commission Chairman 1st Defendant:
    National Registration Department 2nd Defendant
    Government of Malaysia 3rd Defendant

    AFFIDAVIT IN SUPPORT 2

    I, Kong Yun Chee @ Joshua Kong (NRIC 480823-12-5003) of Taman, Lorong 5, off Jalan Lintas, Kolombong, 88450 Kota Kinabalu, Sabah, a Malaysian citizen of full age do affirm and say as follows:-
    1. I am the above-named Plaintiff of the Writ of Summons filed on 25th February, 2008 hereinafter referred to as my Writ and the matters deposed herein are within my personal knowledge and belief unless otherwise stated.
    2. I am a Chartered accountant.
    3. I crave leave to refer to my Writ, my submission on 4th November 2008 hereinafter referred to as my submission, the AFFIDAVIT IN SUPPORT on 2nd December 2008 hereinafter referred to as SUPPORT and in this AFFIDAVIT IN SUPPORT 2 hereinafter referred to as SUPPORT 2, I would like to draw attention of the Courts some new discrepancies in the Election Commission’s book titled “Report of the General Election Malaysia 2004” published in 2006 hereinafter referred to as the Report 2004 and also to provide further detailed schedules of analysis of the discrepancies mentioned in my Writ in paragraphs 7 and 8; Schedule 1, 1A and 4 of “JKS-A”; “JKS-A1” and “JKS-A2” of my submission.
    4. The ballots issued also known as ballot papers issued for each Parliament seat and those State seats under that particular Parliament seat when all seats are contested should be equal when such ballots for the State seats are added up. Given that some of such discrepancies including 6 Parliament seats into a thousand and more with the highest one at 4,843 (P28), any discrepancies including 1 - 50 are questionable. Even a zero case can be suspected of irregularities when manipulation can be perfected when small discrepancies can be due to voters coming to cast their votes in the last few minutes before closing on polling day. For this purpose and to assist the Courts, I have prepared the comparison schedules for each State where there are Parliament and State seats contests as per exhibits marked “JK10-A1” to “JK10-A10”. These schedules of 10 pages are details of the summary of schedule in “JKS-A2” in my submission.
    5. There were various discrepancies of the results in the official website, in the press, the Official Gazette, and the Report 2004 as I have illustrated in my Writ, my submission, SUPPORT and now more discrepancies of data are observed in the Report 2004 deemed to be also the data of the Official Gazette according to Chapter 9.6 of the Report - Gazetting of Election Results in Appendix II and III page 131. The data in the Report 2004 and the Official Gazette differ in a few examples namely:-
    Particulars of discrepancies-
    5.1 In Table 4.1 of the Report 2004 page 91 titled Nomination Centres, Polling Centres and Vote Tally Centres, there was a total polling stations of 19,833. But in Chapter 4.7.2 Polling Centres, it was 19,843 polling stations (streams) in page 92 of the Report 2004. The differing numbers give the serious implication of misconduct as the poling stations would be supplied with different number of ballot boxes.
    5.2 The discrepancies in State seat N3 Jertih of Terengganu in the percentage of ballot issued against the number of voters in the Roll were 85.32% in the Official Gazette page 3174 and 85.23% in the Report 2004 page 213 are significant in the distorted parameters of the seat concerned.
    5.3 For the Parliament seat P53 Balik Pulau in Penang, the ballots issued was recorded in the Official Gazette in page 2893 as 29,885 while the number given in the Report 2004 was recorded as 29,825 in page 156 (refer to “JK10-A4”). The quality of the conduct of General Election 2004 is questionable.
    5.4 For the Parliament seat P81 Jeruntut in Pahang and in the State seat under it namely N9 Tahan, the Report 2004 recorded the number of voters in the Roll as 10,860 (page 239) as exhibit attached to SUPPORT marked “JK10-1”. This data is shown in SUPPORT 2’s exhibit marked ”JK10-A6”. The Official Gazette page 3319 in exhibit marked “JK-61” recorded the number of voters as 10,801.
    6 The Return of the results on 21st March 2004 according to Regulation 27 of Elections (Conduct of Elections) Regulations 1981 (PU (A) 386/81) with only one set of results would be returned on the night of polling after counting and the declaration of winning party by Election Commission Chairman also the first defendant in Chapter 9.3 of the Report 2004 at 12 midnight of polling day. The same Return of results was presented to the DYMM SPB Yang Di Pertuan Agong at 10 a.m., on 22nd March 2004 at Istana Negara, Kuala Lumpur.
    7. The said Return as per paragraph 6 as the basis of the formation of the Federal and State Governments had been found to be defective due to arithmetic discrepancies hence the complaint under Federal Constitution 118A as per observation of material, significant and fundamental facts and figures in my writ, my submission, SUPPORT and this SUPPORT 2.
    8. The defective returns due to several factor can be explained and identified to the Election Offences 1954 [Act 5]. When the substance of my Writ, my submission, my Affidavit in Opposition against the Order 18 Rule 19 of the Rules of High Court 1980, my SUPPORT and my SUPPORT 2 is examined by the Court, relevant Election Offence would emerge and linked to certain items under Act 5 in particular Part II section 3 and 4 that had given rise to the arithmetical discrepancies of the Issued Ballot papers. Also grievous implications of Section 32 (c) of Act 5 need to be scrutinised with an alleged corruption of the first defendant in exhibit marked “JK-D3-2” in my Affidavit in Opposition..
    9. I pray that this case of paramount importance in public interest and free and fair elections for true justice to prevail and that this AFFIDAVIT IN SUPPORT 2 further strengthens my Writ, my submission, SUPPORT when reading Federal Constitution Articles 118 and 118A together for proper hearing so that the Court make appropriate declarations promptly.

    Affirmed by the said )
    )
    Kong Yun Chee @ Joshua Kong )
    )
    At the Kota Kinabalu, in the state )
    )
    of Sabah , )
    )
    This ..9th.. day of December 2008 ) .................................................


    Before me







    .................................................................










    This Affidavit in Support 2 affirmed to on .. .....9th.....December 2008 and filed on ...9th......December 2008, is taken out by the Plaintiff acting in person whose address for service is at Taman , Lorong 5, off Jalan Lintas, Kolombong 88450 Kota Kinabalu or preferable at P. O. Box 11923, 88821 Kota Kinabalu, Sabah.

    ReplyDelete
  7. Writ of Summons 2



    WRIT OF SUMMONS
    MALAYSIA
    IN THE HIGH COURT OF SABAH AND SARAWAK AT KOTA KINABALU
    BETWEEN
    JOSHUA KONG YUN CHEE
    suing as voter …PLAINTIFF
    AND
    ELECTION COMMISSION CHAIRMAN.......................................… DEFENDANT
    YANG AMAT ARIF TAN SRI DATUK SERI PANGLIMA RICHARD MALANJUM, P.S.M., S.P.S.K., S.S.A.P., S.I.M.P., S.P.D.K., P.G.D.K., CHIEF JUDGE OF THE HIGH COURT IN SABAH AND SARAWAK IN THE NAME AND ON BEHALF OF SERI PADUKA BAGINDA YANG DIPERTUAN AGONG.
    To:-
    Election Commission Chairman
    Kompleks Kerajaan Persekutuan Sabah
    Jalan UMS, Menggatal.

    I COMMAND you that within 10 days after the service of this Writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you at the suit of Joshua Kong Yun Chee of 26 Taman Iramanis, Lorong 5, off Jalan Lintas, Kolombong, Inanam, Sabah. Take notice that in default of you so the doing the Plaintiffs may proceed therein the judgment and execution.

    WITNESS
    Registrar of the High Court in Sabah and Sarawak the day of 2008.


    ……………………………… …..………………………………
    Joshua Kong Yun Chee - Plaintiff At Kota Kinabalu.
    Memorandum to be subscribed on the Writ
    This Writ may not be served more than six (6) calender months after the above date unless renewed by order of Court.
    The Defendant (or Defendants) may appear hereto by entering an appearance (or appearances) either personally or by an advocate at the Registry of the High Court.
    A Defendant appearing personally may, if he desires, enter his appearance by post, and the appropriate forms may be obtained by sending a postal order for RM 10.00 with an addressed envelope to the Deputy Registrar, High Court at Kota Kinabalu, Sabah.


    STATEMENT OF CLAIM
    1. The Plaintiff is a Malaysian citizen residing in Sabah and a voter who voted in General Elections 2008.
    2. The 1st Defendant was at all material times the Election Commission Chairman who conducted the General Elections 2008.
    3. I am filing this case early to draw attention of the Election Commission Chairman so that he would retain all the documents, records and ballot papers - used and unused - in the administration of the General Elections 2008 as such documents could be destroyed after a period of time. This is also another instalment of acknowledging the request of the EC Chairman to bring any electoral issue to the Courts.
    4. There were serious misconduct and discrepancies of the 12th National and the 11th Sabah General Elections held on 8th March 2008 by the Elections Commission, Malaysia.
    5. Amongst many items on misconduct and irregularities on General Elections 2008 as documented in the Police Report reference Luyang/1100/2008 on 8th April, 2008 marked "JK-1" by Joshua Kong supported by documents marked "JK-PR1" to "JK-PR75", the major discrepancies are in the total number of ballot papers issued at the poll (including postal ballot papers issued to voters and rejected ballot papers but excluding spoilt ballot papers), the non returned ballot papers, the faulty electoral rolls aided by the National Registration Department and many items of election offence not acted by the Election Commission.

    6. The official results as published in official website of Election Commission Malaysia marked "JK-PR10 to JK-PR47" and very likely to be the same as the Official Gazette published on 8th April, 2008 to be available in print much later, show substantial discrepancies in many seats in the number of ballot papers issued for the Parliamentary Constituencies and the respective State Constituencies under the category of total number of ballot papers issued at the poll (including postal ballot papers issued to voters and rejected ballot papers but excluding spoilt ballot papers). The summary of the analysis of comparison of the States except Sarawak and Federal Territory where State seats election was not held is marked "JK -PR5"; the summary of all the Parliament seats where contests in Parliament and State seats were held is marked "JK-PR6"

    7. The detailed analysis of discepancies of ballot papers issued in examples of six seats namely Perak's P69 Parit, Selangor's P112 Kuala Langat and Negeri Sembilan's P131 Rembau marked "JK-PR7" and Melaka's P139 Jasin, Johor's P150 Batu Pahat and Johor's P155 Tenggara marked "JK-PR8" Take two examples here. The Parliamentary seat for P69 Parit Perak with discrepancy of ballot papers issued of 1,947 marked "JK-PR7" and P112 Kuala Langat Selangor with discrepancy of 1,293 marked "JK-PR7". For P69, the discrepancy of 1,947 is derived from ballot papers issued of 22,598 in parliament seat Parit marked "JK-PR24" for less the total of two state seats of 20,651 comprising Belanja (N38) 9,313 and Bota (N39) 11,338 marked "JK-PR27". The details of Parliament seat Parit and State seats Belanja and Bota are in document marked "JK-2". For P112, the discrepancy of 1,293 is derived from ballot papers issued of 52,792 in parliament seat Kuala Langat marked "JK-PR32" for less the total of all three state seats of 54,085 comprising Sijangkang (N51) 18,578, Teluk Datuk (N52) 14,972, and Morib (N53) 20,535 marked "JK-PR34". The details of Parliament seat Kuala Langat and State seats Sijangkang, Teluk Datuk and Morib are in document marked "JK-3". Any discrepancies not investigated are not accepted for those electoral results declared as per schedule marked "JK-PR5". Those seats with discrepancies in excess of 51 votes are 54 for Parliament and related 156 state as per schedule "JK-PR5". Hence the results are substantially questionable to enable the Federal and State Government to be legally constituted.
    8. The unexplained substantial discrepancies of not returned ballot papers issued for the Parliament and related State seats included in the postal ballot papers with the examples as in scheduled marked "JK-PR9". This is another significant indicator of misconduct of the General Elections 2008 by the EC.

    9. The faulty rolls were once confirmed in the Election Court Judgement of N13 Likas of the 1999's Sabah General Elections decided in June 2001 resulting in by elections of that State seat in July 2001 and Parliament seat of Gaya P150 in October 2002. 96,677 phantom voters were deleted from the Rolls in 2000 with the impact thereof on the 1999's Sabah General Elections was not considered. The rolls remain faulty for the inclusion of the dubious citizens by virtue of possession of genuine identity cards in the hands of illegal people. Osman bin Jamal@Jamar H0635041(570307125495), Mohamed Bin Amzala Khan KP 680630125871/H0331400 "JK-PRP-1" to "JK-PRP- and others with similar questioned identity cards number are also in the rolls "JK-4" to " JK-6".
    10. There were observations of many incidences of election offence and the particulars of such offence amongst others are as follows:-
    10.1 Discrepancies of numbers of voters were observed in the Electoral Rolls of 5 Parliament seats and the related 14 State seats marked in P5 Jerlun as "JK-PR12" and "JK-PR13", P21 Kota Bharu "JK-PR15" and "JK-PR16", P44 Permatang Pauh and P46 Batu Kawan as "JK-PR21" and "JK-PR22", and P101 Hulu Langat "JK-PR31" and "JK-PR33"-"JK-PR34". The discrepancies were P5 Jerlun (8,216) marked "JK-PR14"; P21 Kota Bharu (2) marked "JK-PR17", P44 Permatang Pauh (507) and P46 Batu Kawan (83) marked "JK-PR23", and P101 Hulu Langat (60) marked "JK-PR32".
    10.2 Seri Gaya - official residence of Chief Minister was was used for campaign after dissolution. for two major political events for the lauching of the BN Manifesto on 26th February 2008 "JK-PR48" to "JK-PR51" and announcing the Barisan Nasional candidates on 22nd February "JK-PR52" to "JK-PR53"
    10.3 Yayasan /Foundation abused for election campaign namely Yayasan Budi Penyayang Yayasan /Foundation abused for election campaign:-Yayasan Budi Penyayang "JK-PR54". Yayasan Sabah-Pitas "JK-PR55",Sandakan B9 "JK-PR56",Tawau B10 "JK-PR57",Keningau "JK-PR58" to "JK-PR60"
    10.4 There were issues of Identity card "JK-PR61""JK-PR64""JK-PR73";
    10.5 Racial and religious issues were raised "JK-PR62""JK-PR63""JK-PR74"
    10.6 Phantom voters prevailed and the Rolls were reported faulty. "JK-PR63""JK-PR66"


    10.7 Counting & ballot box. "JK-PR62" "JK-PR65" "JK-PR70""JK-PR72"

    10.8 Lots of allegations of abuses, corruptions Intimidation and bribes in the bias mass media towards the incumbent BN and some examples are as in "JK-PR52""JK-PR52""JK-PR66""JK-PR67" "JK-PR68" "JK-PR69" "JK-PR72"
    10.9 Daily Express on 7th March 2008 reported that 48 Police Reports were received in Sabah alone.

    10.10 Printer's name was not on the Barisan Nasional Manifesto "JK-PR51"

    The Elections Commission had been silent on those incidences of election offence as reported widely in the press.

    11. The appointment and swearing in of Sabah Chief Minister before the Tuan Yang Pertua Sabah on 9th March 2008 also a Sunday (Public Holiday) needs to be reviewed for its legality in the context of the consenting protocol of appointment of Chief Minister and Menteri Besar adopted by United Malays National Organisation (UMNO) in the spirit of Barisan Nasional when the Prime Minister of Malaysia also Chairman of BN and President of UMNO was not sworn in at the Istana Negara, Kuala Lumpur until Monday - the 10th March, 2008. Also the appointment of the Prime Minister of Malaysia is to be questioned as how he was given the appointment letter at the Istana Terengganu, Kuala Lumpur on Sunday (Public Holiday) marked "JK-" when the Royal Seal of the YDP Agong is kept at the Istana Besar, Kuala Lumpur.
    Declarations and recommendations
    12 In view of the grave consequences of the evident mismanaged General Elections 2008 as undeniable but always disregarded by the Election Commission Chairman, and with sudden new changes during the campaign period such as stamp duty on Statutory Declaration Form 5 and the withdrawal of indelible ink, and considering only those available solid evidence in the illustrated discrepancies marked "JK-PR5" to "JK-PR9", the Court is urged to consider the General Elections 2008 in the aspects as follows:-
    121 The Election Commission and its Chairman should be examined for their biasness to the Barisan Nasional as the Chairman had declared in public statements that only BN was qualified to rule the nation when it is the voters to decide on that.
    12.2 In view of the massive discrepancies in various ways and no proper system was in place on polling day at the tallying and counting process to verify and rectify the discrepancies as aforesaid mentioned, the Court is urged to make an order that all ballot boxes, all ballot papers marked and unmarked or unused together with all the relevant documents starting with the purchase order and delivery note of printed ballot papers for all seats nationwide be kept in independent secured locations after the period of retention by the EC has lapsed. This would give any aggrieved parties including the plaintiff on Court orders to scrutinise all such electoral documents later, should this writ be not resolved prior to the lapse period of custody in the EC. This would enable a proper verification process to establish the full fact of the electoral process as how the General Elections 2008 had been observed as rigged.
    12.3 The Court is also urged to declare that this General Election 2008 be resolved with a Royal Commission of Inquiry to deal with the finality of the rigging as part of the failure/weaknesses of EC and the faulty rolls arising from the irresponsibility of Nation Registration Department as it is undeniable that fair and free election is the fundamental foundation for the peace in a democratic nation.
    12.4 The Court is also urged to declare the General Election 2008's results as null and void and to invalidate the formation of the Federal and State Governments as the electoral frauds remains unresolved by the relevant authorities such as the Police and the Anti Corruption Agency who had similarly received many reports.
    12.5 The Court is strongly urged to make the appropriate orders and rulings promptly so that electoral frauds would not be repeated in the near future despite earlier Joshua Y. C. Kong's effort on fraudulent General Elections 2004 via various approaches namely direct communications as ignored, press did not publish the press releases, two Police Reports and the Writ of Summons filed on 25th February, 2008 at the Kota Kinabalu High Courts.
    12.6 The Court should also consider an order for an independent caretaker Government.to review the electoral rolls to be used for the general elections 2008 with a Royal Commission of Inquiry on the General Election 2008 and the electoral rolls thereof.
    12.7 The Court is urged to provide whatever recommendations or orders may deem fit on the Election Commission Malaysia and any other parties concerned in this very costly disrepute as repeated to the democratic process with devastating impact on the proper nation building.
    Dated this 25th day of April, 2008

