By ANIZA DAMIS and ELIZABETH JOHN
16 March, 2008
On one minute and off the next, controversial new procedures grabbed as much of the spotlight as any popular candidate in the recent election. ANIZA DAMIS and ELIZABETH JOHN speak to Abdul Malek Hussin, who heads the Malaysians for Free and Fair Elections (Mafrel), about the cancellation of indelible ink use and other topics.
Q: What is your opinion of the indelible ink episode?
A: We were informed by the Election Commission of its decision to cancel the use of indelible ink to be applied on voters’ fingers, a day after the decision was announced.
EC chairman Tan Sri Abdul Rashid Abdul Rahman said there were two main grounds for cancelling its use.
The first was the issue of security, based on the reports submitted by Inspector-General of Police Tan Sri Musa Hassan.
The second was legal grounds, based on explanations given to him by the attorney-general.
Q: What did you think of the explanations?
A: With the indelible ink, we don’t buy it. It holds no water.
Counterfeiting is a problem, and it’s not limited to indelible ink being circulated in the country.
There is the counterfeiting of credit cards, but this is not sufficient to nullify the use of credit cards.
The A-G’s argument is that elections held in the country must be based within due perimeters of the law.
Under Article 119 of the Federal Constitution, every citizen has a right to vote, if he fulfils these three requirements: he has attained the age of 21 on qualifying day, is resident of a constituency and a registered voter on the electoral roll.
The use of indelible ink is not regulated by any law. As such, it is not legally enforceable.
If it is enforced during the election without any legitimacy, it can be subject to challenge in the court of law.
Mafrel realised this technical legal requirement, which is why we recommended amendments to the law in our report to the EC on the Ijok and Machap by-elections last year.
Among the 30 recommendations, two highlighted the need to enforce the use of indelible ink on voters’ fingers in future elections, and the need to amend legislation to legitimise the practice.
Q: What was the date of the report?
A: It was submitted to the EC on Nov 19 at an official meeting between Mafrel and the EC’s panel of commissioners.
Q: Did the report point out which legislation had to be amended?
A: Yes. Regulation 19 of the Elections (Conduct of Elections) Regulations 1981.
This section specifies the manner of voting, from collecting the ballot paper to dropping it into the ballot box. So, when you want to use indelible ink, it must be specified, too.
We had actually made this recommendation after the Sarawak state election in 2006.
Q: So you made the recommendation much earlier?
A: Yes, and we raised it again publicly in January.
I called upon the EC to regulate and gazette the amendment to pave the way for the use of indelible ink in any election.
Q: So they only needed to amend that regulation?
A: If they could amend the Constitution in a hasty manner to extend the tenure of the EC chairman, why couldn’t steps have been taken then to amend the Constitution on this matter?
Especially with regards to indelible ink, which had become one of the main contentious election issues that led to the Coalition for Clean and Fair Elections (Bersih) rally in Kuala Lumpur.
If they had given thought to the issue, the problem of having to cancel its use could have been avoided.
As they cancelled it four days before voting, it could have led to misgivings that contributed to the electoral loss of the BN government.
Q: So you mean they lost because of the cancellation?
A: My argument is not on the result, because we didn’t know then what the result would be.
There had been public outcry, demanding the use of the indelible ink.
The IGP was worried about probable chaos on polling day if the indelible ink were to be applied, since unscrupulous people might try to apply it on gullible voters before polling.
But I told Rashid, that if the indelible ink was not used, there was an even greater possibility of chaos.
Q: You told him this? What did he say?
A: He has to comply with the law.
Q: And how did you feel?
A: We had been campaigning for it, so, of course, we were upset. They didn’t ask for our views, despite Mafrel being an independent election observation body accredited by the EC itself.
In spite of discussions and meetings held to implement the use of the indelible ink, we were caught by surprise by the decision.
Q: What is Mafrel’s position on the stamp duty issue? (This year, candidates had to pay stamp duty for the statutory declaration forms that accompanied their nomination forms. The requirement was withdrawn on nomination morning.)
A: The announcement for the enforcement of the stamp duty was made four days before nomination day.
This placed constraints on candidates on both sides of the divide. Friday is a holiday in Terengganu, Kelantan and Kedah while Saturday is a half-day. On Sunday, you have only one hour to get the forms stamped before nomination time, from 9am to 10am.
This also inconvenienced candidates in remote constituencies such as Sabah and Sarawak, although they had a longer period compared with their counterparts in the first three states.
Parties also nominated candidates at the last minute, incurring more difficulties on their part in getting the forms stamped.
We asked the EC for an explanation. The secretary showed me the Stamp Act, the Elections (Conduct of Elections) Regulations 1981, and a precedent of a court case in the mid-1960s as authority.
It was a case of an election petition submitted in East Malaysia, challenging the eligibility of a candidate.
