Integrity of EC and Tan Sri Abdul Rashid in question


28 March 2007

Press conference at PKR HQ, 10am

The Election Commission chairman Tan Sri Abdul Rashid Abdul Rahman has once again misled the public with his latest statement on 21 March 2007. The Coalition for Clean and Fair Elections (BERSIH) is extremely disappointed that he has avoided answering the serious concerns and issues raised by BERSIH on 13 March 2007. As a public servant, Tan Sri Rashid is, by the powers bestowed on him by the Federal Constitution, responsible for the conduct of elections and has a duty to address the concerns of the Malaysian public.

BERSIH is of the opinion that Tan Sri Abdul Rashid’s statement intentionally ignored certain recent developments where the Courts have addressed the role of the Election Commission, and the process and conduct of elections as a whole. In 2001, Justice Datuk Muhammad Kamil Awang nullified the election result of Likas, Sabah on the ground that the 1998 electoral roll for the state seat was illegal as phantom voters, including non-citizens, had cast their votes on polling day. In his judgement, Justice Muhammad Kamil took the EC to task for its role in certifying and gazetting a questionable electoral roll, in spite of the numerous complaints made to the EC and the Government to carry out investigations into the existence of non-citizens in the electoral roll. He then went on to say that “it was unthinkable that the Election Commission should shut off the objections without inquiry” and “a constitutional wrong for SPR to have rejected the objections outright”.

According to the Election (Registration of Electors) Regulations (Sabah) 1971, if a voter files an official objection against the inclusion of a particular person, the EC has to hold a Public Inquiry to which both the objectors as well as the ‘objectee’ are invited.

However, after the Likas judgment, the Government with the consent of the EC made an amendment to the Election Act 1954 in June 2002 whereby the electoral roll — once certified or recertified — shall be “deemed to be final and binding” and not “be questioned or appealed against in, or reviewed, quashed or set aside by, any court.” This amendment has effectively removed all legal avenues to challenge the credibility of the electoral roll. When he was in part responsible for immunizing the electoral roll from any challenge in a election petition, why is Tan Sri Abdul Rashid asking his critics to take him to court?

Tan Sri Rashid is also aware of the judicial review case initiated by Parti Keadilan Rakyat against the EC in April 2004 in respect of some of the irregularities that occurred during the 11th General Elections. Parti Keadilan Rakyat applied for rulings from the court with regard to several issues — the use of several versions of electoral rolls by the EC, allowing “pondok panas” at the last minute in contravention of the law, the extension of voting time in Selangor up to 7 pm, the practice of writing the voter’s serial number on the counterfoil of the ballot paper and whether candidates could still run for elections if convicted but had an appeal pending.

What did the EC do? Through the Attorney-General who appeared for the EC in court, it objected to PKR’s application on the grounds that it was a back-door way to challenge the election and said that any challenge regarding the conduct of an election had to be by way of an election petition. PKR had expressly said in its affidavit that it was not seeking to nullify the result of the general election in the way that a election petition would nullify the outcome in a particular constituency but was seeking rulings from the court to clarify the law for the future guidance of the EC and for the benefit of the Malaysian electorate. Tan Sri Abdul Rashid’s call for his critics to take him to court is therefore completely hypocritical when he had then instructed the Attorney-General to object to PKR’s challenge in that way.

We would also like to challenge him to answer the following queries.

  1. 10,254 missing ballot papers in P36 Kuala Terengganu

According to the provisional results announced by the EC and covered by the mainstream press immediately after the 2004 elections, 71,322 voters or 98.39% of the registered electorate turned out at the polling stations and collected their ballots. However, 10,254 ballots were not returned, in another words, they went missing somewhere between the issuing desk and the ballot box. Interestingly, the provisional result also showed that 10,130 voters turned out to collect only their parliamentary ballot papers and not their state papers.

Tan Sri Abdul Rashid’s explanation then was that the ballot papers were taken home by ‘collectors’. It is simply beyond our comprehension that there were more than 10,000 ‘ballot paper collectors’ in Kuala Terengganu, when ‘normal’ people usually collect coins, stamps and so on.

Then in an even more bizarre twist to the whole episode, the final result gazetted on 12 April 2004 showed that the parliamentary ballot papers collected were reduced by 10,237 and the missing ones by 10,014 to only 240. So, what caused the original discrepancy? There was no recount in Kuala Terengganu, according to EC’s own report.

Now, Tan Sri Abdul Rashid has righteously claimed, “What is it that we are not transparent about… when we count, display results, announce results? Everything is seen and done in the open…” We want him to explain what the EC did to make 10,014 ‘ballot collectors’ disappear in Kuala Terengganu. How can the EC convince the public that there was no possibility of ballot stuffing or number tampering in the electoral process?

  1. 5,486 missing ballots in P74 Lumut

In a similar fashion, 5,486 ballot papers were collected but not returned in Lumut (P74). Tan Sri Abdul Rashid’s explanation for that on 13 April 2004 was that “… many navy personnel [there] were out patrolling at sea, so they could not make it (in time for the postal balloting exercise)”. According to his own book, The Conduct of Elections in Malaysia (1994: 96), postal votes were normally delivered five days after nomination day. The public is still interested to know about the patrolling operation that involved over 5,000 personnel from 19th to 21st March 2004.

In addition to that, Tan Sri Rashid further revealed that 67,000 postal ballot papers or one-third of the 200,712 issued were not returned nationwide. Technically, if these ballots were systematically transferred to marginal constituencies for ballot-stuffing purposes, the number would be sufficient to overturn the results of 38 most marginal constituencies.

Is this not a concern for the Election Commission chairperson whose top priority is by right the probity of elections? Should he not support BERSIH’s proposition to abolish domestic postal voting?

  1. The misinformation that “EC do not make laws”

While parliamentary laws have to be made and amended by Parliament, the proposals for any electoral law amendment come from the EC in practice. In fact, Section 16 of the Elections Act 1958 authorizes the EC to make by-laws called regulations and under Section 17, these regulations need only to be laid before Parliament, which may choose to annul them. In practice, the Election Commission has made and amended three regulations on the Conduct of Election, Registration of Electors and Postal voting. All three regulations, available at http://www.spr.gov.my/index/legislation.htm , begin with this line: “IN exercise of the powers conferred by Section 16 of the Elections Act 1958 [Act 19], the Election Commission, with the approval of the Yang di-Pertuan Agong, makes the following regulations:”

Is the EC chairman not ashamed that he has misinformed the public?

The only way for Tan Sri Abdul Rashid is out

As one of the institutions that governs the functioning of our democracy, the Election Commission and its officials are as important as the Judiciary and must therefore possess the highest level of integrity and credibility. In his desperate move to defend his and the EC’s reputation, it is most unfortunate that Tan Sri Abdul Rashid has only further demonstrated the EC’s weakness and inability to conduct elections freely and fairly, and his own dishonesty.

In the interest of the nation and democracy, we urge Tan Sri Abdul Rashid to resign now, honourably.