    ……………………………………..
    The Plaintiff
    - 4 -

    ReplyDelete
  8. Affidavit in Opposition 2 against strike out on GE 2008



    MALAYSIA
    In the High Court in Sabah and Sarawak at Kota Kinabalu

    Suit No. K21-14 of 2008

    Between

    Joshua Kong Yun Chee Plaintiff

    and

    Election Commission Chairman Defendant:

    AFFIDAVIT IN OPPOSITION
    I, Kong Yun Chee @ Joshua Kong (NRIC 480823-12-5003) of Taman, Lorong 5, off Jalan Lintas, Kolombong, 88450 Kota Kinabalu, Sabah, a Malaysian citizen of full age do affirm and say as follows:-
    1. I am the above-named Plaintiff of the Writ herein referred to as “my Writ 2” and the matters deposed herein are within my personal knowledge and belief unless otherwise stated.
    2. I am a Chartered accountant.
    3. I crave leave to refer to the defendant’s Senior Federal Counsel’s Summons in Chambers (Order 18 Rule 19 of Rules of the High Court 1980 and or inherent jurisdiction of the Court) affirmed on 12 November 2008 and filed herein (hereafter referred to as “the defendant’s Summons”) delivered to me at 8.50 a.m on 12th November 2008 without a covering official letter on the day of re-MENTION of “my Writ 2” was outside the time of 14 days after submission of memorandum of appearance on 5th June 2008.
    4. In reply to the Defendant’s Summons, I believe the Courts should not entertain it as defendant submitted it outside the 14 days thereof 5th June 2008 not in compliance of the Order 12 Rule 7(1) of Rules of the High Court 1980. (P.U. (A) 50/80). The defendant also failed to appear on 7th October, 2008 for the first MENTION. Also the request of (c) of enlarging the time for filing the defence should not be entertained as the defendant’s Summons is out of time and itself an abuse of the Courts.
    4.1 The ground that “my Writ 2” be struck out was “that it is an abuse of the process of the court” a subjective stance without proper knowledge of what I had been doing since March 2004 over General Elections 2004 which has a direct bearing on General Election 2008. The learned Chambers Encyclopedic English dictionary gives the appropriate meaning of ‘abuse’ is “to use one’s position and power wrongly” when I do not have position and power even as deputy President of Consumers’ Association of Sabah and Labuan FT and instead it is my personal legitimate right to pursue the only course of action for a worthy cause in the public interest and national concern when all else including the Legislative (Parliament), the Federal Cabinet (Executive) fail to address the crucial and essential part and parcel of a just society which falls rightly into the jurisdiction of the Courts as the Judiciary arm in the process of check and balance in nation building. Where would the abuse be when I comply with the rules of the High Court? Rather the defendant has abused its position and power in the pursuit of the strike out of “my Writ 2” even out of the time stipulated for such action for the second time. This is one of three Civil suits in the Courts in my sixty years in Sabah, when the first one was misplaced by my solicitors in 1990 and the other two are on General Election 2004 and General Election 2008. I did not file any suit against the Government when I was detained without trial under Section 5(6) Preservation of Public Security Regulations 1962 for 11 months in 1973/74, which I believe the Government and its agents then had abused its power when my case did not present any security scenario then and the leaders concerned were vindictive. The Permanent Secretary to the Chief Minister then is a holder of identity card with a code 71. The detention order (Regulation 4) dated 31st day of July 1973 did not contain the name of the Federal Secretary, Sabah marked “JK14-1”.
    5. In reply to paragraph (a) of the Defendant’s Summons, I aver that “my Writ 2” is not ‘an abuse of the process of the court’ based on the ground of Federal Constitution Article 118. Federal Constitution 118 and 118A when read together can be applied to “my Writ 2” filed within the stipulated time of the Gazette of the results of the General Election 2008 held on 8th March 2008. According to Law Professor Dr. Shad Saleem Faruqi at the Universiti Teknologi Malaysia (UiTM) and he said “the Constitution of Malaysia is rich and one can interpret it in many ways.” So article 118 should be examined and interpreted accordingly when alleged frauds of “my Writ 2” with implications and ingredients in the Election Offences Act 1954 [Act 5] and 118A is specifically applicable when the returns on 8th March or 9th March 2008 for the National Parliament and State assemblies were defective according to the major arithmetic discrepancies as laid out in “my Writ 2” as summarised in schedules marked “JK-PR5” to “JK-PR9” as per Police Report reference - Luyang/001100/08 of 8th April, 2008 herein referred to as PR. “My Writ 2” sealed on 25th April, 2008 within 21 days of the Gazette’s date of the Official Results of 8th April, 2008 as valid was intended to ensure that the defendant retains all the electoral records including ballot papers as per paragraph 3 of “my Writ 2”. It is not an abuse of the process of the Court for reasons as laid out below:-
    5.1 I had issued adequate warnings of frauds and irregular conduct of the General Election 2008 like I did for General Election 2004 as soon as the results were announced via the mass media and the Internet’s official website of Election Commissions herein referred to as “Official Website” on the night of 8th March 2008. The warnings were done prior to the General Election 2008 as an ongoing exercise of whistle blower since General Election 2004 until June 2008 by letters to the Press, despatched by facsimile to the DYMM Seri Paduka Baginda Yang Di-Pertuan AGONG X111, Al-Wathiqu Billah Tuanku Mizan Zainal Abidin ibni, Al-Marhum Sultan Mahmud Al-Muktafi Billah Shah D.K.T., D.K.R., D.M.N.. S.S.M.T., S.P.M.T., D.K. (Perlis), D.K. (Johor), D.K.M.B. (Brunei), D.K. (Perak), D.K. (Negeri Sembilan), D.K. (Kedah), D.K. (Kelantan), D.K. (Selangor), S.P.M.J., Commandeur De La Legion D'Honneur (France), and to Election Commission and other leaders as per schedule marked “JK14-2”.
    5.2 The Returns of all contested seats by the Returning Officers on 8th March, 2008 were downloaded from the Official Website on 9th March 2008 with some done on 15th March 2008. The data and structure in the Official Website is better organised than that in General Election 2004. So I had to rely on this material for filing “my Writ 2” on 25th April, 2008 within 21 days of the Gazette date of the results on 8th April, 2008 which also coincided with my lodgement of PR for prompt action to retain in safe custody those time sensitive electoral documents. According to Regulation 27 of Elections (Conduct of Elections) Regulations 1981 (PU (A) 386/81) herein referred to as the Elections Regulations, only one set of results would be returned on the night of counting hence the results in the Official Website are valid. Unfortunately, I could only served “my Writ 2” on the defendant on 26th May, 2008 after the Election Commission had likely destroyed most records and documents as per press report marked “JK14-3” not in accordance to Regulation 25 paragraph 15 of the Elections Regulations. I did submit the PR on General Election 2008 to the Sabah Election Commission office in a letter addressed to the defendant and Human Rights Commission of Malaysia (Suhakam) dated 10th April, 2008 marked “JK14-4”. Even the Official Gazette of General Election 2004 was not free from errors or omissions, I did not want to delay appropriate action for PR and “my Writ 2” waiting for the Official Gazette which may only be available for public consumption much later. I believe that if the Official Gazette were really available on 8th April, 2008 a complete copy of that should be available for the public in all the State offices of the Election Commission.
    5.3 Without the Official Gazette, I submitted PR and “my Writ 2” based on the analysis of those available records in the Official Website which contained arithmetical discrepancies on analysis.
    5.4 I had dwelled at length as how I overcame phobia over lodging Police Reports in the Affidavit in Opposition for the General Election 2004. On 8th April, 2008 I lodged the PR, it was my 23rd one from a revived effort since late 2004 following the Special Commission To Enhance The Operation And Management of the Royal Police Force.
    5.5 “My Writ 2” is a repeated response to the challenges by the defendant over a series of public statements in the mass media as I wrote in my Affidavit in Opposition to my Writ of Summons on General Election 2004 K21-10 of 2008 under the paragraph 5.12 marked “JK14-8“
    6. Further to the response as in paragraph 5 above with regards to the requirement of Federal Constitution Article 118, I aver that “My Writ 2” is in compliance with this article when we read the other article 118A together in the deeming provision thereof. Federal Constitution needs to be considered in various circumstances and matters in the following factors:-
    6.1 While we respect the Federal Constitution despite amended almost 600 items, Article 118 is usually applicable in normal circumstances as in individual contested seat, “my Writ 2” is concerned with the whole General Election 2008 with specific complaints on the conduct of the Election Commission of its questioned quality throughout the nation .
    6.2 Not asking for a general or judicial review of the conduct of the General Election, “my Writ 2” brings out the specific complaints on the defective returns as it was in General Election 2004 which have misled the YDP Agong and various Sultans and Heads of States on the night of polling after counting for the purpose to instal the Governments (Federal and States) except for the Sarawak State Government and permitted under Federal Constitution 118A. The spirit of the Federal Constitution is for integrity, rule of laws and universal principle of justice.
    6.3 In the public interest and grave national concern, Article 118 alone should not be relied upon when “my Writ 2” highlights the frauds, electoral rigging, misconduct of the General Election by the defendant. In fact, the issues raised in “my Writ 2” have also violated other Articles of the Federal Constitution when illegal people were and still are in the electoral rolls and questionable people were and still are directly involved with the General Election as candidates and other roles.
    6.4 There are other violations of the Constitution (Federal and State) in the following simple scenarios as follows:-
    Particulars:-
    6.4.1 The position of the Deputy Prime Minister in the Federal Cabinet of Ministers is also a violation of the Federal Constitution (Article 43 (2) (a). Was it not In the public interest and practicality, that such position was created for a long time already for political expediency?. Are any Prime Ministers of Malaysia not born in Malaya or Malaysia? (Article 43 (7).
    6.4.2 The three Deputy Chief Ministers of Sabah State Cabinet are also violations of the Sabah State Constitution chapter 2 article 6 (2). The Sabah State constitution has been likely violated as some Heads of State and Chief Ministers are likely not born in Sabah -chapter 1 article 2(1) and chapter 2 article 6 (4) respectively.
    6.4.3 There are articles in the Petroleum Development Act 1974 [Act 144] marked “JK14-5” as follows:-
    Article 3 (2) states “The Corporation shall be subject to the control and direction of the Prime Minister who may from time to time issue such direction as he may deem fit.”
    Article 3 (3) states “Notwithstanding the provisions of the Companies Act 1965, or any other written law to the contrary, the direction so issued shall be binding on the Corporation.”
    The said statute under which Petronas is operating has superseded the supremacy of the Federal Constitution, State Constitutions and other laws. Would the Prime Minister be deemed to hold an office of profit and as a deemed director in contravention of Federal Constitution 48 1 (c)?
    6.5 “My Writ 2” also raises certain specific issues of the faulty electoral roll, a specific questionable person as candidate amongst others in similar status and the erroneous Returns as per Regulation 27 of Elections Regulations as some amendments were done months later in the Official Website. The defendant mulled re-registering 11 million voters to stop fraud after General Election 2008 on May 26, 2008..
    7. I also aver that I have the right to dispute the outcome of the General Election 2008 for the following factors:-
    7.1 Every voter as aggrieved has the right to bring an election petition challenging the results of the return of the candidate concerned in the respective constituency - Article 34 of Election Offences Act - A5.
    7.2 In common law or criminal law, a crime against humanity is a crime by whatever name. In the universal context in civil and political rights, every one has the right to take up a complaint on any such crimes committed by anyone in the public interest. What is now more imperative that I have to dispute the outcome of the General Election 2008 when alleged frauds have been committed and exposing them in various avenues including the Courts for such developments as follows:-
    Particulars of developments
    7.2.1 How I wish the defendant and the Prime Minister had told us the perception of no right to query the outcome of the General Election 2004 rather than telling us to go to the Courts to prove the Election Commission wrong. So the Courts should heed the intentions of the defendant and the Prime Minister who asked for this trial repeatedly. When the defendant made that kind of bold statement but now challenged, why should it be that “my Writ 2” and “my Writ” for General Election 2004 be struck off? The case of Prime Minister ordering the Attorney General not to be involved with the Anwar Ibrahim case was relied on the transfer case overriding the relevant articles of the Federal Constitution. Similarly, the direction of the Prime Minister in Petroleum Development Act as referred to in paragraph 6.4.3 are binding on the Corporation, notwithstanding all other laws including Federal Constitution. Petronas Annual Accounts go direct to the Prime Minister and not presented in Parliament.
    7.2.2 In our official duty as civil servant as I was once the Examiner of Accounts - a Division II position- with sparse training in the Federal Audit Department for about four years where I can claim that I had raised queries to the values of up to Twenty Millions Ringgit in the early 1970s but I was not acknowledged. If I had got hold of the elusive tax file of the then Chief Minister of Sabah, I could have struck the gold mine. How I wish that someone had told me that I had no right to raise those queries as part of public responsibility as the ‘victims’ were offended by my action and many such ‘victims’ unknown to me have not forgiven me. I also knew some staff members under me never raised any queries to stay out of unforeseen personal adverse consequences.
    7.2.3 Is it not a fact that there is a civil responsibility in society that we report to the appropriate authorities when serious crimes had been committed by someone known or unknown. I have lodged 26 Police Reports of almost 1,000 pages worth RM11.441 trillions for the period 2004-2008 marked “JK14-9“ with several of them related to issues of General Election. I have also extended such Police Reports to the other authorities especially the Anti Corruption Agency (ACA) as part and parcel of civil responsibility. So far, I have yet to see positive actions if any by the appropriate authorities and Government agencies concerned. How I wish someone can come forward to tell me it is not my right to lodge Police Reports.
    7.2.4 Half of those 26 Police Reports embracing several alleged issues including corruption, abuses of power, frauds, criminal defamation and profligacy have one way or another connected with the election, identity cards, and three specific ones on General Election 2004 (2 reports) and General Election 2008.
    7.2.5 Do I really have no right to lodge Police Reports as nothing much appears to have done about those allegations? We are aware of the consequences of lodging Police Reports on the persons doing that. It is normal to expect the Police to wrap up all Police investigations with the relevant actions and most likely to be pursued by the Federal Attorney General on the offenders. When I have lodged three Police Reports on General Elections, may I ask inquisitively why alleged offenders including senior public officers are not touched and some stay on the jobs even with special extension beyond retirement age as in the case of the defendant in 2007?
    7.2.6 The rigged General Election 2008 is all over the places especially in the many forums of the Internet as it was for General Election 2004. Yet the Deputy Prime Minister made a statement as “No avenue to rig elections” marked “JK14-6“ which need to be substantiated in a proper trial. There were quite a number of Election Petitions on General Election 2008 in the High Court with mixed Judgements - some still pending. There is a new website titled “World Chart For The Your Country's Most Corrupted Politicians” where for Malaysia the defendant is amongst the eight early entries of names listed there. So I would call on the defendant as a civil servant for more than 40 years mostly at the Election Commission can be amongst most corrupted persons to clear that allegation with grievous implications of Section 32 (c) of Act 5. There is also an article alleging that the defendant under the name of his proxy had been given land as rewards for General Elections marked “JK14-7“. I intend to lodge Police Report on the Most Corrupted Website and the alleged land deals to the defendant .
    7.2.7 We are aware of the possibilities of lodging Police Reports and the Police is expected to pursue such cases within its jurisdiction and the Federal Attorney General’s office would be informed to pursue whatever actions deemed appropriate especially when alleged frauds and irregularities have been exposed in public interest. I do not know if any of such actions had been done by the Police and when the Police investigating the Police Reports needs more information, I would have furnished them as it has been done in some of the 26 Police Reports.
    7.2.8 The ACA had been furnished by me with my Police Reports but ACA refuses to accept any reports to be lodged at the ACA office in Kota Kinabalu. The reasons given were once such written reports are accepted, full investigation would proceed by ACA whose officers had indicated to me that the cases I brought up were beyond their power, jurisdiction or purview or simply ‘untouchable’.
    7.2.9 I would believe that the Police, the ACA, and other Federal and State Government agencies would be working in collaboration with the Federal or State Attorney General over any serious crimes of public interest.
    7.2.10 It is indeed a double whammy and a national disaster against public interest that instead of the Federal Attorney General acting on my Police Reports mostly on Federal matters or the State Attorney General on the state matters against those alleged offenders of public and private crimes, I am now served an out-of-time Court’s Application in Defendant’s Summon by the Senior Federal Counsel of the Federal Attorney General’s Chamber to strike out “my Writ 2”. Such action is deemed to be in defence of public officers as offenders instructing me of no right whatsoever to raise such important matters in the Courts.
    7.2.11 The defendant has not challenged my book titled “Malaysian General Election March 2004 - A case of victory - landslide or rigslide” ISBN 978-983-2653-31-8 published in early October 2007 and extended courteously enlarged copies of pages 1-31 to the Election Commission in late October 2007. How I wish the defendants now tell me not to write books even on General Election as it is their exclusive rights to dominate the repeated alleged electoral crimes.
    8. I also aver that I am not restricted by the requirement of the Election Offences Act 1954 [Act 5] as the facts of this case involve issues of discrepancies not apparently specified in the provisions of Election Offences Act 1954 [Act 5] but such discrepancies are caused by various designs including electoral frauds which can be identified to be under Act 5 in particular Part II sections 3 and 4 and I further like to elaborate on this area as follows:-
    8.1 It is public knowledge that lots of Police Reports on legitimate items of Election Offence also filed with the Election Commissions nationwide were made in several recent General Elections especially in General Election 2004 and General Election 2008 as soon as after the Parliament thereof was dissolved. Instances of Election Offence within the purview of Act 5 as in campaigning were observed even prior to dissolution of parliament and nominations of candidates. Had any real action under Act 5 being pursued by the Election Commission on those known culprits? Show me the records. The Sabah ACA also expected the voters to respond to its call “Report vote-buying” on General Election 2008 marked “JK14-6“
    8.2 An appearance in the Courts was the Sabah State seat N13 Likas 1999 where the landmark Court decisions still stand but delayed over the six months allowed for election cases on June 2001. It was such an elaborate exercise that major rulings were made on Election Offence, faulty roll, and phantom voters. Did the Election Commission play any significant role here? Were it not for the aggrieved candidates that the case had brought some short term relief for the State and nation? Why were the rulings in the case not followed through by the appropriate authorities including Election Commission and the National Registration Department as part and parcel of the valid electoral roll for subsequent General Elections? Should not now that Election Offences Act be amended to include violations of the Electoral roll on the part of the voters, the Election Commission and the National Registration Department? When N13 Likas 1999 was declared null and void, a by election ensued and the relevant authorities escaped with impunity over a very faulty electoral roll.
    8.3 We have seen how the Election Commission has been quiet when such incidences of Election Offence had been committed in so many ways by the incumbent parties. Then recently the Election Commission Chairman asked for power to prosecute offenders of Election Offence as likely a red herring. I would have thought the Federal Attorney General has the power to conduct such prosecution on behalf of the Election Commission and the National Registration Department as the Senior Federal Counsel is now defending them against “my Writ 2”.
    8.4 “My Writ 2” and I do fulfill the requirements of the Act 5 generally and specifically by the implications of section 32 (c) of Act 5 as what had been committed are genuine Election Offence by alleged collusion of some quarters including the Election Commission. The grounds for “my Writ 2” are adequately justified in the Writ itself and the points raised herein hence equity prevails like substance over form. Act 5 is a form and substance in “my Writ 2” should override all else for justice, public interest, fair and free election. When the substance is examined by the Court, we may identify the relevant Election Offence to certain items under Act 5 in particular Part II section 3 and 4 that had given rise to the arithmetical discrepancies of the Issued Ballot papers.
    8.5 The substance of “my Writ 2” largely based on official records in summarised analysis “JK-PR5” to “JK-PR9” to show the status of all probabilities of the illegal Governments of Federal and States based on defective returns on the night of polling and counting. It is now for the Courts to examine them in the context of Act 5 to ascertain the extent of such defects and frauds due to the people involved with the General Election and make appropriate declarations.
    8.6 Such appropriate declarations and Judgement as in N13 Likas 1999 should be made mandatory and supervised by the Courts and the defendant should be made to adhere to such declarations accordingly. In the Suhakam’s Annual Report 2006 page 59, it was stated as “That the Election Commission ensures that voters on the electoral roll are true citizens of Malaysia” - Illegal Immigrants and Citizenship Issues in Sabah - Chapter 4. So the electoral roll for Sabah remain largely unchanged in implementation despite the landmark Judgement of N13 Likas 1999.
    8.7 I have also lodged a few other related Police Reports on Project IC and Extra People Identity Cards backed up by three books. There are a few other voluminous books written about the same issues that cannot be disregarded for fair and free elections in the context of security and sovereignty of the State and the nation. The related reports are Extra People IC -KK/Rpt/23408/04 on 28 October 2004; UMNO Sabah’s members - KK/Rpt/27530/04 on 21 December 2004; Project IC / Mahathir Karamunsing/Rpt/0227/2006 on 21 June 2006 jointly with Consumers’ Association of Sabah & Labuan FT (CASH); “Our security & sovereignty” Karamunsing/003948/07 on 16 March 2007 jointly with CASH; Gangster SOH See Yee SSY Luyang/002101/07 on 15 June 2007; Datuk Dr. Patawari Hj Patawe Karamunsing/008725/07; on 15 June 2007; EPIC OF SABAH - some VIPs Karamunsing/011997/07 on 07/07/07; Pakistani’s MyKad & Paspot Luyang/001099/08 on 8 April, 2008; Malaysia Agreement & breaches Karamunsing/008525/08 on 6 June 2008 and Adun Nilwan Kabang & MyKadnya Luyang/002073/08 on 11 July 2008. (JK14-9)
    8.8 Amongst the issues of the Police Reports in 8.7 are foreigners and illegals as dubious Malaysians are in the electoral roll, dubious Malaysians are also members of UMNO, serious crimes are accomplished by ‘locals’ using holders of questioned identity cards; foreigners with questioned identity cards can have one year passports and as voters; how someone with code 71 was elected assemblyman in General Elections 1999 and General Elections 2004; how many Chief Ministers of Sabah including the present one are not born in Sabah; how someone with a questioned identity card was allowed to be an elected assemblyman in General Election 2008 and how many others are also questioned citizens in violation of Elections Laws and no prosecution was pursued?
    8.9 The Returns on the night of polling and counting based on Act 5 were themselves defective ones for the omission of items of frauds and irregularities now identified by “my Writ 2” for the failings, failures and shortcomings of the Act 5 itself not properly pursued in accordance for fair and free elections. Actually the irregularities identified by “my Writ 2” are simply arithmetical logic without any specific law to prevail. The defendant did not take appropriate measures to ensue the Returns of the results were not defective due to the identified arithmetic discrepancies also exposed for General Election 2004. Hence this complaint is valid under the Federal Constitution of 118A and 118 apart from other provisions of good governance in statutes and otherwise. The ACA did make some noises during the tenure of the General Election but the Election Commission did not appear to have taken cognisance of that fact and once the Governments were formed as defective as they were, it is now beyond anyone to challenge the outcome of the General Elections 2008 as questionably claimed under Federal Constitution article 118 and Act 5 in this case.
    9. I also aver that the facts of this case involves great public interest and national concern and therefore it should be tried expediently on substance not form. The alleged ‘abuse of the process of the Courts’ does not arise under the Order 18 Rule 19 1 (d) as per Defendant’s Summons and “my Writ 2” is not specifically prohibited by Article 118 and / or Act 5 for their inherent shortcomings while Article 118A, other legal interlocutions and precedents legal or otherwise as elaborated in this Affidavit especially in paragraphs 6.4.3., 7.2.1 and 8.5 would permit “my Writ 2” of substance to go on. Substance such as unexplained and unverified arithmetic discrepancies as ingredients of Act 5 as identified in “my Writ 2” as it was in General Election 2004, faulty official results in the Returns under 118A, faulty electoral roll, challenges and dictum of some relevant people in high positions and the ultimate truth over the implicated electoral frauds prevailing without doubt after my three Police Reports and my book on General Election 2004 all unchallenged by the defendant must be established by a proper trial rather than sweeping it under the proposed “strike off” order when the Federal Constitution is to uphold integrity rather than oppress the inconvenient truth as in this challenge..
    10. In the premises, I pray for an order that this application to strike out for want of authority be dismissed with costs since the issues raised in my WWrrit of Summons are valid, justified in public interest and do not lack appropriate authority written or otherwise, done in legitimate civil and political rights and no abuse of the process of the Courts.

