Malaysia recently held its state elections which saw candidates rallying with their respective political parties in an effort to garner as much support as possible from the voters in their constituencies. In the process, they had made many propitious promises through their ceramah series and from the pledge contained in their manifestos, be it verbally or in writing.
Now, the election has ended, and it is time for those elected to fulfill their end of the bargain i.e., to materialize whatever they had promised to us in their manifestos. But, are they legally obliged to do so? Can the voters bring a suit against their representatives for failing to deliver their promises?
WHAT IS MANIFESTO?
According to Black’s Law Dictionary (8th Edn), cited in the case of Kho Whai Phiaw v Chong Chieng Jen [2009] 4 MLJ 103, a manifesto is defined as a formal written statement publicly declaring the issuer’s principles, policies, or intentions. Manifesto acts as promises made by a political party during the campaign period before an election to attract votes as per the case of State Government of Selangor & Anor v Murtini bt Kasman & Ors, [2014] 4 MLJ 234.
CAN WE SUE – THE ISSUE OF LOCUS STANDI?
Before we dive further into our queries, we must first determine whether we, as voters, can actually bring a suit on this matter. One of the issues raised in the case of Affandy bin Abd Raof Faiz & Ors v Mohamed Azmin bin Ali [2021] MLJU 2932 was that for the plaintiffs to prove that they have the necessary locus standi, they must first prove that they had voted for the defendant, and this is impossible as the ballot papers were destroyed immediately to preserve the secrecy of the votes. The court held that the plaintiffs could prove that they had voted for the defendant by producing oral testimony in court and thus subsequently able to show they have the locus standi.
Furthermore, the prerequisite requirement of having a locus standi is not limited to voters who voted for a particular candidate. In the case of Sahari bin Basri & Anor v Kerajaan Negeri Selangor & Ors [2014] 10 MLJ 270, the court held that members of the public also possess the locus standi if they can show they have common interest and common grievance in the matter. Here, the plaintiffs claimed that they were domestic water consumers residing in Selangor and were subject to the free water scheme as promised in the election manifesto. The court believed that the requirement of common interest is satisfied and that the free water scheme only applies to those using individual water meters was discriminatory and thus provided for the common grievance requirement.
At this juncture, it is crystal clear that a voter or a member of the public who can prove they have both the common interest and grievance may bring a claim against the candidate they have voted for or the elected government. The question is, will their claim be successful or even entertained by the courts?
THE MERITS OF THE CASE
In the case of State Government of Selangor & Anor v Murtini bt Kasman & Ors [2014] 4 MLJ 234, the plaintiffs, a group of single mothers in Selangor, filed a suit seeking a declaration that they were entitled to the single mother allowance as promised by the Pakatan Rakyat coalition in their election manifesto. The coalition was voted into power, and they have failed to introduce any scheme providing allowance to single mothers. The court struck off the plaintiffs’ claim as being an abuse of the process of the court. Justice Mohd Hishamudin JCA (as his Lordship was then) explained that:
“…it is a sound judicial policy that a government should not be bound by an election manifesto. A manifesto contains promises by a political party made during the election campaign period in order to attract votes. They are not solemn promises or representations made by a government. A political party and the government are two different legal entities, and they remain so, despite the fact that the political party that made the promise in its manifesto wins the election and eventually forms the government. As we see it, the obligation to honour an election promise, must at best, be only a moral obligation, but nothing more than that.”
From the above, it can be seen that political parties are not legally bound by the promises they had made in their election manifesto as, at that time, they were not the government. Nevertheless, what if the ruling government made the promises in a political speech? Does this principle still applicable in that scenario?
In the case of Nasir @ Mohamad bin Manaf and Others v Datuk Seri Panglima Joseph and Others’ [2009] MLJU 740, the then Chief Minister of Sabah, Datuk Harris Salleh had made a promise in 1979 called ‘Janji Kerajaan Berjaya’ (the 1979 agreement) where every landless Sabahan is entitled to 15 acres of land. Years have passed, and the plaintiffs, in this case, contended that the 1979 agreement was enforceable and thus binds successive state governments. They brought a claim against the defendants, as members of the subsequent State Cabinet, for fraud as failing to alienate the lands to the plaintiffs.
The issue before the court was whether the 1979 agreement created a valid and binding agreement between the plaintiffs and the defendants?
The court held that the 1979 agreement is not a contract, and even if it is a contract, it is not a commercial contract that is enforceable in court. This is because it was a mere Government’s undertaking, an expression of intention to act in a particular way in a specific event. Undertakings of this nature must not have the effect of fettering the government’s future executive action, which must necessarily be determined by the community’s needs when the question arises.
Furthermore, the court noted that the 1979 agreement was made without consideration and thus void under Section 26 of the Contracts Act 1950.
26. An agreement made without consideration is void, unless –
The essence of consideration is that the promisee has taken some kind of burden or detriment upon himself. In this case, the plaintiffs have provided none. The 1979 agreement made by Datuk Harris Salleh was a declaration that was made unilaterally and therefore fell short of making a contract.
WHAT SHOULD WE DO THEN?
It seems that as a voter and a member of the public, we have no legal recourse to ensure that politicians and their parties will fulfill their promises to us. Indeed, we might not have legal recourse, but we can still depend on political recourse to hold politicians and their parties accountable.
One of the available political recourses can be seen from the pronouncement of Justice Raja Azlan Shah FJ, as His Royal Highness then was, in the case of Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187:
“Those who find fault with the wisdom or expediency of the impugned Act, and with vexatious interference of fundamental rights, normally must address themselves to the legislature, and not the courts; they have their remedy at the ballot box.”
Although the above pronouncement was made with reference to interference with fundamental rights, it is also applicable in cases where politicians and political parties do not practice what they preached. We must exercise our right as registered voters to vote them out of office when the time comes.
In the meantime, we may also channel our grievances or complaints that we have to our representatives as they have offices in their respective constituencies. There is a reason why they are called wakil rakyat – to represent and champion our interests, address our concerns, and alleviate our predicaments.
At the rate it is going, although we are equipped with the necessary locus standi to bring an action deriving from matters in an election manifesto or political speech, courts are not prepared to allow such a claim. Despite that, as registered voters as well as a member of the public, we can still hold politicians and political parties accountable for their actions via the ballot box and communicate directly with them.
Disclaimer: This article is for informational purposes only and does not constitute any legal advice. If you have any questions, please contact us directly.
