7 DECEMBER 2007
BERSIH registers its utmost disgust at the unprofessional behaviour of Tan Sri Abdul Rashid Abdul Rahman, Chairman of the Election Commission. BERSIH has no other choice but to conclude that his disgraceful conduct can only be construed as an act of ‘currying favour’ with the Executive, whom he now desperately depends on to extend his tenure as the Chairman of the EC through a Constitutional Amendment Bill in the ongoing parliamentary session.
(i) Personal attack on PAS president and PAS
BERSIH deplores the personal and vindictive attack on PAS president Dato’ Seri Tuan Guru Abdul Hadi Awang by Tan Sri Rashid on 4 December in his opening speech at a “Media and the General Election” seminar at the Institut Akhbar Malaysia.
BERSIH finds it Tan Sri Rashid’s remarks most unprofessional and regrets that instead of doing his job properly, he is resorting to personal attacks of this kind – which is wholly unbecoming of the custodian of free and fair elections in this country.
Tan Sri Rashid also claimed that there were no phantom voters in Likas, and that PAS was manipulative and like to ‘twist and turn’ certain facts. His tirade also included an attack on the party organ, Harakah.
(ii) EC chief’s tirade against Justice Muhammad Kamil
In his speech, Tan Sri Rashid was at his most arrogant and unprofessional, claiming that Justice Datuk Muhammad Kamil Awang was biased in his judgment in the well-known Likas Election Petition judgment and alleging that the judge took it out on the government because he was ‘frustrated with certain things’.
Tan Sri Rashid has been silent on the Likas judgment from the time it was delivered in June 2001 until now. His sudden and unsolicited attack on the judgment of Justice could very well tantamount to a ‘contempt of court’. Why make an allegation of bias now which he has never made before? Is this a sudden emotional afterthought, six years later? What instigated this?
We call upon him to answer the serious allegations against him and the EC in the judgment which are all based on detailed facts and law.
In 2001, Justice Datuk Muhammad Kamil Awang nullified the election result of Likas (Sabah) on the grounds that the 1998 state electoral roll was illegal as phantom voters, including non-citizens, had cast their votes on polling day.
He found that prior to the gazetting of the roll by the EC, 4585 objections were made to List A and 246 objections to List B. The basis of the objection was that these persons on the roll were suspected of having dubious identity cards. Detailed documentary evidence of this was presented during the Election petition hearing.
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. This failure to hold inquiry was sufficient to nullify the election result.
But what did Tan Sri Rashid as Secretary of the EC do? Instead of following the law and holding a public inquiry, the federal EC directed that no inquiry be held “except in cases of death or loss of eligibility”. The EC in Sabah followed the directive and did not hold an inquiry.
Justice Kamil Awang said that “it was unthinkable that the Election Commission should shut off the objections without inquiry” and “a constitutional wrong for EC to have rejected the objections outright. As the custodian of free and fair elections, the EC was duty bound to do it. “
So, in other words, Tan Sri Rashid and others in the leadership were responsible for perpetuating fraud in the electoral roll instead of cleaning it up.
In any democratic country, a person doing what he did would have been immediately removed from his job.
But because the fraud which he insisted on covering up was exposed in the judgment of Justice Kamil Awang, what did Tan Sri Rashid do?
The Government with the consent of the EC amended the Election Act 1958 (gazetted on 30 May 2002) whereby Section 9A clearly states that the electoral roll, once certified or recertified and published in the Gazette, 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”.
In other words even if the electoral rolls are so flawed as to influence the election result, the election result would still stand. This amendment has effectively removed all legal avenues to challenge the credibility of the electoral roll.
So Tan Sri Rashid, instead of calling the judge biased six years after the fact, deal with the factual assertions and evidence set out in the judgment.
(iii) Judicial review case by PKR in 2004
In the 2004 General Election, there were at least three versions of the electoral roll being circulated and the deletion of many valid voters from the roll in Selangor, which led to Parti Keadilan Rakyat initiating a judicial review case against the EC in April 2004 in respect of the irregularities that occurred, such as:
- 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.
The Attorney-General who appeared for the EC in court 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.
Needless to say, the Court struck off the case. An appeal is pending in the Court of Appeal.
If Tan Sri Rashid is sincere about his claims to improve the system, why did he instruct the Attorney General to make those objections in court?
(iv) The dead who came back to vote in Ijok
BERSIH demands that Tan Sri Rashid respond to the facts and stop making up flimsy excuses, especially when the evidence is concrete and indefensible, and staring him in the face.
The irregularities and fraudulent registrations that surfaced during the Ijok by-election on 28 April 2007 include:
- Over 50 dead voters were still on the electoral roll and 12 of them, all of them Malays from the Jaya Setia polling district, rose up from their graves to cast their votes on polling day.
- Three Chinese voters at Pekan Ijok had their votes stolen by impostors, who had turned up earlier at the polling station.
- As many as 23 voters were registered without national identity cards.
- As many as 32 voters aged between 100 and 132 years old were still listed on the electoral rolls.
What is Tan Sri Rashid’s response to the experience of prominent blogger Ahiruddin Attan when he went to register himself as a voter earlier this year and found that not only was he already registered but had voted in two previous elections without knowing about it!
In light of all these clear-cut examples, how can Rashid still claim there was no vote-rigging or fraud when it has been proven by factual events as well as in court?
v. Constitutional Amendment Bill
BERSIH strongly objects to the Constitution Amendment Bill, which is clearly intended by its rushed timing to allow Election Commission (EC) chairperson Tan Sri Abdul Rashid Abdul Rahman’s tenure to be extended for another year.
The Bill was tabled for first reading in Dewan Rakyat on 20 November 2007 and second reading will take place on 11 December.
Tan Sri Rashid, who is due to retire on 31 December upon reaching the age of 65, may serve an extra year after the Bill comes into implementation.
We have no objection in principle to a standardization of the retirement age to 66 years for members of the EC. But BERSIH objects to the manner in which this amendment is being bulldozed through Parliament. Why is it that Tan Sri Rashid has to be retained at all costs?
Surely it cannot be that only Tan Sri Rashid is the only person in this country who can function as the Chairman of the EC. In fact, the insistence of the BN on retaining him through this amendment shows that his presence is necessary to them in continuing the current unfair and unjust faulty system.
The threats from the EC chief that he would engineer the shortest election campaign period ever, if “some parties continued to buat huru-hara (create chaos) and shout in the street” show that he is clearly unfit to function as a neutral referee of a electoral contest where he is supposed to ensure a level playing field.
Rashid Must Go
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 duty-bound to address the concerns of the Malaysian public.
As one of the institutions governing 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 Rashid has only further demonstrated the EC’s weakness and inability to conduct a clean and fair election.
In the interest of the nation and democracy, we urge Tan Sri Abdul Rashid to resign now, honourably.
A retired judge of impeccable integrity should be appointed in his place.
BERSIH protest on 11 December
BERSIH will hand over a protest note to the Speaker of Parliament calling upon him to not to allow the Constitutional Amendment Bill for this sitting and request that the Government re-table it next year.
Regardless of the passage of the Bill, BERSIH calls upon the government to ensure that Tan Sri Rashid is not reappointed to the position of Chairman of the EC after his retirement on 31st December 2007 as an important step in the process of reforming the election process in Malaysia.
Remove Rashid now! DON’T RUSH IT For RASHID!
BERSIH STREERING COMMITTEE