    Affirmed by the said )
    )
    Kong Yun Chee @ Joshua Kong )
    )
    At the Kota Kinabalu, in the state )
    )
    of Sabah , )
    )
    This .25.. day of November 2008 ) .................................................

    Before me









    .................................................................









    This Affidavit in Opposition affirmed to on .. ....25....November 2008 and filed on ...25....November 2008....Is taken out by the Plaintiff acting in person whose address for service is at Taman, Lorong 5, off Jalan Lintas, Kolombong 88450 Kota Kinabalu or preferable at P. O. Box 11923, 88821 Kota Kinabalu, Sabah.

    ReplyDelete
  9. Submission 2 for GE 2008




    In the High Court At Kota Kinabalu Registry - 8th Oct 2008
    Suit No. K21-14 of 2008
    Joshua Kong Plaintiff:
    Election Commission Chairman Defendent:
    1. Your honour, I am a Chartered Accountant and have summarily analysed the Official results of GE 2008 [like I did for GE 2004 (Gazette)] downloaded from the official website of the Election Commission namely http:pru12.spr.gov.my., on the 9th March 2008 and found many discrepancies (DI) of the issued ballot papers of the Parliament and the State seats as per schedules in the Writ marked “JK- PR5” and “ JK-PR6” and discrepancies in ballot papers not returned in “JK-PR9” with a sample of the discrepancies (DI) of six significant ones in “JK-PR7” and “JK-PR8”.
    Any discrepancies is unacceptable and 54 of 166 Parliament seats (56 not comparable) have discrepancies of 51-200 ballot papers issued, affecting 156 of the 505 state seats, “JK-PR5” the said returns for the formation of Parliament and State Assemblies are deemed to be faulty.
    As the Government (Federal and State) was declared past midnight on 9th March, 2008, the return was defective hence this complain under Article 118A of the Federal Constitution. The subsequent amendments of the results after 9th March 2008 are meaningless and rrelevant if not verified independently and accordingly with the source documents. Such amendments only confirm the faulty or defective returns as the results overall were close with a few of states getting a few more seats to form the State Governments and the BN lost its two third majority in Parliament. Rigged General Elections is the root of today’s political instability and economic turmoil.

    1. Yang Arif, saya adalah Akauntan Bertauliah dan analisa yang di buat atas data-data yang ada di lamen web SPR disenarikan di “JK-PR5” dan “JK-PR6” dalam Writ untuk berbedzaan Kertas Undi DiKeluarkan (KUD) -Kawasan Parliamen dan kerusi negeri dibawahnya - samada berbedzaan kertas undi tidak dikembalikan di “JK-PR9” dengan contok bagi enam kawasan (KUD) di “JK-PR7” and “JK-PR8”.
    Berbedzaan sebagai itu tidak diterima dan 54 diantara 166 Kawasan Parliamen (56 tidak dibandingkan) nampaknya ada berbedzaan dengan 51-200 kertas undi dikeluarkan (KUD) berkaitan 156 daripada 505 kerusi negeri “JK-PR5”, ‘penyata rasmi’ bagi bentukan Dewan Rakyat dan Dewan Negeri masing masing tidak sah.
    Kerana Kerajaan (Persekutuan dan Negeri) telah diisytiharkan pada masa awal pagi 9hb Mac 2008, penyataan itu adalah tidak sah dengan aduan ini dibawah artikel 118A Perlembagaan Persekutuan. Pindaan selepas 9hb Mac 2008 tidak ada makna dan irrelevan jikalu tidak disahkan oleh kuasa yang bebas dan dengan dokumen-dokumen yang asal. Pindaan yang buat demikian hanya mempastikan ‘penyata rasmi’ tidak sempurna kerana keputusan-keputusan seluruhannya adalah tipis dengan dua /tiga negeri bentuk kerajaan dapat ‘a few more seats’ dan BN hilang dua pertiga majoriti di Dewan Rakyat. Pilihan Raya Umum yang kurang sah menyebabkan masaalah keutuhan (stabiliti) politiik negara dan krisis economi.

    2. Your honour, I was with the Federal Audit Department 1969 -1974 (11 months half pay) and was EC election official twice for Parliament and General Elections in Sabah. I had been an independent candidate twice in 1986 and 2001 (with similar preparation for other times but aborted) and I did almost everything myself fully involved with the electoral process and procedures as candidate and election agent. With this background and widely read plus public information, I am confident with this action on the General Elections ranging from Police Reports, Election Commission, Anti Corruption Agency and now in the High Courts.
    Page 1 of 2

    2. Yang Arif, Saya telah bekerja dengan Jabatan Audit Persekutuan 1969-1974 (11 bulan tengah gaji) dan buat SPR’s pegawai pilihan raya -dua kali- untuk Parliamen dan Pilihan Raya Sabah. Saya telah jadi calon bebas pada 1986 dan 2001 (dengan pengalaman bagi lain peluang tapi tidak jadi) dan saya telah buat sendiri semua tugas sebagai calon dan ajen pilihan raya. Dengan pengalaman itu dan lain-lain, saya yakin dalam tindakan ini atas pilihan raya merangkumi Laporan Polis, Suruhanjaya Pilihan Raya, Badan Pencegah Rasuah dan sekarang di Mahkamah.

    3. Your honour, For fair and free election and natural justice of paramount importance, the Election Commission must be seen to have done its work above all doubts especially on polling day that ended with proper counting of votes verifiable with the official records in their hands and disseminated them in professional manner so that we have legitimate Governments. The EC may have been doing its role for more than 51 years and the incumbent Chairman for 7 General Elections, this trial would be desireable to clear all the allegations and accusations of electoral rigging including major election offence coming from many quarters recently. EC Chairman Tan Sri Rashid Abdul Rahman has repeatedly ‘ask for it’ to bring this alleged rigging case to the Courts. Unless this case with several major triable issues in the Writ and GE 2004 are properly heard in this Court and results and conduct of general election properly verified with all official records, the Governments (Federal and State) are deemed illegal. Hence my pleadings in paragraph 12 of 7 items amongst others in my Writ of Summons must be properly dealt with by the Courts as soon as possible. This case can contribute as a priority to the enhancement of proper conduct and address the shortcomings including the retention of voting records of the General Election in future - a win-win scenario for the nation.

    3. Yang Arif, Untuk pilihan umum yang adil dan bebas sambil keadilan seluruhannya paling diutamakan, Suruhanjaya Pilihan Raya (SPR) mesti dinampak buat kerjanya tanpa kesangsian khasnya pada hari pengundian dengan kiraan undi yang disahkan dengan dokumen rasmi dalam tangannya dan menyibarkan data-data dalam cara teratur and professionalisme supaya jadi Kerajaan yang sah. SPR mungkin sudah buat tugasnya selama lebih daripada 51 tahun dan Pengerusi nya selama menjalankan 7 pilihan raya umum, bicara ini semestinya perlu untuk ‘bersihkan’ semua allegasi dan tuduhan atas tipuan pilihan raya termasuk kesalahan besar pilihan raya daripada banyak kaum dan persatuan sedekat ini. SPR Pengerusi Tan Sri Rashid Abdul Rahman telah beberapa kali minta kes PRU ini dibawa ke Mahkamah. Jikalau kes ini dengan beberapa isu utama di Writ dan GE 2004 tidak di bicarakan sepatutnya dan keputusan sambil perlaksanaan tidak di rujuk atau disemak dengan dokumen asal, Keraajaan Persekutuan dan Negeri- negeri disifatkan tidak sah. Sebab itu, permintaan say di fasal 12 bagi 7 perkara diantara lain dalam Writ of Summons mesti ditangani oleh Mahkamah sewajarnya ini secepat yang mungkin. Kes ini boleh beri dengan utamanya tambah membaikkan perlaksanaan dan tangani berbagai masaalah Pilihan Raya Umum termasuk simpanan dokumen undi dalam masa hadapan - iaitu menang-menang seluruhannya bagi negara kita.

    Your honour / Yang Arif,
    Please allow this case to go forward as it is like a national service for me for all.
    Sila luluskan kes ini di bicarakan sebagai saya buat perkhidmatan negara untuk semua.


    Joshua Kong Plaintiff
    NB: The English version is more reliable.
    Page 2 of 2 NB: This was submitted to the Judge on the MENTION date 7th October 2008.

    ReplyDelete
  10. AFFIDAVIT IN REPLY IN OPPOSITION TO 1ST DEFENDANT
    in two parts


    MALAYSIA
    In the High Court in Sabah and Sarawak at Kota Kinabalu
    Suit No. K21-10 of 2008
    Between
    Joshua Kong Yun Chee Plaintiff
    and
    Election Commission Chairman 1st Defendant:
    National Registration Department 2nd Defendant
    Government of Malaysia 3rd Defendant

    AND
    Suit No. K21-14 of 2008
    Between
    Joshua Kong Yun Chee Plaintiff
    and
    Election Commission Chairman Defendant:

