‘Sanusi didn’t break any law by showing ballot paper’

PETALING JAYA: Caretaker Kedah Mentri Besar Datuk Seri Muhammad Sanusi Md Nor did not commit any election offence by displaying his ballot paper, according to two lawyers.

Legal practitioner Tan Sri Azhar Azizan Harun said there was nothing in the law that prohibits anyone from voluntarily disclosing their own vote.

“The relevant section would be Section 5 of the Election Offences Act 1954. If we read the section properly and in depth, it is obvious that none of the provisions in the said Section 5 applies to what Muhammad Sanusi did,” he said when contacted yesterday.

Azhar said Section 5 primarily prohibits candidates or agents who obtained information about particulars of votes or voters from disclosing such information, and also prohibits them from asking voters who they voted for, or from disclosing who had applied for a ballot paper during the voting process.

They are also barred from disclosing any information they get at the counting centre relating to who a voter voted for, among other things, he added.

Azhar said candidates or agents were also required to sign an oath of secrecy before they attended proceedings involving ballot papers at polling stations and counting centres.

“So basically the law is designed to protect the secrecy of votes that are obtained or may be obtained by agents or candidates and clerks, among others.

“But if a voter wants to disclose his own vote voluntarily, there is nothing under the law that prohibits that,” he added.

Azhar said “ballot selfies” was a new phenomenon and there was a lot of it in the United States, where voters would take selfies with their marked ballot papers.

He said in 2014, the state of New Hampshire in the United States passed a law specifically prohibiting ballot selfies.

“Like many states, New Hampshire had already prohibited voters from disclosing their marked ballots.

“The 2014 legislation (HB 366) took it a step further by explicitly prohibiting voters from taking a digital image of a marked ballot and distributing or sharing it on social media,” he said.

Azhar said the law was challenged in Federal Court and ruled unconstitutional as it was a violation of the US Constitution’s First Amendment rights to free speech, but the court concluded that the ballot selfie was a constitutionally protected political speech that can be restricted only by meeting the highest standard of constitutional scrutiny.

Another lawyer, Asiah Jalil, also said Muhammad Sanusi had not committed a faux pas (tactless act).She cited Section 39 of the Act, which states that no elector who has voted in any election shall, in any proceeding questioning that election, be required to state for whom he or she voted for.

She emphasised that Section 39 only operates when an election petition was filed.

“When a petition is filed, in the proceedings at the Election Court later, no one can force any voter to tell who they voted for during the election. That’s what Section 39 means.

“Muhammad Sanusi wanted to show his ballot paper, no one forced him, no one told him to, no one wanted him to, that’s up to him,” said Asiah.

There have been incidents in the past when politicians revealed their ballot papers.

In April 2019, Umno deputy president Datuk Seri Mohamad Hasan revealed his marked ballot paper to reporters during the Rantau state by-election.

In 2013, Barisan Nasional candidate Tengku Zaihan Che Ku Abdul Rahman showed his ballot papers to reporters during the Besut by-election.

No action was taken in either situation.

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