Friday,
January 16, 2009
http://www.malaysianbar.org.my/administrative_law/the_role_of_public_interest_litigation_in_promoting_good_governance_in_malaysia_and_singapore.html.
http://ge-2004-2008.blogspot.
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.
http://ge-2004-2008.blogspot.
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.
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,
.........................................
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,
.........................................
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.
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 )
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Kong Yun Chee @ Joshua Kong )
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At the Kota Kinabalu, in the state )
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Of Sabah , )
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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.
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