    AFFIDAVIT IN REPLY IN OPPOSITION TO 1ST DEFENDANT
    in two parts

    I, Kong Yun Chee @ Joshua Kong (NRIC 480823-12-5003) of Taman, Lorong 5, off Jalan Lintas, Kolombong, 88450 Kota Kinabalu, Sabah, a Malaysian citizen of full age do affirm and say as follows:-
    1. I am the above-named Plaintiff of the two Writs of Summons filed on 25th February, 2008 (K21-10 of 2008) hereinafter referred to as my Writ 1 and the other Writ filed on 25th April, 2008 (K21-14 of 2008) hereinafter referred to as my Writ 2, as now consolidated and the matters deposed herein are within my personal knowledge and belief unless otherwise stated.
    2. I am a Chartered accountant.
    3. I crave leave to refer to my Writ 1 and Writ 2, and the following submissions as per list below:-
    3.1 Writ 1
    3.1.1 My submission on 4th November 2008 hereinafter referred to as my submission 1,
    3.1.2 The Affidavit in Opposition for ‘strike out‘ application on 14th November 2008 hereinafter referred as Opposition 1 also referred to as Plaintiff’s 1st Affidavit by 1st Defendant in the Affidavit dated 23rd December, 2008;
    3.1.3 The Affidavit in Support on 2nd December 2008 hereinafter referred to as Support also referred to Plaintiff’s 2nd Affidavit by 1st Defendant in the Affidavit dated 23rd December, 2008
    3.1.4 The Affidavit in Support 2 on 9th December 2008 hereinafter referred to as Support 2 also referred to as Plaintiff’s 3rd Affidavit by 1st Defendant in the Affidavit dated 23rd December, 2008.
    3.2 Writ 2
    3.2.1 My Submission on 15th October 2008 hereinafter referred to as my submission 2.
    3.2.2 The Affidavit in Opposition for ‘strike out‘ application on 25th November 2008 hereinafter referred to as Opposition 2 also to be referred to as Plaintiff’s 4th Affidavit;
    4. Terms used in this Affidavit are referred to as follows:-
    4.1 Headquarters is the Federal Attorney General’s Chamber in Putrajaya.
    4.2 Sabah office is the office of the Federal Attorney General’s Chamber in Kompleks Pentadbiran Kerajaan Sabah at Block A, Aras 5.
    4.3 Federal Constitution Articles 118, 118A are hereinafter referred to as 118 and 118A respectively.
    4.4 Election Offences Act 1954 [Act 5] is hereinafter referred to as Act 5.
    4.5 Elections (Conduct of Elections) Regulations 1981 (P.U. (A) 386/81 is hereinafter referred to as Election Regulations.
    4.6 Elections Act 1958 is hereinafter referred to as Act 19.
    4.7 Senior Federal Counsel is hereinafter referred to as the Defending Counsel.
    5. I crave leave to refer to the Affidavit of the 1st Defendant to Writ 1, Plaintiff’s 1st, Plaintiff’s 2nd, Plaintiff’s 3rd Affidavit hereinafter referred to as 1st Defendant’s 1st Affidavit and Affidavit of the Defendant in reply to Writ 2 and Plaintiff’s 4th Affidavitt hereinafter referred to as Defendant’s 2nd Affidavit. The use of the word “respectively” in both Defendant’s Affidavits’ last paragraph is doubtful while number of the Headquarters’ file reference of 34 instead of 32 in page 8 of 1st Defendant’s 1st Affidavit is misleading.
    6. I will present this Affidavit in reply in opposition in two parts herein namely Affidavit in reply in opposition to 1st Defendant’s 1st Affidavitt hereinafter referred to as Plaintiff’s 5th Affidavit part 1 and Affidavit in reply in opposition to Defendant’s 2nd Affidavit hereinafter referred to as Plaintiff’s 5th Affidavit part 2.
    7. The Order for consolidation of the two cases was made by the Judge Datuk David Wong Dak Wah upon the hearing in Chambers on 30th December 2008 on the Plaintiff’s Summons in Chambers dated 17th December, 2008. This Affidavit in reply in opposition also known as Plaintiff’s 5th Affidavit to the two common Summons in Chambers on the ‘strike out’ applications by the Defending Counsel on behalf of the defendants in Writ 1 and Writ 2 is done in two parts to enable separate judgement for the two Writs.
    8. Plaintiff’s 5th Affidavit Part 1 - Affidavit in reply in opposition to 1st Defendant’s 1st Affidavit - Suit K21-10-2008
    This is reply in opposition to the 1st Defendant’s 1st Affidavit
    8.1 With regards to paragraph 3 (a), I had served Opposition 1 also referred to as Plaintiff’s 1st Affidavit to the Sabah office after I had faxed it earlier to the Sabah office on 14th November 2008 with a notice to Headquarters in Putrajaya and I had it served on 19th November, 2008 to the Sabah office as acknowledged by one “Latifah Kadir” and Affidavit of Service filed on 2nd December, 2008. 1st Defendant stated that it was served on 26th November, 2008 which is incorrect.
    8.1.1 With regards to paragraph 3 (b), I was supposed to hand Support also referred to as Plaintiff’s 2nd Affidavit to the Defending Counsel at the Court’s hearing on 5th December, 2008 but the delay of the arrival of Defending Counsel did not allow me to do that, and so I delivered it to Sabah office on 22nd December 2008 and received by one named as Ahmad Daud at the Counter as the next hearing fixed for 16th December 2008 was later adjourned for 30th December, 2008.
    8.1.2 With regards to paragraph 3 (c), Support 2 also referred to as Plaintiff’s 3rd Affidavit was faxed on 9th December, 2008 with the covering letter also faxed to the Headquarters and Support 2 delivered to the Sabah Office on 22nd December 2008 and received by one named as Ahmad Daud at the Counter.
    8.1.3 With regards to paragraph 4, I despatched by facsimile mail first to expedite attention and then delivered to the Sabah Office as there is a policy of one Government office. I did send one item for the other case K21-14 of 2008 to the Headquarters by AR Registered post reference RD157874145my on 17th October 2008 and I did receive back the post card date stamped on 22nd October, 2008 but there was no acknowledgement letter or note to confirm that the Defending Counsel had indeed received the said document. So I thought it would be safer to avoid the time gap of 5 days to Headquarters as I would be instantly acknowledged by the Sabah Office for me to submit the Affidavit of Service with the details. Also after receiving a partial fax on the Memorandum of Appearance from the Headquarters dated 5th June, 2008, I then wrote back a letter dated 10th June 2008 and faxed it to the Headquarters for some clarification if I had received all the pages. There was no reply. Also I did deliver a piece of document to Defending Counsel Mr. Steve Retikos just outside the High Court 2 on 5th November, 2008 and filed the Affidavit of Service on 2nd December 2008. So I hope that I can continue to file my documents with the Sabah Office by way of fax and personal delivery.
    8.2 With regards to paragraph 7, I will deal with this in my skeletal submission in reply as there are the legal authorities that allow the High Court to deal with such cases in public interest.
    8.3 With regards to paragraphs 8, 9, 10, 11, I believe the 1st Defendant has relied on these two sections namely Section 33. (1) of Part VII of Act 5 which states “Every election petition shall be tried by the Chief Justice or by a Judge of the High Court nominated by the Chief Justice for the purpose and 118 on the method of challenging election as “No Election to the House of Representatives or to the Legislative Assembly of a State shall be called in question except by an election petition presented to the High Court having jurisdiction where the election was held.” Section 33 (1) appears to have violated 118 with new condition as 118 was not amended accordingly. This will be dealt with further in my skeletal submission in reply.
    8.4 With regards to paragraphs 12 and 13, I had already explained why the time of Act 5 cannot be applied without the complete results in the Gazette then and that when frauds are suspected the said limitation is irrelevant while six years is a reasonable limitation to resolve issues raised by me.
    8.5 With regards to paragraph 14 and 15, there is always the first time and in this an order from the High Court. There was a caretaker Government in 1969 established under an emergency provision but this time around, such a feature has to take another form as the reason of a caretaker Government is desirable to resolve a different set of national problems arising from electoral frauds and defective returns on polling day as per Support 2 or Plaintiff’s 3rd Affidavit paragraphs 6 and 7. What Lim Kit Siang did was not the same as what I expect to see in place.
    8.6 With regards to paragraph 16, it is still a valid argument that the supposedly superior Federal Constitution is violated by other subsequent laws, statutes and practices at variance with the supreme laws. In the same vein, 118 if it is considered a hindrance can be similarly sidelined in the public interest.
    8.7 With regards to paragraphs 17 and 18, it has been established beyond doubt that the Electoral Roll especially in Sabah is faulty with the inclusion of hundreds of thousand of questionable citizens as such incidences were observed in the Judgement of N13 Likas in 1999 as mentioned in Writ 1’s paragraphs 9 and 10, Opposition 1 or Plaintiff 1st Affidavit’s paragraph 8.2 and I crave leave of this Honourable Court to refer this to the paragraph 10.5 below.
    The recent amendment on the Electoral Roll not to be questioned after Gazette does not bring justice to the genuine voters and instead it is very much against public interest for such an enactment.
    18.8 With regards paragraphs 19, 20 and 21, I will deal with them in skeletal submission in reply as it is common for both Writs.
    9. I crave leave to refer to Opposition 1’s paragraph 7.7 where the exhibit therein marked “JK-D3-2” when the name of 1st defendant was named to be amongst the most corrupted person. The 1st defendant made no reference in his 1st Defendant’s 1st Affidavit and I would like to know if he had taken action to clear his name.
    10. Plaintiff’s 5th Affidavit Part 2 - Reply in opposition to Defendant’s 2nd Affidavit - Suit K21-14-2008
    This is reply in opposition to the Defendant’s 2nd Affidavit
    10.1 With regards paragraph 4, this has been dealt with in paragraph 8.1, 8.1.1, 8.1.2, 8.1.3 above. Suffice it for me to state that Opposition 2 was filed on 25th November 2008 with Affidavit of Service on 2nd December 2008.
    10.2 With regards paragraph 5, I will deal with this in skeletal submission in reply in addition to what is written in paragraph 8.3 above.
    10.3 With regards paragraphs 6, 7, 8, 9, I will deal with in skeletal submission in reply in the context of public interest.
    10.4 With regards paragraph 10 , I am not sure what is the defendant referring to when my Writ was filed within 21 days of the Gazette date of the GE 2008 although it was not designed as an Election petition as such as I stated in paragraph 3 of Writ 2 that the Writ was done promptly to avoid destruction of time sensitive electoral records.
    10.5 With regards paragraph 11, the issues I raised can be referred to Writ 2 paragraphs 9.1, 9.2, 9.3, 9.3.1, 9.3.2, 9.3.3 and Opposition 2 or Plaintiff’s 4th Affidavit paragraphs 8.6, 8.7 and 8.8 and my Submission 2 on 15th October 2008 in supplement page 3 and I crave leave that you refer to the paragraph 8.7 above.
    10.6 With regards paragraphs 12, 13, 14 and 15, this will be dealt with in detail in skeletal submission in reply as the issues raised are in common for the two cases now consolidated on 30th December, 2008. The Defendant in his retirement press statement declared that he would take legal action against anyone for personal attacks against him after he was no more the Chairman. One of such items alleging the defendant as corrupt was in paragraph 7.2.6 of Opposition 2 with exhibit therein marked “JK14-7” showing that allegation of Fuziah Salleh Member of Parliament Kuantan that “UMNO Pahang had awarded 400 acres of land to Election Commission Chairman” but defendant did not refer to that at all in Defendant’s 2nd Affidavit’s paragraph 13 except in a general denial in next paragraph 14. Had the defendant taken action on the declared stand after leaving office on 30th December 2008?
    10.6 Another new item on rigged election has now emerged as Raja Petra Kamarudin of Malaysia Today’s blog challenging the defendant to sue him over his published allegations on 31st December 2008 over rigging of General Elections 1999, 2004 and 2008 as per exhibit marked “JKGE-1”.
    COMMON FOR BOTH WRITS
    11. With regards to the “strike out” applications for Writ 1 and Writ 2 despite out of date as per Opposition1 also referred as Plaintiff’s 1st Affidavit’s paragraphs 3 and 4 and Opposition 2 also referred as Plaintiff’s 4th Affidavit’s paragraphs 3 and 4. The 1st Defendant’s Affidavit also known as 1st Defendant’s 1st Affidavit and Defendant’s Affidavit in reply also referred as Defendant’s 2nd Affidavit were much belated dated 23rd December, 2008 did not make any positive replies to the arithmetic discrepancies. In conjunction with these questionable “strike out” applications, I would like to refer to the Mazu case where the Judicial Commissioner of Sandakan High Court, Judge Yew Jen Kie ignored the application to strike out the suit by State Attorney General Roderic Fernandez and fixed the case for hearing proper as per exhibit marked “JKGE-3”. Other applications to strike out that case were also rejected. Similar treatment has to be accorded to these applications to strike out Writ 1 and Writ 2 for not complying with Courts rules hence itself abuse of the process of the Courts.
    12. I aver that I have a strong case in compliance with all the ingredients of electoral requirements not misconceived at all in any laws in particular A5, 118 and 118 A to be dealt with in my skeletal submission in reply and above all the compelling factor of public interest which are so vividly spelt out in a huge article of 163 pages by the Malaysian Bar on public interest as the most fundamental basis of justice with a front page and summary as per exhibit marked “JKGE-2”.
    13. So the Court need to examine all the triable issues as already spelt out in Writ 1, Writ2 and all documents filed with the Court as listed in paragraph 3 above and that the Court is a fitting venue to make the declarations in public interest for good governance and justice.
    14. In these circumstances, I respectfully pray for an order that the Applications for strike out be dismissed with costs.

    Affirmed by the said )
    Kong Yun Chee @ Joshua Kong )
    At the Kota Kinabalu, in the state )
    of Sabah , )
    This ......, day of January 2009 ) .................................................


    Before me





    .................................................................






    This AFFIDAVIT IN REPLY IN OPPOSITION TO 1ST DEFENDANT affirmed to on .13.....January 2009 and filed on ..13..January 2009 is taken out by the Plaintiff acting in person whose address for service is at Taman, Lorong 5, off Jalan Lintas, Kolombong 088450 Kota Kinabalu or preferable at P. O. Box 11923, 88821 Kota Kinabalu, Sabah

    ReplyDelete
  11. skeletal submission in reply to SFC’s submission dated 5 December 2008 and received on 30 December 2008
    plus the final verbal presentation at the lower end of this document.





    MALAYSIA
    In the High Court in Sabah and Sarawak at Kota Kinabalu

    Suit No. K21-10 of 2008

    Between

    Joshua Kong Yun Chee Plaintiff

    and

    Election Commission Chairman 1st Defendant:
    National Registration Department 2nd Defendant
    Government of Malaysia 3rd Defendant

    Suit No. K21-14 of 2008

    Between

    Joshua Kong Yun Chee Plaintiff

    and

    Election Commission Chairman Defendant:


    skeletal submission in reply to SFC’s submission dated 5 December 2008 and received on 30 December 2008