The court ruled there was a necessity for the stamp duty to be applied on the statutory declaration form.
When the secretary was asked about the reason behind the withdrawal on the last day, he said aggrieved parties could file an election petition to challenge the decision of the returning officer, over the eligibility of candidature of any candidate that failed to fulfil the requirement of the stamp duty of the statutory declaration form.
Q: Were there any objections on these grounds?
A: On nomination day in the parliamentary constituency of Titiwangsa in Kuala Lumpur, opposition candidate Dr Lo’ Lo’ Mohamad Ghazali objected to the returning officer over the failure of the BN candidate Datuk Aziz Jamaludin Mohd Tahir to have his nomination supported with a stamped statutory declaration.
Her complaint was rejected by the returning officer on the grounds that he had received instructions that such a requirement had been withdrawn.
I don’t know whether there were similar cases elsewhere.
Q: Was it a ploy to disadvantage certain parties?
A: I’m not in a position to respond to political questions. We are election observers, so we just observe.
Q: Why do you think there were so many unreturned ballot papers this time, even with the introduction of transparent boxes?
A: During the Ijok by-election, there was the case of 143 unreturned ballot papers. We urged the EC to investigate.
The EC explained last November that those ballots came from two out of 28 polling stations. One had 142 unreturned ballot papers and the other had one.
It was discovered that the 142 were not unreturned ballots. It was merely a technical error by the presiding officer, who had inadvertently recorded the number of unused ballot papers as “unreturned”.
There was actually only one unreturned ballot paper.
Q: What about the Lumut parliament seat, which had the highest unreturned ballot paper count this election (2,948 ballot papers unreturned)?
A: We were shocked with the data. Mafrel has decided to investigate that case where nearly 5,000 ballot papers (2,948 parliamentary and 2,044 state) were unreturned.
This has happened in Lumut before. It has a large number of postal voters, since it is home to the main naval base.
Postal votes was one of the main issues before the elections, to the point where people had called for it to be abolished.
Q: Would you recommend that it be abolished?
A: If our findings show that a process needs to be improved, we will recommend it. This is not confined to postal voting.
Should we say that soldiers shouldn’t vote? No. We have to find ways to settle this matter.
If people in remote areas like the Ba’ Kelalan highlands had managed to vote, why can’t the army, which is regimented and has helicopters, arrange for its personnel to be regular voters?
Q: What else will Mafrel investigate?
A: We will assess the extent and implication of “phantom voters” in Terengganu, which saw violence on polling day over this issue.
We will also assess the extent and implication of postal voting procedures and processes in Setiawangsa, Ketereh, Bandar Kuching and Jeli.
Complaints received from stakeholders, including voters, over irregularities deemed unlawful, such as corrupt practices and bribery, will also be addressed.
Q: During this election, was Mafrel present at all the camps?
A: Last time, there were no observers or candidates’ agents during polling. This time, we were at a few places like Setiawangsa and the Balik Pulau camps. Did our presence have an impact?
Q: But didn’t Mafrel pull out just before polling day?
A: I withdrew. I was not inside the polling area but outside. It is just a statement to make a point. That doesn’t mean we are going to discard our responsibility.
Q: How many complaints have you received?
A: We have received two police reports. One regarding a claim of vote-buying in Sarawak for the constituency of Sri Aman, and the other about stuffing of votes.
Q: Stuffing of votes?
A: There are all sorts. For instance, if you return your ballot paper to a different polling station, that’s considered stuffing. In this case, a ballot paper from Batang Lupar was found in Sri Aman.
We are appealing to people not to take the law into their own hands. Instead, they should file a complaint.
But, they must recall details — the whens, whos and hows — of their complaints. We can help them to address these complaints through police reports and from there, the authorities will decide.
We won’t draw any conclusions until the investigation is done.
Q: When do you expect to get reports from all Mafrel’s observers?
A: We have a deadline for Mafrel’s 591 accredited observers, 333 of whom are also accredited by the EC. They have to submit their reports by March 15 to the Mafrel headquarters.
We will produce an interim report in 30 days after the election day. The final report will be ready three months from the end of the entire election process.
The reports will be given to the EC first, as this is one of the requirements of our accreditation.
We will also distribute them to the prime minister, deputy prime minister, menteris besar and all related government agencies and political parties.
Non-governmental organisations and the media will also get copies.
We will raise issues of the cancellation of indelible ink and stamp duty in our reports.
Q: Have you received any requests for the report?
A: Yes. From universities in the United States, Singapore, Canada and the European Union.
Institusi dalam negeri langsung tak minta. (Local institutions didn’t ask at all). Are these people serious about reforming the electoral system and processes?
Q: Overall, how well do you think the election process went?
A: I’m not going to pass judgment until we’ve completed the compilation and analysis of our data from all our 591 observers.
'Put more thought into electoral process'