    Documents specifications as follows:-
    1.1 Suit No. K21-10 of 2008 hereinafter referred to as Writ 1
    1.1 My submission on 4th November 2008 hereinafter referred to as submission 1,
    1.2 The Affidavit in Opposition for ‘strike out‘ application on 14th November 2008 hereinafter referred to as Opposition 1 also referred to as Plaintiff’s 1st Affidavit by 1st Defendant in the Affidavit dated 23rd December, 2008;
    1.3 The Affidavit in Support on 2nd December 2008 hereinafter referred to as Support also referred to as Plaintiff’s 2nd Affidavit by 1st Defendant in the Affidavit dated 23rd December, 2008
    1.4 The Affidavit in Support 2 on 9th December 2008 hereinafter referred to as Support 2 also referred to as Plaintiff’s 3rd Affidavit by 1st Defendant in the Affidavit dated 23rd December, 2008.
    1.5 1st Defendant’s Affidavit dated 23rd December, 2008 hereinafter referred to Defendant’s 1st Affidavit
    1.6 Suit No. K21-14 of 2008 hereinafter referred to as Writ 2
    1.7 My Submission on 15th October 2008 hereinafter referred to as submission 2.
    1.8 The Affidavit in Opposition for ‘strike out‘ application on 25th November 2008 hereinafter referred to as Opposition 2 also to be referred to as Plaintiff’s 4th Affidavit;
    1.9 Defendant’s Affidavit in reply dated 23rd December, 2008 hereinafter referred to as Defendant’s 2nd Affidavit
    2 Terms used in this submission are referred to as follows:-
    2.1 Headquarters is the Federal Attorney General’s Chamber in Putrajaya.
    2.2 Sabah office is the office of the Federal Attorney General’s Chamber in Kompleks Pentadbiran Kerajaan Sabah at Block A, Aras 5.
    2.3 Federal Constitution Articles 118, 118A are hereinafter referred to as 118 and 118A respectively.
    2.4 Election Offences Act 1954 [Act 5] is hereinafter referred to as Act 5.
    2.5 Elections (Conduct of Elections) Regulations 1981 (P.U. (A) 386/81 is hereinafter referred to as Election Regulations.
    2.6 Elections Act 1958 is hereinafter referred to as Act 19.
    2.7 Senior Federal Counsel is hereinafter referred to as the Defending Counsel.
    2.8 Senior Federal Counsel’s Skeletal Submission is hereinafter referred to as the Defending Counsel’s submission.
    2.9 Return means result under Regulation 27 of the Election Regulation.
    3 This is a skeletal submission in reply to the Defending Counsel’s submission on ‘Strike out’ Application under Order 18 Rule 19(1)(d) of the High Court 1980.
    3.1 All the anomalies including delays of the two cases
    I would like to list all those items from the rules of the High Court 1980 when Section 42(1) of the Act 5 states as “The procedure and practice on election petitions shall be regulated by rules of the Court.”, and the defendants and defending counsel have failed in the following areas:-
    Defending Counsel’s Summons in Chambers (Order 18 Rule 19)
    3.2 The faulty subtitle on Writ 1 as per Opposition 1’s paragraph 3 and submitted outside 14 days of Order 12 Rule 7(1) of Rules of the High Court 1980 as per Opposition’s paragraph 4.
    3.3 The Summons In Chambers for Writ 2 was delivered to me without a covering letter on 12 November 2008 as per Opposition 2’s paragraph 3 and also outside of the Order 12 Rule 7(1) of Rules of the High Court 1980 as per Opposition 2’s paragraph 4
    Defendant’s 1st Affidavit
    3.4 The reference (RUJ: PN/SBH/HQ/SN/23/34/2008) at the end of page 8 appears to be incorrect or another file.
    First Mention of Writ 2 on 7th October 2008 in Chambers
    3.5 The defendant or his defending counsel did not appear at the appointed time of 9 a.m until it was time for the Mention before Judge Tuan Ikmal Hishan Bin Mohd. Tajuddin as my case was number 1 in the list and delayed by about an hour without representation and the Mention was then fixed for 12th November 2008.
    Second Mention of Writ 2 on 12th November 2008 in Chambers
    3.6 The defending counsel of the defendant and myself were waiting for a long time although the case was listed number 1 for 9 a.m but we were not called until I personally went to look for the Judge at about 10.30 a.m. I do not understand the reason for such scenario after I was served a Summon in Chamber for hearing on 12th November 2008 at about 8.50 am under Order 18 Rule 19 of the High Court 1980. Then it was fixed for a review on 12th December 2008 over the consolidation of the two cases on 5th December 2008 for General Election 2004
    Mention on 5th December 2008 for Writ 1
    3.7 There was some mixed up in the lists of cases to be heard on 5th December 2008 for High Court 2 for both the morning and the afternoon and the Senior Federal Counsel only turned up at 3.25 p.m after reminder by the Court clerk when the hearing was fixed for 3 p.m. I wonder why the defending counsel’s submission dated 5th December 2008 and unsigned was not delivered to me in the afternoon that day rather than given to me on 30th December, 2008 at the Judge’s Chambers..
    Defending Counsel’s Submission
    3.8 According to the Summons in Chamber for ‘strike out’ application for Writ 1 and Writ 2, under Order 18 Rule 19 of the High Court 1980 dated 5th November, 2008 for General Election 2004 and 12th November, 2008, it was specific under Rule 19 (1) (d) as an abuse of the Court. But the Defending Counsel’s submission in paragraph 1.1 stated “on the grounds that the pleadings are scandalous, frivolous and vexatious or an abuse of the process of the Court” when scandalous, frivolous and vexatious comes under Rule 19 (1) (b) was not in the ‘strike out’ application. This is abuse of the Court by Defending Counsel.
    3.8.1 Defending Counsel’s submission in paragraph 5 under subtitle submission - Frivolous and vexatious 5.1 (b) (i) The plaintiff’s complaints of irregularities, serious misconduct and discrepancies in the 12th General Election 2004 and 2008 were related to incidences throughout Malaysia; when I would like to say this statement is vague and misleading because of the words “12th General election 2004 and 2008”.
    3.8.2 Defending Counsel’s submission was not signed and sealed by the Defending Counsel in the copy given to me where the post code of the Putrajaya was 62502, while other documents stated it as 62512, 62500 in Summons in Chambers for Civil No. K21-10 Year 2008 on 5th November, 2008 and Summons in Chambers for Civil No. K21-14 Year 2008 on 12th November, 2008. This can delay the posting of mails.
    3.8.3 Defending Counsel’s submission had not quoted the complete sentences when referring to my Writ 1’s paragraphs 12, 13 and 14 and Writ 2’s paragraphs 12 and 12.1-12.7 as follows:-
    3.8.4 Paragraph 2.1 (ii) should include the following words after refunded “following the fraudulent General Elections 2004 to a public trust fund as most of the people involved are not that innocent”
    3.8.5 Paragraph 2.1 (iii) should include the following words after rolls “to be used for the general elections with a Royal Commission of Inquiry on the General Election 2004 and the electoral rolls thereof and the Governments be helm by an independent caretaker Government.”
    The omission of such words may dilute the intention of these declarations with the use of two words summary and summarily in paragraph 2.1 and paragraph 2.2 respectively. Similarly 2.2 had been shortened from what was in Writ 2.
    3.8.6 Paragraph 3.3 is incorrect to mention 11th General Election as I challenged the General Election 2004 including Sabah 10th State General Elections to distinguish that Sabah held a simultaneous General Election with the Parliamentary elections for the first time hence the number of 10th and 11th General Elections be included.
    The above critical but obvious observations give the indication that the defendants and defending counsel especially the Election Commission Chairman are only interested in ‘strike out’ the Writ 1 and Writ 2 after presenting Summons in Chambers of three pages outside Order 12 Rule 7(1) per paragraphs 3.2 and 3.3 above.
    4. Writ 1 for three defendants
    In Writ 1, there are three defendants and the Writ of Summons were individually served on them in the respective offices in Sabah and all are represented by the Defending Counsel. Only the first defendant in Writ 1 filed on 25th February, 2008 and served on him on 26th May, 2008 had responded with a belated affidavit dated 23rd December 2008. Up to now, it is not known why the two defendants did not see it fit to respond at all. Without responding and in silence it is taken to mean that they consent to the trial to proceed and so it is two in favour and one against- a natural verdict of sort not misconceived in law or logic. So the ‘Strike out’ applications must fail in public interest for good governance, justice and common good.
    5. The applications, interpretations and implications of the Laws
    This is to deal with some of the relevant laws about general elections and more specifically about the ‘arithmetic’ discrepancies (not logic as coined by the 1st Defendant) of the ballot papers in the Ballot papers issued as a substantive issue and a lesser extent on the non returned ballot papers including postal ones for the Parliament and the respective State seats under it.
    5.1 The 1st defendant had quoted in several paragraphs all the electoral laws and regulations and the various election petitions that had gone to the High Court, the results of Judgements or decisions to the petitioners appear to be not favourable to the petitioners. The reasons for the low number of election petitions are likely the tedious process in Courts and the costs of pursuing such cases. It is indeed a better sign that petitioners had succeeded in two cases in General Election 2008. The low number of election petitions is inadequate and unreliable to confirm the existence or otherwise any irregularities as the 1st defendant had claimed while the depth and the nature of contests in the High Court hardly deal with the arithmetic discrepancies as how many had actually brought it up for the proper scrutiny in Courts. We always read in the newspapers that most of the Election Petitions in Court were struck out in the first available opportunities likely on technical grounds. Is it really the duty of the election candidates or any aggrieved voters to bring any Election petition to courts when such arithmetic discrepancies had arisen? The focus of most candidates would be on the particular seat they are contesting on the night of polling and counting. It is rather the duty of the Election Commission to ensure a free and fair election given the available laws be applied without any bias. It is also the responsibility of the Election Commission to ensure that the Returns on polling day after counting be correct after due instant audit. The Election Commission is fully empowered to set up the regulations of counting to ensure that there are no such arithmetic discrepancies like in a football game without faulty refereeing in a competition. Football games are held in the open hence transparent and general election’s counting is lacking in that respect.
    5.2 Despite the available laws, the 1st defendant had called for changes in the Election Laws but the arithmetic discrepancies do not need any new laws. All is needed is a system of verifications rules for the polling and counting of votes. It is also the duty of the Election Commission to ensure no arithmetic discrepancies for good governance.
    5.3 Act 5
    The arithmetic discrepancies of the ballot papers issued can be identified to Part II of Act 5 in particular
    5.3.1 Offences by any person
    (1) Any person who
    3(d) without due authority supplies any ballot paper to any person;
    3 (e) sells or offers to sell any ballot paper to any person or purchases or offers to purchase any ballot paper from any person;
    (g) puts into any ballot box anything other than the ballot paper which he is authorised by law to put in
    (i) without due authority destroys, takes, opens, or otherwise interferes with any ballot box, ballot paper or packet of ballot papers in use or intended to be used for the purpose of an election;
    (j) without due authority prints any ballot paper or what purports to be or is capable of being used as a ballot paper at an election;
    5.3.2 And Offences by election officers in particular
    4 (a) makes, in any record, return or other document which he is required to keep or make under such written law, any entry when he knows or has reasonable cause to believe to be false, or does not believe to be true.
    5.3.3 The Court must scrutinise all records to ensure that the reasons for massive arithmetic discrepancies can be established so that such offences tantamount to electoral frauds do not go undetected by the Election Commission irrespective commission of such frauds by neglect, deliberate with insiders or otherwise in the process with the implication of Section 32(2) of Act 5 as per Support 2 or Plaintiff’s 3rd Affidavit’s. Paragraph 8
    5.4 118 and 118A
    Article 118 - No election to the House of Representatives or to the Legislative Assembly of a State shall be called into question except by an election petition presented to the High Court having jurisdiction where the election was held.
    Article 118A - A petition complaining of no return to the House of Representatives shall be deemed to be an election petition and the High Court may make such order thereon as it may think fit for compelling a return to be made, but the failure to make a return within any period specified by Article 54 or 55 shall not be a ground for declaring that a member has not been duly elected.
    5.4.1 Defendant’s 1st Affidavit’s Paragraph 11 and Defendant’s 2nd Affidavit’s Paragraph 9 make references of 118 but emphasize that it is for individual seat only while any Federal Constitution is open to wider application and interpretation when the circumstances demand it including extending it to the whole nation in the context of general elections. Constitutional scholar Shad Saleem Faruqi, said that the Federal Constitution can be interpreted in many ways as reported in an exclusive interview recently with Sabah’s Daily Express..
    5.4.2 It is not to be ignored about the provision of 118A when Writ 1 and Writ 2 are mainly on the complaint of arithmetic discrepancies resulting in defective return on the day after polling and counting but failure of the Election Commission to ensure all the returns were beyond doubt in their accuracy in a single set of Return according to Regulation 27 of the Election Regulations as per Support 2 or Plaintiff’s 3rd Affidavit paragraph 6.
    6 Election Commission Chairman and his media exposures
    The Election Commission Chairman had made many public statements and widely reported in the mass media including television interviews and amongst matters raised by him are as follows in a sample of such items :-
    6.1 In his retirement message, the 1st defendant has warned the public that he would take legal action against all those who accused him of electoral frauds after he left office and so has he instituted any such moves on the various issues also raised in Writ 1, Writ 2, Opposition 1, Opposition 2 in the following matters:-
    6.2. Defendant said “No other regime capable of running the country” in his keynote address to a seminar on Malaysian political development organised by the political science department of the International Islamic University Malaysia (IIUM) in Kuala Lumpur on 7th December 2007. “People say that those who hold that power - to run elections - can always determine who is going to be put into power.
    6.3. Defendant said “I will resign” if Court said there is rigging in any GE or by Election. But he said in November 2007. He had conducted six general elections and that thus far no one had come to him with proof that there had been rigging of any general election or by-election. He was the Election Commission’s Secretary in 1999 when Likas N13 was declared null and void. Instead he was promoted in 2000 in a natural process and that was before the Judgement of the High Court on N13 Likas 1999 was made.
    6.4. Election Commission wants right to sue (Borneo Post May 18, 2008)
    6.5 Rashid’s reply to the proposal to abolish the postal voting system is that if they do that then none of the cabinet ministers would be able to retain their seats. When the shocked assembly asked Rashid is not the purpose of the Election Commission to ensure that they run a fair and free election, he shocked the assembly even further by retorting that the purpose of the Election Commission is to ensure that the Malays do not lose political power. (Malaysia Today by RPK)
    6.6 I have lodged three Police Reports on General Election 2004 and General Election 2008 and published a book titled “Malaysian General Election March 2004 - A Case of Victory - landslide or rigslide” and yet the defendant had avoided comments then and now. What the defendant had done over the years in 7 General Elections especially General Election 2004 and General Election 2008 does give a very good account of defendant’s mens rea in paragraphs 6, 6.1 to 6.5 above especially it was to ensure the Malays do not lose political power as per paragraph 6.5 above. The defendant is not prepared to face this Court hearing by ‘strike out’ applications despite what defendant had been saying for sometimes especially in paragraph 6.3 above. The defendant has yet to issue any legal letters to demand apology from whoever who had attacked him despite his intention to do so as in paragraph 6.1 above further confirm his mens rea in his deeds as Election Commission Chairman. Defendant’s many denials in Defendant’s 1st Affidavit and Defendant’s 2nd Affidavit using excuses of the inadequacy of existing law as per paragraph 14.4 do not convince others that electoral frauds were non existent in General Election 2004 and General Election 2008, and instead the defendant was trying to justify himself using all the prevailing laws to ‘strike out’ my Writ 1 and Writ 2. There were so many glaring electoral offences and yet the defendant was quiet as defendant was to implement his bias motive to allow the incumbent to be retained as per paragraphs 6.2 and 6.5 above whenever possible.
    7. Which parts of Writ 1 and Writ 2 are academic?
    Definitions of academic are theoretical or hypothetical; not practical, realistic, or directly useful: an academic question; an academic discussion of a matter already decided. 2. hypothetical or theoretical and not expected to produce an immediate or practical result; "an academic discussion"; "an academic question" 3. conforming to set rules, standards, or traditions; conventional:- [based on the Random House Unabridged Dictionary] and 4. Too much concerned with theory and logic; not sufficiently practical. [The advanced learner’s dictionary of current English]
    1 When the ingredients of the Returns are suspected of electoral frauds, the complaints are valid and practical not academic.
    7.1 The Skeletal Submission stated that Plaintiff’s issues already academic but did not specify which parts of a wide range of issues are so and instead quoted two cases of Menteri Hal Ehwal Dalam Negeri, Malaysia & ors v Karpal Singh [1992] and Matthias Chang v The Grand Lodge of the Eastern Archipelago [2005] on detention and membership respectively whose specific contents are not relevant and not similar to the issues of Writ 1 and Writ 2 at hand.
    7.2 Before any issue raised in Writ 1 and Writ 2 are to be even considered as academic, it must go through a proper trial to determine the substance of the issues before the Court. General Election 2004 and General Election 2008 are done with but the consequences of these events are likely to be repeated as it was in General Election 2004 that the main issues raised in Writ 1 are found again in Writ 2. When frauds have been committed, the offence is to be established hence it cannot be treated as academic when the offenders are still there at large waiting for the next General Election to be in action again.
    7.3 To appreciate the substance of the arithmetic discrepancies, I would present a model here as how such discrepancies could have arisen and unless addressed with a proper system without the need of amending any existing laws, it is going to recur in future General Elections while this issue would not be detected in single seat by elections unless we checked the marked ballot papers for authenticity.
    7.3.1 When there is a Parliament seat with two, three, four, five, or six state seats under it, every candidate would attempt to win by whatever methods by votes rigging and so it is important to sieve out the seat or seats where the arithmetic discrepancies have arisen and take appropriate intensive and extensive action instantly at the counting centres.
    7.3.2 The nature of rigging can come from diverse methods as the winners are determined by the marked ballot papers in the ballot boxes, and when such ballot papers are subject to question of authenticity hence not free from frauds, the returns are faulty. Such natures of rigging can be due to known and unknown tactics such as metal boxes up to General Election 2004 - not transparent and can be subject to heating; exchange of marked ballot papers; switching of ballot boxes; and abused postal ballot papers.
    7.3.3 The defendant in the Defendant 1st Affidavit and Defendant 2nd Affidavit claimed to justify that some election petitions had been tried in the Courts but the number of cases in paragraph 19.1 of Defendant 1st Affidavit of 43 petitions for General Election 2004 and in paragraph 13.5 of Defendant 2nd Affidavit of 29 petitions for General Election 2008 are too few to give any measure of assurance in the likely feedback of arithmetic discrepancies. The biggest arithmetic discrepancy of P69 Parit and N38 and N39 for a discrepancies of 1,947 General Election 2008 was not brought to the High Court. Similarly three others P112, P150, and P155 of above 1,000 were not brought to the Court. Were P28 with 4,843 and others P39 (1,541), P56 (1,259), P85 (1,502), P152 (1,137), P6 (1,000) for General Election 2004 brought to the Courts? If not, why did Election Commission not initiate its own investigation for fear of exposing their own frauds in the process?
    7.3.4 All contested seats should be checked for arithmetic discrepancies of the issued ballot papers after polling or tallying prior to the opening of the ballot boxes for counting at the counting centers. The observation of 30% of the seats as in General Election 2004 and General Election 2008 with 50 and above arithmetic discrepancies had a direct impact on the Returns under Regulation 27 of Election Regulations in 118A as the results on the night of polling and counting should be challenged there and then. So there is nothing academic when public interest for good governance demand for a proper hearing to avoid future Governments not to be formed promptly after costly election process on the next morning. It may even precipitate a grievous disrepute to the whole electoral process as safe custody of all electoral records may not be assured later unless the arithmetic discrepancies are resolved promptly including delay of the Returns.
    7.3.4 According to the Report of General Election Malaysia 2004 in Chapter 11.2 Internal Election Audit Committee (page 137), ECM has established an internal ELECTION AUDIT COMMITTEE to identify the weaknesses and problems of this election and to recommend remedial steps as a guide for future elections. Chapter 11.3 Election Post-Mortem when 11.3.1 Besides this, the Secretariat also held various post mortem sessions on the election at different levels throughout the country. Why was arithmetic discrepancies not mentioned here?
    7.3.5 While the Plaintiff had done so much to draw the attention of the defendants ever since March 2004, the onus of proof is now over to the defendants not hindered by the limitation of time and the Court is an appropriate authority to deal with Writ 1 and Writ 2 for transparency, accountability, good governance, justice in the context of public interest. Every day of delay in resolving this case, means that the legitimacy of the Governments - Federal and State - is challenged to handle the affairs of the nation including dealing with financial matter to the tune of billions of Ringgit daily of annual fiscal budget, Malaysia plan, international trade of a trillion Ringgit plus valuable assets of all the States so as to stop profligacy to be perpetrated.
    7.3.6 Another issue of arithmetic discrepancies over the non returned ballot paper is significant to indicate misconduct and likely repeated in future elections as it was in General Election 2004 and General Election 2008 - the results of these last two General Elections were distorted by these arithmetic discrepancies. How do we explain that those postal ballot papers issued and delivered largely by Election Commission’s personnel to the voters concerned have such substantial arithmetic discrepancies due to unseen hands. Election agents are not allowed into those camps hence verification was not possible.
    8. Faulty Electoral Roll is not academic.
    It is established beyond doubt the existence of faulty electoral roll nationwide and nothing much had been done about that even after the N13 Likas 1999’s landmark Judgement in June 2001.and the defendant had made press statements such as follows:-
    8.1 EC mulls re-registering 11 mil voters to stop fraud (May 26, 08). Rashid also said that the commission was studying the possibility of replacing the Elections (Registration of Electors) Regulations 1971.
    8.2 "The (present) law is quite weak and we need a new one. We hope that the new law will put an end to controversies surrounding the registration of voters." EC Chairman (NST) KUCHING: 01 May 2008.
    So it is expected that the Court can declare the appropriate order to clean up the Roll preferably with the establishment of Royal Commission of Inquiry when the 2nd Defendant of Writ 1 had not responded. We need proper supervision from the Court or any appropriate authority to ensure the Roll is proper.
    9. The High Court / Judiciary is the right venue to resolve the issues in public interest
    When the other branches such as the Executive and Legislative have vested interest in the issues of Writ 1 and Writ 2 , the Judiciary in Malaysia would be the last resort for the advancement of this cause in public interest for good governance and then the Monarchy could be next and final branch for further action. There is only a single judiciary in the country and the High Court of Sabah and Sarawak were formed under the Federal Constitution for easy administration as per Minister in the Prime Minister’s Department who told the Parliament recently.
    9.1 I would not need to take this case up if the Federal Attorney General had taken up appropriate action on my three Police Reports on General Election 2004 and General Election 2008. It is now permitted that the Federal Attorney General can be challenged and questioned for not taking action in public interest following Altantuya case on the accused Abdul Razak Baginda as acquitted. Also the defendant had not taken any action against the Plaintiff for publishing the book on General Election 2004 in October 2007.
    10. Public Interest of paramount importance (Opposition 1’s paragraph 9 and Opposition 2’s paragraph 10)
    10.1 According to constitutional scholar Shad Saleem Faruqi, the Federal Constitution has been amended 42 times over the 48 years since independence as of 2005. However, as several amendments were made each time, he estimates the true number of individual amendments is around 650. He has stated that "there is no doubt" that "the spirit of the original document has been diluted". This sentiment has been echoed by other legal scholars, who argue that important parts of the original Constitution, such as jus soli (right of birth) citizenship, a limitation on the variation of the number of electors in constituencies, and Parliamentary control of emergency powers have been so modified or altered by amendments that "the present Federal Constitution bears only a superficial resemblance to its original model. It has been estimated that between 1957 and 2003, "almost thirty articles have been added and repealed" as a consequence of the frequent amendments.
    10.2 The several items of the Federal Constitution as mentioned by me in General Election 2004’s Opposition 1’s paragraphs 6.4 and 6.5 and in General Election 2008’s Opposition 2’s paragraph 6.4, 6.4.1, 6.4.2, and 6.4.3, are obvious violations.
    10.3 Defending Counsel’s submission stated the case of Federal Court of Muhammad Sanusi bin Md Nor over the status of 118 pertaining to elections. Since Federal Constitution had been subject to amendments and naked violations and many Court’s decisions have been overturned, nothing is so fixed when public interest is considered as paramount importance for good governance. Laws and Constitutions - Federal and State are supposed to bring Justice when Justice is about “right order” nothing more or nothing less as according John N. Oswalt asserts the Hebrew word translated "justice" is in many ways the antonym of "chaos" and it is much more than legality, as ‘justice’ has come to connote in English. Rather, it has the idea of ‘right order’ in his book "The NIV application Commentary" (Grand Rapids: Zondervan 2003).
    10.4 The role of Judge titled as Justice is to bring justice in the full context of public interest Public interest is the hallmark of democracy and the rights of all citizens. I believe the many cases of public interests that come to the Courts had gone a course of agitation before litigation was pursued. Similarly my two cases had gone through three police reports and a book plus many letters to appropriate authorities and offices including the DYMM DSP YDP Agong since March 2008. In the Police Reports, I had called for Royal Commission of Inquiry which until now is not forthcoming apart from expecting the Police, the Federal Attorney General’s office and the Anti Corruption Agency to initiate appropriate action including taking me for lodgement of possible false Police Report and again nothing in that direction had surfaced to date. A case of alleged abuse of the process of court does not arise here. So there is compelling reason in public interest to bring the cases to the Courts as the last resort as the other two branches namely the Legislative and Executive would unlikely act on themselves while the YDP Agong had largely remained aloft.
    The Malaysian Bar’s Paper on Public Interest Litigation
    10.5 The Malaysian Bar’s paper of 163 pages titled “the Role of Public Interest Litigation in promoting good governance in Malaysia and Singapore,” is attached in 50 pages here for ease of reference. Public interest litigation has been proven to have promoted good governance in public administration. For example, the earlier practice of appointing the Chief Minister of a State also as a President of a Municipal Council has now ceased after the case of Lim Cho Hock v Government of the State of Perak, Menteri Besar, State of Perak and President, Municipality of Ipoh,[24] even though the public interest litigant in that case failed to obtain the declarations sought.[A]
    10.5.1 Public interest litigation involves the institution of actions by private citizens in courts to seek redress against public wrongs committed by government or public bodies.[5] It is an adjudication of disputes between private individuals and the state initiated to promote the public good in terms of serving a collective societal interest.[6] [B]
    10.5.2 This concept of good governance can be promoted through actions taken by public interest litigants in the courts to right any administrative wrongdoing. In this age when government departments and public authorities possess great powers and influence over the affairs and rights of the community, public interest litigation as a socially-motivated check on administrative excesses can no longer be ignored, especially when public criticism tends to fall on deaf ears. [C]
    In The Discipline of Law,[26] Lord Denning narrated how several senior police officers were prosecuted for corruption after a taxpayer and his wife took the Metropolitan Police Commissioner to court [27] when he discovered that the laws against pornography were not enforced.[D]
    10.5.3 Since both the Malaysian and Singapore Constitutions are the supreme law of the land in that any legislative acts inconsistent with the Constitution would be invalidated,[81] a fortiori, the judicial branch should play a more active role in order to uphold and give effect to the written constitution.[82] As my British professor of public law, Professor Graham Zellick [83] would tell me during my student days, the reason why Britain had prepared written constitutions for all her former colonies despite not having one herself stemmed from the belief that the legislative arm in these former colonies could not later be trusted to act responsibly and fairly.[E]
    10.5.4 However, a Malaysian judge was of the view that explains why the English common law “has to grope about in the dark and unlit passages of constitutional and administrative law, and undergo a rather slow and gradual development ”[84] as it lacks the distinct advantage of a written constitution. Gopal Sri Ram JCA said, “it is wholly unnecessary for our courts to look to the courts of England for any inspiration for the development of our jurisprudence on the subject under consideration. That is not to say that we may not derive useful assistance from their decisions. But we have a dynamic written constitution, and our primary duty is to resolve issues of public law by having resort to its provisions. ”[85]
    10.5.5 .E. The role of the constitutional court in an administrative state
    (i) Judicial Intervention
    The extent of public interest litigation, therefore, depends on the limits of judicial enforcement of executive actions. It can exercise either judicial activism or restraint in this regard, but an overzealous judiciary will certainly put the executive and the judiciary on a collision course. [86] But this in no way means that the courts have no role to play in checking administrative action. Lord Diplock in 1979 noted:
    … judicial modesty must go hand in hand with judicial courage. If the Federal or a State legislature attempts to legislate in breach of the Constitution which is the supreme law of Malaysia, if any executive or administrative authority, however exalted or however lowly, has so acted that it has failed to observe or to apply the law, it is the responsibility of the Judiciary of Malaysia, so to declare and to refuse to give legal effect to such ultra vires legislative or administrative act: for this is the only way in which the rule of law will continue to be preserved. [87]
    As Professor Wade also said in his Appendix to Dicey’s Law of the Constitution: “The last word on the question of legality rests with the courts and not with the administration.” [88]
    10.5.6 In Malaysia, the position is best summed up in the words of HRH Raja Azlan Shah, acting CJ (Malaya) (as he then was), in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd. [89] His Royal Highness said trenchantly:
    Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen: so that the courts can see that these great powers and influence are exercised in accordance with law. I would once again emphasize what has often been said before, that ‘public bodies must be compelled to observe the law and it is essential that bureaucracy should be kept in its place’, (per Danckwerts LJ in Bradbury v London Borough of Enfield (1967) 3 All ER 434 at p 442).” [90]
    These views were echoed by the Singapore Court of Appeal in Chng Suan Tze v Minister of Home Affairs, Singapore & Ors.[91] The position of Singapore courts is reinforced by art 93 of the Constitution which provides that the judicial power is vested exclusively in the Supreme Court and the Subordinate Courts in that the courts are empowered to review of the exercise of arbitrary powers of the executive.[92] [H]
    10.5.7 In George John v Goh Eng Wah Bros Filem Sdn Bhd & 2 Ors,[7] Lim Beng Choon J traced the origin of public interest litigation and its justification as follows:
    “The concept of “public interest litigation” was said to have first been mooted by the Indian Supreme Court in Fertilizer Corporation Kamgar Union v Union of India AIR 1981 SC 344. The judgment of Krishna Iyer J (ibid at 350) had no doubt influenced greatly the Indian judicial thinking on the concept of public interest litigation. In justifying this concept, Krishna Iyer J said at p 354: “Law, as I conceive it, is social auditor and this audit function can be put into action when someone with real public interest ignites the jurisdiction.” [I]
    10.5.8 The view of the public interest litigant is that there are rights or collective interests which must be safeguarded to avoid government lawlessness which harms the social interest. These public rights are in nature diffuse, societal and fragmented. [10] [J]
    10.5.9 In any event, judicial intervention is a necessity in an administrative state these days when administrative bodies are adopting the practice of anything is permissible unless and until it is stopped by the courts. It is no longer the case that if the legality of a course of action was in doubt, it would not be adopted. [106] The involvement of the courts and judges in public interest litigation has also become inevitable if justice is to be done in an increasingly regulated society. [107] It is within this context that the judicial arm in the separation of powers is best positioned to curb administrative abuses and excesses or to use the words of HRH Sutan Azlan Shah, ‘departmental aggression’. [108] [K]
    10.5.10 (ii) The role of courts in promoting Good Governance
    The judiciary should help enforce the concept of good governance in public administration. It is a principle that is based on equity and fairness. Corrupt and intolerant regimes will find good governance as a threat to their surviving in power.
    Many a time, the citizens’ right to freedom of speech is curtailed so that any administrative skeletons can be concealed at the expense of an ignorant and misinformed public. A judiciary operating in such an environment is beholden to set the rules of good governance for the general good of the citizenry when the legislature controlled by a corrupt and intolerant regime fails in its constitutional duty. Under these circumstances, judicial creativity and activism are necessary to shield the rights of the citizens from encroachment. It is submitted that it is also justifiable under these circumstances for judges to ‘make’ laws while interpreting them! Of course, if the judicial arm of the government is equally corrupt, then it spells disaster for the country for the wealth of the country will be plundered and the citizens’ rights trodden with impunity.
    The judiciary should therefore lend a hand to public interest litigants who have taken upon themselves to ensure that administrative agencies do not act beyond their powers. In this sense, the judiciary too has to observe principles of good governance in dispensing justice. When the other arms of the government may be a let-down to the people, the judiciary must rise to the occasion to act against any transgressions of the nation’s laws.
    10.5.11 .The question of common law and equity as hindrance in this is also resolved in public interest. In this regard, Dawn Oliver [56] argued that there is in fact no such divide and that any distinctions between the two are purely artificial. Oliver is of the view that there exist common underlying values which indicate that common law is capable of developing supervisory jurisdiction akin to that of judicial review over private bodies by imposing public law principles such as fairness and rationality in private law on those exercising private functions. In other words, public law and private law have similar objectives, namely to protect the interests of individuals in their autonomy, dignity, respect, status and security; to control exercises of power and to promote democracy and citizenship both in the public and in the private sphere. In her view, an integrated approach to substance, remedies and procedures should be taken in place of the public-private divide so as to enable the development of common law and equity in promoting the protection of individuals and public interests against abuses of all kinds of power. [M]
    10.6 Another article in defence of Public interest is by Justice (retired) V.R. Krishna Iyer a former Judge of the Indian Supreme Court in which he stated that “a person acting bona fide alone can approach the court in public interest while the Court tends to give a high quality of justice only when, for one reason or another, parties can surmount the substantial barriers which it erects to most people and to many types of claims’.” He also said “Law, as I conceive it, is social auditor and this audit function can be put into action when someone with real public interest ignites the jurisdiction.”
    11. Submission
    11.1 Pleadings are frivolous, vexations and scandalous as a new ground
    Defending Counsel submission of Order 18 Rule 19 under subsection (1)(d) has now included a new ground- ‘pleadings are frivolous, vexations and scandalous” which comes under subsection (1)(b). Defending Counsel is unsure of its course of action in wanting to strike out the Writ 1 and Writs of substance using whatever obstructions available. All those diverse electoral frauds had been there for a long time and the arithmetic discrepancies scenario is just exploding to draw our attention in public interest hence nothing frivolous, vexations and scandalous on my part.
    11.2 Act 118, 118A of paragraphs 5,4, 5.4.1 and 5.4.2 above can be extended to the whole nation where the election was held. Since this is likely a first case, the impact is also nationwide for justice to be demanded for the whole nation. Under Section 34 of Act 5, I am qualified the national General Elections unlike I may not be in the position to challenge any by-elections outside my registered constitution. Also the conflict of Section 33(1) of A5 with 118 over the issue of Judge cannot be ignored as per Affidavit in Reply in Opposition or Plaintiff’s 5th Affidavit’s paragraph 8.3. The selection of Election Judge is considered an hindrance to justice in a system of bad governance.
    11.3 With regard to Act 5, I have clarified the grounds of the arithmetic
    discrepancies in paragraphs 5.3, 5.3.1 and 5.3.2 above and the Courts should be in the position to examine the records of the Election Commission Malaysia.
    11.4 It is now for the Court to review past decisions so far applied under 118 and Act 5 or any other laws. My Writ 1 and Writ 2 and no parts in these Writs are academic. The past results would be academic only when the Election Commission, the Police, the Federal Attorney General or any authorities and the Judiciary extending it to the Monarchy as well do not intervene to correct the electoral frauds, irregularities as exposed as well as in earlier General Elections. Writ 2 was filed in time and the initial unexplained delay by the defendant and defending counsel may have the intention to make it academic as well when the perception of time is a factor of academic.
    11.5 Unless the same issues of arithmetic discrepancies are addressed now and do not expect the Election Commission to implement the system of verification as the circumstances demand it, the referees or returning officers or Election Commission in the next General Election would likely face the challenges of such emergence of arithmetic discrepancies of such dimension in 30% of the seats with discrepancies of 50 and more on the night of counting with unknown consequences. It is now pertinent that the Court decides in public interest for the public good with a system to deal with such challenges in future, the avenue of going to the High Court is unsustainable with all the records for so many disputed seats to be kept intact.
    11.6 Similarly the National Registration Department as a factor to the faulty electoral roll need to rectify its records under Court supervision or under order of a Royal Commission of Inquiry, otherwise it is another case of N13 Likas 1999 subject to contempt of Court.
    11.7 It is very clear that it is a case of public interest with wide implications on the parties involved with electoral frauds and the suspected culprits are let loose. The grounds of the Defending Counsel bordering on perceived legalities as questioned are unsustainable and unjustified for protection of some against public interest given the circumstances of irregularities of the conducts of the General Elections. Although there are some slight differences for General Election 2004 and General Election 2008 in the time factor, the substance of both Writs deserved to be examined together. Now that, I have taken the last stand to act on conviction with public interest for good governance and justice to ensure that fair and free elections always in the lips of many be a reality in any future elections.
    11.8 Both Writs not intended to be election petitions have come so far in the Court in public interest and also with ingredients in compliance with 118 to be read with 118A as interpreted in paragraphs 5.4, 5.4.1, 5.4.2 above and I crave leave to refer to Opposition 2’s paragraph 5, Act 5 as illustrated in 5.3, 5.3.1, 5.3.2, 5.3.3, and simultaneously in response to the challenge of the administration and I crave leave to refer this to Writ 1’s paragraph 5. Not academic, not frivolous, not vexatious, not hindered by the legalities wall, not barred by time limitation, the Court has the jurisdiction to hear the cases now consolidated in public interest to establish a valuable and sustainable right order or justice for the community in good governance.
    12. Conclusion
    In the premises, I respectfully pray that the strike out applications be dismissed with costs.
    Dated: 12 January 2009
    .................................
    Joshua Kong Yun Chee
    Plaintiff
    This submission filed on ......13...January 2009 is taken out by the Plaintiff acting in person whose address for service is at 26 Taman Iramanis, 0Lorong 5, off Jalan Lintas, Kolombong 88450 Kota Kinabalu or preferable at P. O. Box 11923, 88821 Kota Kinabalu, Sabah
    This was attached with 38 pages of supporting documents


    Final Submission for the consolidated case against ‘strike out’ applications on 16th January 2009 – delivered verbally.

    1. Constitutional and statute issues:-
    118 has been relied like a protective thing when 118A is largely ignored in the same Constitution. When 118 is over ridden by another statute Section 33 (1) of Part VII of Act 5 (P 5 pt 1), there is a void.

    Lots of major violations such as Opposition 1 paragraphs 6.3, 6.4, 6.5 and Opposition 2 paragraphs 6.4, 6.4.1, 6.4.2, 6.4.3, about the Federal Cabinet, State Cabinets, and birth qualifications of Governors, Prime Ministers, Chief Ministers plus the Petroleum Development Act 1974 [Act 144]. In this socalled narrow proposition that 118 be not applied, we know all those piling up evidence against the defendants especially the 1st defendant, and yet we are blocked by sort of legalities. Can a thief/guilty party have such a privilege? So public interest would path the way in the Court for a proper hearing as the onus of proving their performance of General Election is on the defendants.


    “Our courts reduce constitutional law issue to administrative law issues. They just ask “ Did the Minister Act in accordance with the Statute? They never ask “Is the Statute in accordance with the Constitution.” According to Dr. Shad Saleem Faruqi in Daily Express exclusive interview on 28th September, 2008, also attached

    Act 5 [my skeletal submission -SS- page 7 para 5.3] and related issues like not common law and equity all clarified in my early submission and other documents especially in public interest portion.

    2. Time issue - academic, filing by defendant, Writ of Summon.
    The substance of this case is never to be academic, while the defendants had violated the High Court rules as spelt out in my documents . SIC under Order 18 Rule 19 [5 Nov 2008] was filed long after 14 days from 5th June, 2008 for GE 2004 and similar SIC of 12 Nov 2008 for GE2008. [GE 2004-Opposition 1 para 3 &4] [GE 2008 -Opposition 2 - para 3 & 4] Numerous anomalies by first defendant and defending counsel identified in my skeletal submission in reply para 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.8.1, 3.8.2, 3.8.3, 3.8.4, 3.8.5 and 3.8.6.
    Why no responses from second and third defendants?
    My Writs of Summon -not intended as Election petition - especially for GE 2004 filed 4 years later and GE 2008 filed within 21 days of socalled Gazette of results on 8 April, 2008 was with the time but both cases filed within 6 years.

    3. Performance of 1st Defendant
    The modus operandi of the first Defendant and ex EC Chairman as in his Mens Rea [SS page 10 para 6 & 6.1-6.6] is known to have precipitated the electoral frauds of the past 7 General Elections conducted by Tan Sri Abdul Rashid. He did nothing even after I complaint to them in March 2004 and others in power over the arithmetic discrepancies especially as big as 4,843 in P28 Pasir Puteh, Kelantan with majority for PAS in Parliament of 3,810 and two state seats to PAS and two state seats to BN with slim majorities 187, 646 (p), 699, 42(p). Writ 1 “JK-105”. The big majority to PAS in Parliament does not really make sense in the majorities of the State seats. Submission paragraph 6 and in Opposition 1 and Opposition 2 (on Internet wensite and 400 acres in Pahang). The case of Pahang’s Pekan P85 seat in GE 2004 and GE2008 must be examined.

    4. Agitation prior to litigation in Public Interest
    After three police reports and a book, why have the Police not acted against me,
    Why no action had been taken against me in my Police reports and my book can be explained in some ways like that would open up the door for me to defend myself with all the substance in these two Writs and the sort of legalities on elections and election petitions would be applied. So My Writs definitely not academic - a lame excuse of the guilty ones. The role of the press and mass media is also questionable here as the control and bias are not helping this case in public interest.
    case, Why the Federal AG not acted against EC Chairman, why ACA not interested in the such incidences should stir up public interest. So I would like to query the Federal AG of inaction and should be coaxed to act against the EC Chairman (first defendant) - not academic now that EC Chairman (first defendant) has retired and also ex EC Chairman also has not resigned after N13 Likas 1999 instead got promoted to Chairman from Secretary, now also not academic for resignation as he has retired.
    Be reminded of the case by Lord Denning ... (Submission page 16 para 10.5.2). I would like to see further action by the Federal Attorney General possibly with the strong recommendation from the Courts.

    5. Public interest [box of sort of legalities liberated by Public Interest]
    The justification of public interest is all there in Malaysian Bar’s article backed up by some 20,000 members in the Malaysian Bar as attached to my Skeletal Submission in reply. I do not have any personal benefit like those in individual election petitions and I come with clean hands in public interest. Justice (retired) V.R. Krishna Iyer a former Judge of the Supreme Court wrote “A writ petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective.” On the other hand, 1st Defendant and others cannot declare the same.

    6. So over to the Court and over to you Your Honour in the Judgement in this ‘strike out’ application considering that EC had consumed so much public resources over 51 years with very much questioned performance including electoral frauds, irregularities, inaction over electoral offence blaming Act 5 and other laws when arithmetic discrepancies are simple thing, and more costs to society are avoidable as inevitable when the deserving cases of General Election 2004 and 2008 must be heard properly in the High Court to avoid repetition of arithmetic discrepancies.

    7. Your Honour, when the ‘strike out applications’ are dismissed please consider the attitude of the defendants especially the first defendant for avoiding the hearing of the two cases in full, when he expressed interest in the Courts earlier hence the costs to me should be reflected in that context as the EC had incurred more than RM300 million of public fund in the conduct of those two General Elections. Corrective measures by my sacrificial efforts of 5 years should be accorded a higher value in appreciation. It is incredible that I have to fight this case with my personal resource while the defendants are using public fund. So justice or right order must be dealt with by the Judiciary.
    Thank you, Your Honour for hearing my case.


    Joshua Kong, Plaintiff

    cc:
    Defendant’s Solicitor,
    Senior Federal Counsel,
    Jabatan Peguam Negara Malaysia,
    Bahagian Guaman, Aras 3, Blok C3,
    Pusat Pentadbiran Kerajaan Persekutuan,
    62500 Putrajaya. (Ruj: Pn/Sbh/Hq/ /23/33/2008)

    Final Submission for the consolidated case against ‘strike out’ applications.

    ReplyDelete
  12. APPEAL to the Kota Kinabalu High Court for review or Appeal Court is intended in the PUBLIC INTEREST.

    ANYONE willing to help me help not for myself but in the course/cause of JUSTICE for all.

    JUSTICE IS RIGHT ORDER of things.

    I believe appeal must be done within 14 days.

    ReplyDelete
  13. Joshua Kong's contacts are:-

    jkong823@streamyx.com
    justknock7@pd.jaring.my

    DONATION FOR LEGAL COSTS & FEES please.

    Account Name: Kong Yun Chee @Joshua
    Current Account No.: 100930010001223
    Bank : Alliance Bank - Luyang Damai Branch
    Code: 12-10093
    Swift Code: MFBBMYKL
    .
    Letters & Cheque to
    P. O. Box 11923, 88821 KOTA KINABALU,
    SABAH, MALAYSIA.
    .
    Telephone: 6088 474513 Fax: 6088 432576
    Email: justknock7@pd.jaring.my
    jkong823@streamyx.com

    ReplyDelete
  14. Go there for the tables or schedule of Arithmetic Discrepancies

    http://newborneotoday.webs.com/apps/blog/categories/show/42695-general-election-2004-2008
    for GE 2008 and one item on GE 2004

    ReplyDelete
  15. A complainant penalised in Court cases in a miscarriage of Justice in public interest

    There was a Judgement by the High Court of Sabah and Sarawak in Kota Kinabalu on the two cases on General Election 2004 and General Election 2008 as consolidated on 30th December 2008. The Court Order was made for the applications to strike out my Writs of Summons albeit both Summons in Chambers (SIC) for the Order 18 Rule 19(1) (d) of the Rules of the High Court 1980 were filed in violation of the Order 12 Rule 7(1) of the Rules of the High Court 1980 as the SIC for General Election 2004 and General Election 2008 were filed on 5th November, 2008 and 12th November 2008 respectively when the dateline for both SIC was 20th June 2008. There were other violation by the defendants and their solicitors in Senior Federal Counsel.

    Summons in Chambers Order 18
    The grounds for the Strike out applications in SIC were vague initially each presented in three pages only as I will refer to this later. Then I fiercely filed my Affidavit in Opposition of many pages with relevant exhibits such as GE 2004 (15 pages and 5 exhibits) dated 14th November 2008 GE 2008 (14 pages and 9 exhibits) dated 25th November, 2008 both filed within 14 days of the SIC for Order 18.

    Filing of Court Cases in the High Court
    Briefly about the two Court Cases, the Writ of Summons for GE 2004 (Writ 1) was filed on 25th February, 2008 and GE 2008 (Writ 2) filed 25th April, 2008 and both Writs were approved on 23rd May 2008 for service to the defendants on 26th May, 2008. The defendants of Writ 1 were Election Commission Chairman (1st), The National Registration Department (2nd) and the Government of Malaysia (3rd). The defendant of Writ 2 was the Election Commission Chairman.


    The dates of Mention were set by the Court as GE 2008 (7th October 2008), GE 2004 (5th November, 2008). When I filed Writ 2 on 25th April, 2008, I wrote to the Court to remind it of my Writ 1 filed on 25th February, 2008. Then I got both the Writs back for service on 23rd May, 2008. I had earlier been informed by the defending counsel in a memorandum of appearance dated 5th June 2008. Then I received a notice of Mention for Writ 2 on 19th June 2008 for a Mention date on 7th October, 2008 - a rather long wait if it was to be treated as an Election Petition. Then I filed the Affidavit of Service of both Writs on 4th July, 2008. Meanwhile I await the date of Mention for Writ 1 filed on 25th February, 2008.

    When I attended the Mention for GE 2008 (Writ 2) on 7th October, 2008, the defendant and his defence counsel was absent without any reasons and it was delayed for almost an hour, and failure to appear forced the presiding judge Deputy Registrar En. Ikmal Hishan bin Mohd Tajuddin then to fixed a new Mention date on 12th November, 2008 while I handed over a two pages of submission for the case to proceed. The next day, I wrote a letter to the Court requesting for a mention date for the GE 2004 (Writ 1). Then a Mention date was fixed for 5th November 2008 on 16th October, 2008 for GE 2004 but the defendant was Demirama Sdn. Bhd., instead of the three defendants. That notice was then amended accordingly on my observation.

    Writ 1 (GE 2004) Mention date on 5th November, 2008.
    I was served just before the Mention Hearing a SIC Order 18 for hearing on 5th November 2008 based on document dated 30th October, 2008. The Hearing was before High Court Judge Justice Datuk Clement Allan Skinner and the SIC was allowed despite out of date under Order 12 Rule 7(1). I was given the chance to file an Affidavit in Opposition and the next hearing fixed for 5th December, 2008.



    Mention /Hearing on Order 18 on 5th December 2008

    On 4th December 2008's afternoon I went to check the list of cases set for 5th December 2008 and saw my name set for the afternoon that day. Then I turned up for the hearing on 5th December 2008's afternoon and found my case appearing both in the morning and afternoon sessions. It was earlier fixed for the afternoon at 3 p.m., and the defending counsel did not turn up and was called to attend by the Court Clerk on the instruction of the Judge. Then SFC turned up at 3.25 p.m. After the brief moment over the consolidation, it was fixed for 16th December 2008. Again it was postponed on 16th December, 2008 on the request of the SFC to 30th December, 2008.

    Mention / Hearing on 30th December 2008
    At that hearing the Court was given the skeletal submission by the Defending Counsel dated 5th December, 2008 by SFC Mr. Steve Ritikos and a unsigned copy was extended to me together a list of legal cases and authorities. I would like to go back to the rumour that SFC was there in the morning of 5th December, 2008 with the intention to strike out the cases when I was not present as that skeletal document was dated 5th December, 2008. Why was it not given to me at the afternoon of 5th December, 2008?. So the next hearing was fixed for 16th January, 2009 likely for the declaration.

    Hearing in Chambers on 16th January, 2009

    I was very early for the hearing fixed for morning and I saw my name in one of the pages without any Judge's name at the High Court 2's verandah board of notices of case. Then I was waiting for my case after 9 a.m., and then I realised something was amiss and I went back to the notice board. I saw another piece of paper with my name on it but at a different venue to be heard by Judge David Wong at Block B, second floor. Imagine, I had a few heavy hand luggages of files and books to carry all the way down some stair case to that Chambers in Block B from Block A . My heart could sustain the heavy duty as it could be courting health hazard.

    At about 10.45 a.m, it was my turn to appear in the Judge's Chambers and when the proceeding started, the Judge was asking where was my skeletal submission in reply albeit it was 60 pages of submission together with another 50 pages of the Malaysian Bar's Article on Public Interest. It was on his table and I had handed into the High Court on 13th January, 2008. The impression was that the Judge did not read my detailed submission albeit termed skeletal as there was more to be added to that. That submission only contained a few pages of the Public Interest issue while it can be extended to the 50 pages on Public Interest.

    CRUX OF THE TRIABLE ISSUES to be reviewed

    1. Were my writs 1 and 2 to be or not to be FC 118 and 118A?
    118 is applied for all individual election cases according to tradition. 118A is hardly applied here. My Writs complied with Act 5 if we want to consider the Election Offences .

    1.1. My Writs were more than just on the General Election?
    My Writs were not constructed as Election Petition although it is about the General Election but applied to the whole nation which is provided in the Federal Constitution. Also my Writs were filed in public interest and it is in public interest that the Writs were approved by the High Court and also taking up the challenge of the 1st Defendant and 3rd Defendant in GE 2004. When 1st defendant claimed he and EC did nothing wrong, then prove the arithmetic discrepancies which are frauds inside the EC. Frauds and Complaints under 118A is not restricted by time. The challenges were made in mass media in late November 2007.



    2. Who actually caused the delay?
    If you study the process in the Court, it is obvious the delay is due to SFC in GE 2008 although filed within 21 days..
    For GE 2008, it was filed with 17 days of the Gazette on 25th April, 2008 and the first aborted mention was 7th October, 2008 when most Election Cases were already decided or at advanced stage of hearing. Then the next mention was on 5th November 2008 when SFC wanted to strike out the Writ.

    3. A public challenge thrown by the ex Chairman of Election Commission - the first defendant of the GE 2004 and defendant of GE 2008 to the Courts. So it was a dispute to be settled by the Court and I took that challenge up.

    4. The substance of my Writs can never be academic as it is the basis of the challenge.
    The SFC was unsure of what are his grounds under Order 18 Rule 19 (1)(d) as later reflected in his skeletal submission on 5th December 2008.
    The Judge did not really read my skeletal submission in reply as it was submitted on 13th January and the Judgement on 16 January, after a brief hearing.
    The Judge did not consider the aspect of Public Interest when it was public interest that Writs were approved and proceeded from 25th February and 25th April, 2008 for GE 2004 and GE 2008 respectively.

    I had written a letter on 2nd January 2009 for a copy of the notes of proceeding up to that date. I have yet to obtain these except a brief note on the Judge's decision on 16th January, 2009 on 20th January, 2009 after writing another letter on 19th January, 2009..

    I also attached a copy of earlier observation on the conduct of the Court process dated .


    Joshua Kong 21 January 2009

    ReplyDelete
  16. see the Police Report

    http://malaysian-elections-2004.blogspot.com/

    The Report Proper

    On the conduct of the 11th National General Elections and 10th Sabah State General Elections- 21 March 2004 by the Suruhanjaya Pilihan Raya (SPR)/Election Commission (/EC)

    I, Joshua Kong Yun Chee want to lodge a Report as follows:-
    Democratic election processes must be seen to be conducted fairly and orderly with minimum disruptions and discrepancies, but many observations appear otherwise namely:-
    Cara-cara pilihan raya demokratic mestilah di nampak di buat dengan baik dan susun tanpa kekacauan atau perbezaan, tetapi banyak keadaan- keadaan sudah jadi kurang baik dan betul.

    1) Frequent allegations of the faulty electoral rolls can be a reality as dubious citizens and/or phantom voters prevail as in Project IC/ Project M and other Police reports. Daftar pengundi disangka tidak betul kerana termasuk warga luar (rakyat dubious) dan/atau pengundi hantu yang diketahui di Projek IC/ Projek M dan Laporan Polis lain-lain. (refer A48, A49 (latest book/buku Project IC), A51- examples only).
    2) The questioned conduct of the elections by all concerned EC included prior to nominations, during nominations, after nominations during campaign period and polling day including the votes counting and results. Perlaksaan pilihan raya oleh beberapa pihak yang berkenaan termasuk SPR adalah disoal dalam masa yang berkaitan iaitu sebelum penamaan, masa penamaan, masa selepas penamaan sehingga hari undi termasuk kira undi dan umum keputusannya.
    3) The Gazette dated 12th April, 2004 available in print in July 2004 in Kota Kinabalu confirm the discrepancies generally in the issues of ballot paper for Parliament seat and the total of respective State seats under that particular Parliament seat. (Sabah's scenarios in A2 and a few sample of others in A4). Sabah scenario is also illustrated in 4 specific cases in Q1-4 while others are in another 4 specific case in Q5-8. Q1-8 are provided in details in A1 (lower portion) for cross references. Such rampant discrepancies create great suspicion on the conduct of the EC especially on polling day.
    Gazette bertarikh 12hb April 2004 yang sedia pada Julai 2004 di Kota Kinabalu telah sahkan bebezaan seluruhannya dalam perkara keluaran Kertas Undi bagi kerusi Parlimen di bandingkan dengan jumlah keluaran kertas undi dalam Kerusi-kerusi negeri di masing kerusi Parlimen itu. (Hal Sabah di A2 dan lain-lain -contoh saja- di A4). Hal Sabah diketahui di 4 kes tertentu di Q1-4 apabila lain-lain di 4 kes tertentu di Q5-8. Q1-8 disedia butirnya di A1 (bawah) dengan rujukan. Kejadian berbezaan boleh hasilkan sangkaan besar atas perlaksaan SPR pada hari undi.

    Attached with this report are samples of observations of discrepancies, errors as marked in diamond shaped note plus press cuttings of about 50 pages. Adalah sedia dengan laporan ini adalah contoh bagi bermacam berbezaan, kesalahan, seperti di tanda intan dan lebih kurang 50 muka surat.

    In any possible misconduct of elections, rigging and irregularities may prevail giving rise to injustice when Government is formed. (A46, A47, A49). Perlaksaan yang kurang baik mungkin boleh ada tipu menyebabkan aniaya apabila Perentah dibentuk (A46, A47, A 49).

    In view of many complaints and questionable incidences, as indicated in pages marked (A38-53), it is suggested that a Royal Commission of Inquiry be held to establish beyond doubt that 'electoral frauds' as perceived by some quarters had not taken place. In the meantime, it is an open question as to how the present EC can conduct any future elections with the full confidence of the consumers who are also likely be the voters and candidates.
    Dengan banyak aduan dan kejadian disoal, yang disebut in muka surat (A38-53), di cadangkan sebuah Suruhanjaya diRaja siasat di bentuk supaya kesalahan/frauds pilihan raya yang disangka oleh rakyat di putus tiada diadakan. Sementara ini, soalan masa ini adakah SPR ini boleh melaksana pilihan raya akan datang dengan keyakinan penuh oleh pengguna-pengguna sabagai pengundi -pengundi dan calon-calon.


    Kong Yun Chee @Joshua,
    Chartered Accountant and Secretary General of Consumers Association of Sabah & Labuan FT.
    Akauntan Bertauliah dan Setiausaha Agung - Persatuan Pengguna Sabah dan WP Labuan
    26th December 2006 Kota Kinabalu. (NB: The Version in English is the basis of this report)

    Together with this report was attached a booklet of 53 pages.

    ReplyDelete
  17. Malaysian General Election 2004 and General Election 2008

    I have published a book on "Malaysian General Election March 2004 - A Case of Victory -landslide or rigslide"

    And the Election Chairman now retired on 30th December 2008 has been challenged in the following ways especially to explain those massive Issued Ballot Papers discrepancies of the Parliament seat and the respective State seats within it.

    Also he has to initiate whatever actions necessary to clear his name in the following items apart from what he had said he had done nothing wrong and if proven wrong he was to resign. The fact that he avoid the Court cases by legalities prove only one thing - mens rea.

    Http://corruptist.com/countries/malaysia
    For Malaysian leaders including (Tan Sri) Abdul Rashid Abdul Rahman.

    http://www.harakahdaily.net/bm/index.php/surat-pembaca/index.php?option=com_content&task=view&id=17934&Itemid=1
    About the 400 acres awarded to Abdul Rashid Abdul Rahman in Pahang for the arithmetic discrepancies in Pekan, Pahang where the deputy Prime Minister when he was returned in Pekan with a very big majority of 22,922 in Pekan in GE 2004 after only 241 majority in GE 1999.

    UMNO Pahang anugerah 400 ekar tanah pada Pengerusi SPR?

    New Year's Eve celebration tonight has been cancelled!
    Http://mt.m2day.org/2008/content/view/16502/84/
    By Raja Petra Kamarudin 31st December 2008

    Rashid's reply to the proposal to abolish the postal voting system is that if they do that then none of the cabinet ministers would be able to retain their seats. When the shocked assembly asked Rashid is not the purpose of the Election Commission to ensure that they run a fair and free election, he shocked the assembly even further by retorting that the purpose of the Election Commission is to ensure that the Malays do not lose political power.

    The Malaysian election system is rife with fraud and manipulation.
    So, sue me Rashid. Take me to court, you slime-ball, scumbag and poor excuse for a human, and let all these details surface in my trial. I eagerly await your Writ of Summons.

    ReplyDelete
  18. http://corruptlist.com/countries/malaysia

    For Malaysian leaders including (Tan Sri) Abdul Rashid Abdul Rahman.


    That is the correct URL.

    ReplyDelete
  19. This is my letter to the High Court

    Per: Appeal for High Court to review the Court Process on the filing and the hearing
    1. Saya sabagai Plaintiff bagi Kes-kes disebut atas mahu minta Mahkamah Tinggi menyemak semula kes-kes diuruskan dari masa fail kepada keputusan yang dibuat pada hari 16th January, 2009.

    2. Hal-hal yang kurang memuaskan ialah seperti bawah:-
    2.1 Jikalau kes-kes Writ of Summons tidak patuhi keadaan pilihan raya kenapa bolehlah dilulus untuk bicara. If the Writs did not fulfil the terms and condition of General Elections, why did the Court approve them for trial?

    2.2 Perkara Perlembagaan Persekutuan yang banyak dilanggahkan boleh di timbang kerana 118 and 118A adalah berkaitan dengan kepentingan awam . The question of violations of Federal Constitution is there to be seriously considered concerning 118 and 118A when public interest needs to be addressed.

    2.3 Kes-kes itu adalah dibenarkan kerana kepentingan awam bagi isu yang nyata, kenapa Y. A. Tuan Hakim David Wong tidak sebut kepentingan awam?

    When the cases were allowed in public interest at the early stage, why did the Judge David Wong not consider public interest?

    2.4 Soalan atas kelambatan kes bagi GE 2008 dibawah fasal 38 daripada Akta 5.

    The question of delays especially in General Election 2008 under section 38 of Act 5. If it is to be deemed an election case, there is a time limit to decide on such case. When public interest is concerned there is no time limit.

    2.5 Butir-butir dalam Writ saya dan cabaran oleh 1st Defendant adalah perkara sengketa yang boleh di bicara di Mahkamah.

    The fact of my Writs and the challenge of the 1st Defendant remain a dispute as the Court is the venue to decide. Strike out does not serve any purpose for good governance, transparency and justice for all in public interest.

    3. Enclosed are a set of supporting views on the general conduct of the cases in Court as per appendix 1.

    Yang benar,


    Joshua Kong Yun Chee - Plaintiff

    ReplyDelete
  20. AN APPEAL FOR REVIEW

    A complainant penalised in Court cases in a miscarriage of Justice in public interest

    1. There was a 16th January, 2009's Judgement (copy as per appendix 2) by the High Court of Sabah and Sarawak in Kota Kinabalu on the 'strike out' applications on the two cases on General Election 2004 and General Election 2008 as consolidated on 30th December 2008. The Court Order was made for the applications to strike out my Writs of Summons albeit both Summons in Chambers (SIC) for the Order 18 Rule 19(1) (d) of the Rules of the High Court 1980 were filed in violation of the Order 12 Rule 7(1) of the Rules of the High Court 1980 as the SIC for General Election 2004 and General Election 2008 were filed on 5th November, 2008 and 12th November 2008 respectively when the dateline for both SIC was 20th June 2008. There were other violations by the defendants and their solicitors in Senior Federal Counsel (SFC).

    2. Summons in Chambers Order 18
    The grounds for the Strike out applications in SIC were vague initially each presented in three pages only as I will refer to this later. Then I fiercely filed my Affidavit in Opposition of many pages with relevant exhibits such as GE 2004 (15 pages and 5 exhibits) dated 14th November 2008 GE 2008 (14 pages and 9 exhibits) dated 25th November, 2008 both filed within 14 days of the SIC for Order 18.

    3. Filing of Court Cases in the High Court
    Briefly about the two Court Cases, the Writ of Summons for GE 2004 (Writ 1) was filed on 25th February, 2008 and GE 2008 (Writ 2) filed 25th April, 2008 and both Writs were approved on 23rd May 2008 for service to the defendants on 26th May, 2008. The defendants of Writ 1 were Election Commission Chairman (1st), The National Registration Department (2nd) and the Government of Malaysia (3rd). The defendant of Writ 2 was the Election Commission Chairman.

    3.1 The dates of Mention were set by the Court as GE 2008 (7th October 2008), GE 2004 (5th November, 2008). When I filed Writ 2 on 25th April, 2008, I wrote to the Court to remind it of my Writ 1 filed on 25th February, 2008. Then I got both the Writs back for service on 23rd May, 2008. I had earlier been informed by the defending counsel in a memorandum of appearance dated 5th June 2008. Then I received a notice of Mention for Writ 2 on 19th June 2008 for a Mention date on 7th October, 2008 - a rather long wait if it was to be treated as an Election Petition. Then I filed the Affidavit of Service of both Writs on 4th July, 2008. Meanwhile I await the date of Mention for Writ 1 filed on 25th February, 2008.

    3.2 When I attended the Mention for GE 2008 (Writ 2) on 7th October, 2008, the defendant and his defence counsel was absent without any reasons and it was delayed for almost an hour, and failure to appear forced the presiding judge Deputy Registrar En. Ikmal Hishan bin Mohd Tajuddin then to fixed a new Mention date on 12th November, 2008 while I handed over a two pages of submission for the case to proceed. The next day, I wrote a letter to the Court requesting for a mention date for the GE 2004 (Writ 1). Then a Mention date was fixed for 5th November 2008 on 16th October, 2008 for GE 2004 but the defendant was Demirama Sdn. Bhd., instead of the three defendants. That notice was then amended accordingly on my observation.

    4. Writ 1 (GE 2004) Mention date on 5th November, 2008.
    I was served just before the Mention Hearing a SIC Order 18 for hearing on 5th November 2008 based on document dated 30th October, 2008. The Hearing was before High Court Judge Justice Datuk Clement Allan Skinner and the SIC was allowed despite out of date under Order 12 Rule 7(1). I was given the chance to file an Affidavit in Opposition and the next hearing fixed for 5th December, 2008.

    5. Mention /Hearing on Order 18 on 5th December 2008
    On 4th December 2008's afternoon I went to check the list of cases set for 5th December 2008 and saw my name set for the afternoon that day. Then I turned up for the hearing on 5th December 2008's afternoon and found my case appearing both in the morning and afternoon sessions. It was earlier fixed for the afternoon at 3 p.m., and the defending counsel did not turn up and was called to attend by the Court Clerk on the instruction of the Judge. Then SFC turned up at 3.25 p.m. After the brief moment over the consolidation, it was fixed for 16th December 2008. Again it was postponed on 16th December, 2008 on the request of the SFC to 30th December, 2008.

    6. Mention / Hearing on 30th December 2008
    At that hearing the Court was given the skeletal submission by the Defending Counsel dated 5th December, 2008 by SFC Mr. Steve Ritikos and a unsigned copy was extended to me together a list of legal cases and authorities. I would like to go back to the rumour that SFC was there in the morning of 5th December, 2008 with the intention to strike out the cases when I was not present as that skeletal submission document was dated 5th December, 2008. Why was it not given to me at the afternoon of 5th December, 2008?. So the next hearing was fixed for 16th January, 2009 likely for the declaration.


    7. Hearing in Chambers on 16th January, 2009
    I was very early for the hearing fixed for morning and I saw my name in one of the pages without any Judge's name at the High Court 2's verandah board of notices of case. Then I was waiting for my case after 9 a.m., and then I realised something was amiss and I went back to the notice board. I saw another piece of paper with my name on it but at a different venue to be heard by Judge David Wong at Block B, second floor. Imagine, I had a few heavy hand luggages of files and books to carry all the way down some stair case to that Chambers in Block B from Block A . My heart could sustain the heavy duty as it could be courting health hazard.

    7.1 At about 10.45 a.m, it was my turn to appear in the Judge's Chambers and when the proceeding started, the Judge was asking where was my skeletal submission in reply albeit it was 60 pages of submission together with another 50 pages of the Malaysian Bar's Article on Public Interest. It was on his table and I had handed into the High Court on 13th January, 2008. The impression was that the Judge did not read my detailed submission albeit termed skeletal as there was more to be added to that. That submission only contained a few pages of the Public Interest issue while it can be extended to the 50 pages on Public Interest.

    8. CRUX OF THE TRIABLE ISSUES to be reviewed
    8.1. Were my writs 1 and 2 to be or not to be FC 118 and 118A?
    118 is applied for all individual election cases according to tradition. 118A is hardly applied here. My Writs complied with Act 5 if we want to consider the Election Offences .

    8.2. My Writs were more than just on the General Election?
    My Writs were not constructed as Election Petition although it is about the General Election but applied to the whole nation which is provided in the Federal Constitution. Also my Writs were filed in public interest and it is in public interest that the Writs were approved by the High Court and also taking up the challenge of the 1st Defendant and 3rd Defendant in GE 2004. When 1st defendant claimed he and EC did nothing wrong, then we need to prove the arithmetic discrepancies which are frauds committed inside and/or outside the EC. Frauds and Complaints under 118A is not restricted by time. The challenges of going to Court were made in mass media in late November 2007 by the EC Chairman.

    9. Who actually caused the delay in Court?
    If you study the process in the Court, it is obvious the delay is due to SFC in GE 2008 although filed within 21 days..
    For GE 2008, it was filed with 17 days of the Gazette on 25th April, 2008 and the first aborted mention was 7th October, 2008 when most Election Cases were already decided or at advanced stage of hearing. Then the next mention was on 5th November 2008 when SFC wanted to strike out the Writ - too late to do that.

    10. A public challenge thrown by the ex Chairman of Election Commission - the first defendant of the GE 2004 and defendant of GE 2008 to the Courts. So it was a dispute to be settled by the Court and I took that challenge up in public interest for good governance, transparency, and justice.

    11. The substance of my Writs can never be academic as it is the basis of the challenge.
    The SFC was unsure of what are his grounds under Order 18 Rule 19 (1)(d) as later reflected in his skeletal submission on 5th December 2008.
    The Judge did not really read my skeletal submission in reply as it was submitted on 13th January and the Judgement on 16 January, after a brief hearing.
    The Judge did not consider the aspect of Public Interest when it was public interest that Writs were approved and proceeded from 25th February and 25th April, 2008 for GE 2004 and GE 2008 respectively.

    12. I had written a letter on 2nd January 2009 for a copy of the notes of proceeding up to that date. I have yet to obtain these except a brief note on the Judge's decision on 16th January, 2009 on 20th January, 2009 after writing another letter on 19th January, 2009..

    13. I also attached a copy of earlier observation on the conduct of the Court process dated 10th December 2008 as per Appendix 3.

    I trust the Court cases be reviewed accordingly.



    Joshua Kong 21 January 2009

    ReplyDelete
  21. This letter was submitted to the High Court, KK on 28 January, 2009



    Tuan Timbalan Pendaftar 21hb Jan, 2009
    Mahkamah Tinggi
    Kota Kinabalu
    Tuan,
    Re: Civil Suit No. K21-10 of 2008
    Joshua Kong Yun Chee Plaintiff
    Vs
    ELECTION COMMISSION CHAIRMAN 1st Defendant
    National Registration Department 2nd Defendant
    Government of Malaysia 3rd Defendant
    Re: Civil Suit No. K21-14 of 2008
    Joshua Kong Yun Chee Plaintiff
    Vs
    ELECTION COMMISSION CHAIRMAN Defendant
    -----------------------------------------------------------------------------------------------------------
    Per: Appeal for High Court to review the Court Process on the filing and the hearing
    1. Saya sabagai Plaintiff bagi Kes-kes disebut atas mahu minta Mahkamah Tinggi menyemak semula kes-kes diuruskan dari masa fail kepada keputusan yang dibuat pada hari 16th January, 2009.

    2. Hal-hal yang kurang memuaskan ialah seperti bawah:-
    2.1 Jikalau kes-kes Writ of Summons tidak patuhi keadaan pilihan raya kenapa bolehlah dilulus untuk bicara. If the Writs did not fulfil the terms and condition of General Elections, why did the Court approve them for trial?

    2.2 Perkara Perlembagaan Persekutuan yang banyak dilanggahkan boleh di timbang kerana 118 and 118A adalah berkaitan dengan kepentingan awam . The question of violations of Federal Constitution is there to be seriously considered concerning 118 and 118A when public interest needs to be addressed.

    2.3 Kes-kes itu adalah dibenarkan kerana kepentingan awam bagi isu yang nyata, kenapa Y. A. Tuan Hakim David Wong tidak sebut kepentingan awam? When the cases were allowed in public interest at the early stage, why did the Judge David Wong not consider public interest?

    2.4 Soalan atas kelambatan kes bagi GE 2008 dibawah fasal 38 daripada Akta 5. The question of delays especially in General Election 2008 under section 38 of Act 5. If it is to be deemed an election case, there is a time limit to decide on such case. When public interest is concerned there is no time limit.

    2.5 Butir-butir dalam Writ saya dan cabaran oleh 1st Defendant adalah perkara sengketa yang boleh di bicara di Mahkamah. The fact of my Writs and the challenge of the 1st Defendant remain a dispute as the Court is the venue to decide. Strike out does not serve any purpose for good governance, transparency and justice for all in public interest.

    3. Enclosed are a set of supporting views on the general conduct of the cases in Court as per appendix 1.

    Yang benar,


    Joshua Kong Yun Chee - Plaintiff

    ReplyDelete
  22. This is appendix 1.

    AN APPEAL FOR REVIEW

    A complainant penalised in Court cases in a miscarriage of Justice in public interest


    appendix 2 is the Judgement in summary.


    appendix 3 is the two-pages of observation addressed to the Chief Justice of Malaysia on 10th December, 2008 over unexplained development in the Courts up to 5th December 2008.

    CJ did respond promptly from his office twice by emails.

    ReplyDelete
  23. Is this a symbol of DARK JUSTICE?


    I went to the High Court in Kota Kinabalu to file my Appeal and at the counter a senior court official was at the computer trying to do something, I did not say anything but just waited attention from the other court official in attendance. Meanwhile, a dark page came out from the printer.

    I wonder how come a fully dark page can come out from the printer like that, never experienced one such incidence after printing tens of thousands of pages myself.

    So it is sort of message of DARK justice as I submitted the document above:-


    Per: Appeal for High Court to review the Court Process on the filing and the hearing

    AN APPEAL FOR REVIEW

    A complainant penalised in Court cases in a miscarriage of Justice in public interest


    Joshua Kong

    ReplyDelete
  24. CORRUPTED EC Chairman Rashid..


    Malaysian General Election 2004 and General Election 2008

    I have published a book on "Malaysian General Election March 2004 - A Case of Victory -landslide or rigslide"

    And the Election Chairman now retired on 30th December 2008 has been challenged in the following ways especially to explain those massive Issued Ballot Papers discrepancies of the Parliament seat and the respective State seats within it.

    Also he has to initiate whatever actions necessary to clear his name in the following items apart from what he had said he had done nothing wrong and if proven wrong he was to resign. The fact that he avoid the Court cases by legalities prove only one thing - mens rea.

    Http://corruptlist.com/countries/malaysia
    For Malaysian leaders including (Tan Sri) Abdul Rashid Abdul Rahman.

    http://www.harakahdaily.net/bm/index.php/surat-pembaca/index.php?option=com_content&task=view&id=17934&Itemid=1
    About the 400 acres awarded to Abdul Rashid Abdul Rahman in Pahang for the arithmetic discrepancies in Pekan, Pahang where the deputy Prime Minister when he was returned in Pekan with a very big majority of 22,922 in Pekan in GE 2004 after only 241 majority in GE 1999.

    UMNO Pahang anugerah 400 ekar tanah pada Pengerusi SPR?

    New Year's Eve celebration tonight has been cancelled!
    Http://mt.m2day.org/2008/content/view/16502/84/
    By Raja Petra Kamarudin 31st December 2008

    Rashid's reply to the proposal to abolish the postal voting system is that if they do that then none of the cabinet ministers would be able to retain their seats. When the shocked assembly asked Rashid is not the purpose of the Election Commission to ensure that they run a fair and free election, he shocked the assembly even further by retorting that the purpose of the Election Commission is to ensure that the Malays do not lose political power.

    The Malaysian election system is rife with fraud and manipulation.
    So, sue me Rashid. Take me to court, you slime-ball, scumbag and poor excuse for a human, and let all these details surface in my trial. I eagerly await your Writ of Summons.




    Http://powerpresent.blogspot.com/2007/11/mafrel-bersih-to-monitor-malaysian-12th.html
    MAFREL BERSIH? – To monitor the Malaysian 12th General Election; EC Chairman: "I Will Resign" If Court said there is rigging in any GE or By Election [November 20, 2007]

    Http://www.dailyexpress.com.my/print.cfm?NewsID=54098 20 November, 2007
    Prove rigging and I'll quit, says Election Commission Chairman

    http://s180.photobucket.com/albums/x305/13Friday_7/Joshua-Kong-cover/

    ReplyDelete
  25. http://www.blogger.com/profile/07537845007831237535

    Sarawak General Elections 2011
    MALAYSIA POLICE REPORTS
    MIGS-MEGA-ICC-GR...
    Treason-in-Sabah...
    Higher-Education...
    POLITICS-MISSION
    Writ of Summons on MAZU, Kudat, Sabah
    migs-sabah-joshu...
    Petronas&Sab...
    Memorandums-of-C...
    Memo to SKM 2011
    Issues of foods & branded food products
    higher-education...

    ReplyDelete
  26. http://malaysia-police-reports.blogspot.com/

    http://migs-sabah.blogspot.com/

    http://treason-migs-sabah.blogspot.com/

    http://mazu-kudat.blogspot.com/

    (b) Before the abovementioned incident aforementioned, the Plaintiff in his capacity as the State Minister in charge of Tourism, Culture and Enviroment had on a number of occasions taken issue with the 1st Defendant (Musa Aman) over his action as the State Minister of Finance in awarding contracts within the purview of the Plaintiff's ministry without tender or first informing the Plaintiff . The awards relate to more than 100 contracts at a total value in excess of RM 60 million and included the contract referred to in item (a) above of these particulars;

    ReplyDelete
  27. This is the seat of the illegal PM Najib

    GENERAL ELECTIONS OF MALAYSIA IN MARCH 2004 - an analysis by seat
    12. PAHANG
    P085 Pekan -bn 2 State -N Ballots I Not Ret rejected b % majority
    No of Voters 52687 (G) (H) (I) (J) (K) (L)
    Ballot Issued (A) 41,046 8,520 10,794 812 167 80.98 4,491
    Not Returned (B) 0 8,521 15,204 41 266 80.49 4,163
    rejected ballots (C) 56 8,522 7,011 19 231 77.01 3,247
    % (D) 77.91 8,523 9,539 26 190 83.93 4,005
    majority (E) 22,922 total 42,548 898 854 322.41 15,906
    discrepancies (F) Av ===== 80.6
    % (F1) 1,418 8,520 Pulau Manis 13,329
    Ballots (F2) 1,502 8,521 Peramu Jaya 18,889
    N Ret (F3) 898 8,522 Bebar 9,104
    8,523 Chini 11,365
    total 52,687
    NB: the ballot issued discrepancies were (42,548 - 41.048) = 1,500 and the discrepancies of majority of BN votes were (22,922- 15,906) =7,016

    ReplyDelete
  28. When your website or blog goes live for the first time, it is exciting. That is until you realize no one but you and your. this site

    ReplyDelete